1 IN THE WESTERN DISTRICT COURT OF APPEALS STATE OF MISSOURI 2 3 LEE ALLEN MARTIN, ) ) 4 Appellant, ) ) 5 vs. )WD# 61674 ) 6 DIRECTOR OF MISSOURI ) DEPARTMENT OF REVENUE, ) 7 ) Respondent. ) 8 oOo 9 IN THE CIRCUIT COURT OF COLE COUNTY 10 STATE OF MISSOURI 11 LEE ALLEN MARTIN, ) 12 ) Plaintiff, ) 13 ) vs. )Case No. 01CV324209 14 ) DIRECTOR OF MISSOURI ) 15 DEPARTMENT OF REVENUE, ) ) 16 Defendant. ) 17 TRANSCRIPT ON APPEAL 18 JUNE 19, 2002 19 For the Plf./Appel.: For the Deft./Res.: Lee Allen Martin Keith Holcomb 20 Pro Se Earl Kraus Assistant Attorneys 21 General P.O. Box 899 22 Jefferson City, MO 23 REPORTED BY: PAMELA FICK, RPR, CCR, CSR 24 19th Judicial Circuit, Cole County, Division I 301 East High Street, Room 301-A 25 Jefferson City, Missouri 65101 (573) 634-9194 1 . 1 DEFENDANT'S EVIDENCE 2 EARL DANIEL KRAUS 3 Direct Examination by Mr. Holcomb 5 Cross-Examination by Mr. Martin 15 4 Redirect Examination by Mr. Holcomb 43 Recross-Examination by Mr. Martin 46 5 6 PLAINTIFF'S EVIDENCE 7 LEE ALLEN MARTIN 8 Testimony of Mr. Martin 50 Cross-Examination by Mr. Holcomb 52 9 10 11 12 PLAINTIFF'S EXHIBITS INDEX 13 REC'D 14 Exhibit No. 1 Copy of the statement 15 from the court reporter 18 16 Exhibit No. 2 Transcript 27 17 18 19 20 21 22 23 24 25 2 . 1 P R O C E E D I N G S 2 THE COURT: All right. For the record, 3 the matter before the Court is the case styled 4 Lee Allen Martin versus the Director of the 5 Missouri Department of Revenue and others in 6 Cause No. 01CV324209. 7 Plaintiff is here in person pro se. 8 Defendants appear by counsel. 9 Gentlemen, this is a fairly thick 10 stack, but the first motion I see since the last 11 appearance here in the court file is Mr. Martin's 12 Motion for Sanctions filed on May 28th. 13 Mr. Martin, I've read your motion. Is 14 there anything you want to say in support of your 15 motion? I don't need you to repeat what's in it. 16 But anything you want to say in support of it? 17 MR. MARTIN: Your Honor, I will stand 18 on my motion. 19 THE COURT: All right. That Motion for 20 Sanctions is overruled. 21 MR. MARTIN: Your Honor, could I, for 22 the record, make the objection? 23 THE COURT: Beg your pardon? 24 MR. MARTIN: Could I, for the record, 25 make the objection? 3 . 1 THE COURT: Objection to what, 2 Mr. Martin? 3 MR. MARTIN: The ruling. 4 THE COURT: I don't expect you to like 5 it, Mr. Martin; you just have to live with it 6 until the Appellate Court tells me otherwise. 7 The next motion is Defendant's Motion 8 for Continuance. And it would seem to me that 9 apparently that motion is inextricably connected 10 to the Motion for Sanctions filed on June 14th by 11 defendants. Am I correct, gentlemen? 12 MR. HOLCOMB: That's correct, your 13 Honor. 14 THE COURT: So we'll take those up 15 next. Mr. Kraus, do you have, or Mr. Holcomb -- I 16 don't know who's doing this -- have evidence you 17 wish to present in support of your motion? 18 MR. HOLCOMB: Yes, your Honor. We'll 19 call Mr. Kraus. 20 THE COURT: All right. Mr. Kraus, will 21 you come up to be sworn, please. 22 EARL DANIEL KRAUS, having first been duly sworn, 23 testified as follows: 24 THE COURT: Thank you. Please have a 25 seat. 4 . 1 Your witness, sir. 2 DIRECT EXAMINATION BY MR. HOLCOMB: 3 Q. Mr. Kraus, will you please state your 4 full name. 5 A. Earl Daniel Kraus. 6 Q. And where are you currently employed? 7 A. I'm employed with the Attorney 8 General's Office. 9 Q. What is your position at the Attorney 10 General's Office? 11 A. I'm an Assistant Attorney General. 12 Q. Are you involved in the case, Lee Allen 13 Martin v. Director of Revenue? 14 A. Yes, I am. 15 Q. And how are you involved in that? 16 A. I am one of the counsel representing 17 the defendants in that case. 18 Q. So are you familiar with Mr. Martin? 19 A. Yes, I am. 20 Q. Do you know him by sight? 21 A. Yes. 22 Q. Did you ever attempt to take the 23 deposition of Mr. Martin? 24 A. Yes, I did. 25 Q. When was the first time? 5 . 1 A. The first time was in -- let's see. It 2 was noticed up in January of this year, 2002, set 3 for February 2002. However, that ultimately got 4 continued. 5 Q. Who ordered it continued? 6 A. Judge Joyce. 7 Q. So it did not take place in February? 8 A. No, it did not. 9 Q. Did you ever file a second Notice of 10 Deposition? 11 A. Yes, I did. 12 Q. When was that? 13 A. That was noticed up to be held on May 14 the 21st of 2002 in Springfield at 10:30. 15 Q. Did Mr. Martin file any objections to 16 that notice? 17 A. Yes, he did. 18 Q. And what did he file? 19 A. He filed a motion to -- let's see. I 20 think this was a Motion to Suppress the Notice of 21 Deposition. 22 Q. Motion to Quash Deposition or was it 23 suppressed? 24 A. Excuse me? 25 Q. So he filed an objection. Was there a 6 . 1 hearing held on his motion to suppress or quash? 2 A. Yes. That was held on May the 20th. 3 Q. And what was the judge's ruling on 4 that? 5 A. The judge ruled that he -- he overruled 6 the motion. 7 Q. Did he order Mr. Martin to have his 8 deposition taken? 9 A. Yes, he did. 10 Q. Did you -- where was the deposition 11 supposed to take place? 12 A. The deposition was scheduled to take 13 place in Springfield in a room within the Attorney 14 General's Office in Springfield, Missouri. 15 Q. And what was the date and the time of 16 the deposition that was noticed up? 17 A. For May the 21st, 2002, at 10:30 a.m. 18 Q. What time did you arrive? 19 A. I arrived about -- well, I went down 20 the night before and stayed over and then went 21 over to the office and arrived at the Attorney 22 General's Office at about 10:15, 10:10, something 23 like that. 24 Q. Was anybody -- was there a room set 25 aside for that deposition? 7 . 1 A. Yes, there was. 2 Q. When you arrived was anybody else 3 present for the deposition? 4 A. The court reporter had already arrived 5 and had set up her reporting equipment, and 6 Mr. Martin was also already present. 7 Q. Was he in the room with the court 8 reporter? 9 A. When I arrived Mr. Martin was in the 10 waiting area of the Attorney General's main 11 reception area, and the court reporter was already 12 set up in the deposition room. 13 Q. All right. Was Mr. Martin brought in 14 for the deposition to the room with the court 15 reporter? 16 A. Yes. At the point I arrived, I was 17 directed back to where the deposition was to take 18 place, and the court reporter was already set up. 19 And Mr. Martin and I both went back at the same 20 time. 21 Q. Did Mr. Martin have anything to say to 22 the court reporter when he went back there? 23 A. Yeah. When we first went back and sat 24 down, there were introductions, and Mr. Martin 25 began to ask the court reporter where she was 8 . 1 from, how long she's lived in the area, how long 2 she's -- he started in with how long has she been 3 a court reporter and has she ever done work for 4 the Attorney General's Office before. And at that 5 point I interrupted and basically generally stated 6 that we needed to wait until you, Keith Holcomb, 7 arrives and to go on the record before we start 8 the deposition, because I viewed that as the 9 beginning of the deposition. 10 Q. What happened then? 11 A. Well, then Mr. Martin and I debated 12 basically whether he should be able to go ahead 13 and ask these questions of the court reporter. 14 MR. MARTIN: Your Honor, I object to 15 the term debated. Could he be more specific? 16 THE COURT: Overruled. 17 MR. HOLCOMB: Thank you. 18 BY MR. HOLCOMB: 19 Q. Continue, please. 20 A. And there was some back and forth, and 21 then there was some silence and -- 22 Q. Okay. What happened at that point in 23 time? Did I arrive? 24 A. I believe there were additional 25 questions from Mr. Martin before your arrival. 9 . 1 Because I know I interrupted more than once -- 2 Q. And what was the -- 3 A. -- to stop the questions. 4 Again, of the nature of, How long have 5 you been a court reporter, do you know your oath, 6 what is your oath, that type of thing. And then 7 at some point in there you arrived. 8 Q. Did you ever attempt to take 9 Mr. Martin's deposition? 10 A. Yes. 11 Q. Okay. What happened when you -- did 12 you ever ask the court reporter to swear him in? 13 A. Yes, we did. 14 Q. And what was Mr. Martin's response? 15 A. Well, at the point he was asked to 16 raise his hand to be sworn, he once again objected 17 to the court reporter. 18 Q. Did the court reporter ask him to raise 19 his hand and take the oath? 20 A. Yes, she did. 21 Q. Did you ask him to raise his hand and 22 take the oath? 23 A. I asked him numerous times if he was 24 going to agree to take the oath or accept an oath 25 or affirmation. 10 . 1 Q. Did I ever ask him to be sworn in or 2 take his oath? 3 A. Yes, you did, numerous times. 4 Q. And what was Mr. Martin's response to 5 all these requests to give the oath? 6 A. He objected to the court reporter, and 7 we explained numerous times that he could do that 8 on the record and we would proceed. But that's 9 not what happened. 10 Q. Did Mr. Martin have further questions 11 for the court reporter? 12 A. Honestly, Mr. Martin always had 13 questions for the court reporter. Any time we 14 attempted to proceed, he had more questions for 15 the court reporter. 16 Q. Well, what happened between Mr. Martin 17 and the court reporter? 18 A. Well, after this went on for a bit, the 19 court reporter ultimately -- you know, her face 20 got flushed, she teared up, she started crying, 21 tears were rolling down her cheeks. 22 She got up to leave the room. At that 23 point she said she couldn't do this anymore, just 24 got up to leave. At that point I believe you had 25 stopped her and convinced her to stay just for a 11 . 1 bit longer to get some on the record as to, you 2 know, what's going on. 3 It was at that point she asked 4 Mr. Martin to raise his hand -- we went on the 5 record. She asked him to raise his hand and be 6 sworn in. He objected again. 7 MR. MARTIN: Your Honor -- 8 THE WITNESS: That just sent her over 9 the top, and she left the room and wouldn't come 10 back. 11 THE COURT: Just a second. 12 MR. MARTIN: I don't believe there's 13 been any evidence or foundation for the statements 14 that the witness is testifying to. 15 THE COURT: Overruled. 16 BY MR. HOLCOMB: 17 Q. Did Mr. Martin ever question the ethics 18 of the court reporter? 19 A. Yes, he did. 20 Q. What did he say? 21 A. He -- 22 THE COURT: Sit down, Mr. Martin. 23 Go ahead. 24 THE WITNESS: Well, he asked her if she 25 knew her oath; if she didn't know her oath, how 12 . 1 can she do her job. Basically questioned her 2 ability to do her job. That is her career. 3 MR. MARTIN: Your Honor, I believe, 4 basically, this is too vague of a statement. 5 THE COURT: State your objection. 6 MR. MARTIN: Your Honor, could you ask 7 the witness to be more specific as to what was 8 actually said, other than basically? 9 THE COURT: You'll be able to 10 cross-examine him. To the extent that was an 11 objection, it's overruled. 12 BY MR. HOLCOMB: 13 Q. Did he question her ability to take his 14 deposition? 15 A. Yes, he did. 16 Q. Did he question her ability as a court 17 reporter? 18 A. Yes, he did. 19 Q. And did he question her ethics to give 20 him -- to get -- to do his deposition? 21 A. Yes, he did. 22 Q. Did he at any time state he was willing 23 to proceed with the deposition? 24 A. No. 25 Q. After the court reporter said -- she 13 . 1 burst into tears and I persuaded her to come back, 2 was Mr. Martin then explained the consequences of 3 his choice of failure to cooperate with the 4 deposition? 5 A. Yes, he was. 6 Q. Was he given a chance to state that he 7 would -- say that he would cooperate with the 8 deposition? 9 A. Yes, he was. 10 Q. Did he ever provide any assurances that 11 he would cooperate with the deposition if it 12 continued? 13 A. No. 14 Q. Did you attempt, or the court reporter 15 attempt, or did I attempt to find another court 16 reporter after the first one left in tears? 17 A. Yes, we did. The office staff there at 18 the Springfield Attorney General's Office did 19 attempt to contact this court reporter's company 20 to obtain another court reporter and also another 21 court reporting company to see if they had any 22 reporters available, and there weren't any. 23 Q. Did the deposition of Mr. Martin take 24 place on May 21st, 2002? 25 A. No, it did not. 14 . 1 Q. Why didn't it take place? 2 A. Because Mr. Martin refused to take an 3 oath to participate in the deposition. 4 MR. HOLCOMB: No further questions. 5 THE COURT: Cross-examination. 6 MR. MARTIN: Thank you, your Honor. 7 CROSS-EXAMINATION BY MR. MARTIN: 8 Q. Mr. Kraus, did you say you've been with 9 the Attorney General's Office for several years? 10 A. I don't think I said. 11 Q. Okay. Would you tell us how long 12 you've been with the Attorney General's Office? 13 A. It's been about a year. 14 Q. About a year. And you've been involved 15 in depositions before? 16 A. That's correct. 17 Q. All right. I believe you have 18 proffered two exhibits. Are you familiar with the 19 two exhibits you proffered in this motion that's 20 being the evidentiary hearing that's being held on 21 at the moment? 22 A. Could you show me what you're referring 23 to? 24 Q. Are you familiar with this exhibit 25 marked No. 1? 15 . 1 A. Yes, I am. 2 Q. Are you familiar with this exhibit 3 marked No. 2? 4 A. The Exhibit No. 2 attached to the 5 Motion for Sanctions? 6 Q. Yes, sir. 7 A. Yes, I am. 8 Q. Okay. So you presented these to the 9 Court, did you not? 10 A. Our office filed these with the Court, 11 yes. 12 Q. Is this your signature? 13 A. On the Motion for Continuance, yes, 14 that's my signature. 15 Q. Are you familiar with Mr. Kraus's 16 signature? 17 A. I'm familiar with my signature, yes. 18 Q. Are you familiar with Mr. Holcomb's 19 signature? Excuse me. 20 A. Somewhat. 21 THE COURT: Mr. Martin, what's this got 22 to do with the Motion for Sanctions? 23 MR. MARTIN: Setting a foundation, your 24 Honor. 25 THE COURT: For what? 16 . 1 MR. MARTIN: For the exhibits that's 2 already been presented. 3 THE COURT: No exhibit's been presented 4 by counsel for defendants. 5 MR. MARTIN: Okay. At this time I 6 would like to present some exhibits if that's 7 okay. 8 THE COURT: You can make an offer and 9 we'll take it up from there. Do you have 10 something you want marked as an exhibit? 11 MR. MARTIN: Yes. I'd like to mark 12 this as Exhibit -- I believe it would have to be 13 Exhibit A. It's already marked Exhibit 1. 14 THE COURT: Well, we use numbers for 15 plaintiffs. This document will be marked as 16 Plaintiff's 1 with today's date and my initials. 17 All right. Plaintiff's 1, gentlemen. 18 You see what this is. Apparently it was -- it's a 19 copy of the statement from the court reporter that 20 was attached to your motion. 21 Do you wish to offer that into 22 evidence, sir? 23 MR. MARTIN: Yes, I do. 24 THE COURT: Any objection? 25 MR. HOLCOMB: No, your Honor. 17 . 1 THE COURT: All right. Plaintiff's 1 2 is admitted into evidence. 3 (PLAINTIFF'S EXHIBIT NO. 1 WAS RECEIVED 4 INTO EVIDENCE AND MADE A PART OF THE RECORD.) 5 MR. MARTIN: Can I use this to question 6 the witness, your Honor? 7 THE COURT: You can certainly take your 8 exhibit back. 9 BY MR. MARTIN: 10 Q. Would you say this is a true and 11 accurate statement of the court reporter at the 12 time on May 21st, 2002? 13 MR. HOLCOMB: Objection, your Honor. 14 He hasn't established that he knows what this 15 document is. He hasn't established -- he didn't 16 sign it. It's not Mr. Kraus's signature. 17 THE COURT: The objection is sustained. 18 Lay your foundation. 19 BY MR. MARTIN: 20 Q. Are you familiar with this exhibit, 21 Mr. Kraus? 22 A. I'm familiar with that document, yes. 23 Q. Did you present this -- did you attach 24 this exhibit to your Motion for Continuance? 25 A. Yes, I did. 18 . 1 Q. When you did that, was you familiar 2 with this? Had you read this? 3 A. Yes. And once again, I was familiar 4 with it. 5 Q. Do you believe this is a true and 6 accurate statement? 7 MR. HOLCOMB: Objection, your Honor. 8 Calls for speculation on his part if he knows the 9 statement is true. 10 THE COURT: Overruled. You can answer 11 it, sir. 12 THE WITNESS: Well, since I was there 13 and she's testified -- 14 BY MR. MARTIN: 15 Q. Yes or no, please. 16 A. What was the question again? 17 Q. Is this a true and accurate statement, 18 in your opinion? 19 A. Sure. 20 Q. Okay. Do you believe this was properly 21 certified and notarized, in your opinion? 22 A. Well, I wasn't there when it was 23 notarized, so I don't know. 24 Q. Do you recognize the notary seal right 25 here? 19 . 1 A. That looks like a notary seal. 2 MR. HOLCOMB: Objection, your Honor. 3 Relevance as to the notary seal. 4 THE COURT: Mr. Martin, you put the 5 exhibit in. You can't put an exhibit in and 6 impeach your own exhibit. 7 MR. MARTIN: I'm not beating it, your 8 Honor. 9 THE COURT: Impeach is the word. You 10 can't impeach your own exhibit. What relevance is 11 it whether that statement is notarized or not? 12 MR. MARTIN: I'm not impeaching my own 13 exhibit, your Honor. 14 THE COURT: What relevance is it 15 whether that statement is notarized or not? 16 MR. MARTIN: Your Honor, it is 17 notarized by the person proposing the affidavit. 18 THE COURT: What relevance is it 19 whether it's notarized or not? 20 MR. MARTIN: It's not an affidavit 21 otherwise if it's not notarized. 22 THE COURT: You offered it. They 23 didn't object. It was admitted. It's in 24 evidence. There's no relevance to your inquiry. 25 The objection is sustained. 20 . 1 BY MR. MARTIN: 2 Q. You testified -- excuse me. 3 Just a second, your Honor. 4 You testified that I, the plaintiff in 5 this case, the person to be deposed, had 6 conversations with the court reporter; is that 7 true? 8 A. That's true. 9 Q. And at any time did you hear anything 10 rude during that conversation? 11 MR. HOLCOMB: Objection. That's a 12 rather vague question. 13 THE COURT: It's a common sense 14 impression. You can answer the question. 15 THE WITNESS: I thought so, yes. 16 BY MR. MARTIN: 17 Q. What qualifies you to make a decision 18 such as that, or speculation or an opinion such as 19 that? 20 A. My general knowledge of social 21 interaction and what rudeness is. 22 Q. What specific was ever said that was 23 rude on plaintiff's part? 24 A. Well, the questioning of the court 25 reporter's ethics and her ability to do her job. 21 . 1 And, I mean, the whole tone of the conversation, 2 for that matter. 3 Q. Well, I believe you say this is a true 4 and accurate representation, and I believe she 5 speaks to this as having small talk. Do you agree 6 with that? Was it just small talk? 7 A. That the whole conversation was small 8 talk? 9 Q. Well, the conversation she refers to, 10 do you believe this is an accurate -- 11 MR. HOLCOMB: Objection. He's 12 mischaracterizing the statement. The statement 13 speaks for itself. What it says is it started 14 with small talk, I believe what she thought was 15 small talk. 16 THE COURT: Ask your question again, 17 Mr. Martin. 18 BY MR. MARTIN: 19 Q. Weren't we just having small talk, the 20 plaintiff and the court reporter? Yes or no? 21 A. No. 22 Q. You didn't consider it small talk? 23 A. No. 24 Q. Did she consider it small talk? 25 A. It started out as small talk. It 22 . 1 didn't end up being that. 2 Q. When did it change, in your opinion? 3 A. After the first two or three questions. 4 Q. Well, what question did it go to -- at 5 what question in your memory did it rise above 6 small talk? 7 A. I would say after -- after the question 8 about where she was from and starting with the 9 questions about her length of time with -- of 10 being a court reporter. 11 Q. Did Ms. Sontag (phonetic spelling) at 12 any time up until that time have any emotional 13 outbreak? Wasn't it very civil and polite on the 14 part of all parties? 15 MR. HOLCOMB: Objection, your Honor. 16 He said up until that time, and I don't know which 17 time he's referring to. 18 THE COURT: Do you want to be specific 19 as to what point in time you're referring to? 20 BY MR. MARTIN: 21 Q. Up until Ms. Sontag's answer as to 22 whether she knew her oath of office, was 23 everything civil, polite, no emotion whatsoever, 24 everybody was -- I think that's enough. Was we 25 all civil and polite up to that, up to the 23 . 1 question of -- to the answer of -- to the question 2 of, Do you know your oath of office? 3 A. No, I don't think so. I think it was 4 before that. 5 Q. Do you remember what the court reporter 6 answered to, Do you know your oath of office? Yes 7 or no? 8 A. Generally, yes. 9 Q. Yes? 10 A. I don't remember exactly what she said. 11 Q. What was the court reporter's reply to 12 a civil question, Do you know your oath of office? 13 MR. HOLCOMB: Objection, your Honor. 14 He's mischaracterizing stating a civil question. 15 MR. MARTIN: It was a civil question. 16 That is a fact. 17 THE COURT: We're not testifying here. 18 We're asking questions, so just rephrase your 19 question. 20 BY MR. MARTIN: 21 Q. What was the court reporter's response 22 to, Do you know your oath of office? 23 A. Generally her response was that she 24 didn't remember exactly -- 25 Q. Do you remember? 24 . 1 A. No, I don't remember exactly what she 2 said. I can tell you generally what she said, and 3 she generally said that she didn't remember 4 exactly what her oath was because it was, I think 5 she said, three years ago, or a number of years 6 ago when she took her oath. 7 Q. Mr. Kraus, didn't she actually say, 8 "No, I don't remember my oath of office. I forgot 9 that a long time ago. It's been three years since 10 I was sworn to be a court reporter"? 11 A. I don't know if that's exactly what she 12 said or not. 13 Q. You don't remember that? 14 A. I don't remember word for word. 15 Q. That was a pretty important question. 16 MR. HOLCOMB: Objection, your Honor. 17 He stated what his memory of the event was. 18 THE COURT: Ask your next question, 19 sir. Don't argue with the witness. 20 BY MR. MARTIN: 21 Q. Was that a pretty important question? 22 Do you remember the plaintiff asking the question? 23 A. What question are we talking about? 24 MR. HOLCOMB: Objection, your Honor. 25 He's asking if that's a pretty important question. 25 . 1 BY MR. MARTIN: 2 Q. Okay. Do you remember the plaintiff 3 asking the question, Do you know your oath of 4 office? 5 A. Several times. 6 Q. Several times. Is it maintained on the 7 transcript that you provided for the Court? 8 A. Could you show me what you're referring 9 to? And what was your question? 10 Q. Is that question, the several times 11 that question was asked to the court reporter, I 12 believe it was your testimony -- 13 A. Correct. 14 Q. Is that maintained in the official 15 transcript that you provided for the Court? 16 MR. HOLCOMB: Objection, your Honor. 17 He's questioning about an exhibit that has not 18 been entered. 19 THE COURT: There isn't an exhibit in 20 evidence here of a transcript. So if you want it 21 marked -- do you want it marked? 22 MR. MARTIN: Your Honor, if I may, I 23 would like to enter the transcript -- I lost my 24 staple, your Honor. 25 THE COURT: All right. I'll put one 26 . 1 on. All right. The document handed to the Court 2 is marked as Plaintiff's 2. 3 MR. HOLCOMB: No objection, your Honor. 4 THE COURT: Having been offered by the 5 defendant and there being no objection, 6 Plaintiff's 2 is admitted. 7 (PLAINTIFF'S EXHIBIT NO. 2 WAS RECEIVED 8 INTO EVIDENCE AND MADE A PART OF THE RECORD.) 9 MR. MARTIN: Thank you, your Honor. 10 BY MR. MARTIN: 11 Q. Now, I believe your testimony is, 12 Mr. Kraus, that several times plaintiff asked the 13 court reporter if she knew her oath of office. 14 Does that exhibit, the official transcript which I 15 believe you provided, or Mr. Holcomb has 16 provided -- defendant's counsel has provided to 17 this Court, does it at any point show where that 18 question was asked? 19 A. Mr. Holcomb at one point refers to you 20 asking that question. 21 Q. But it was never on the official 22 record? 23 A. What wasn't? 24 Q. The question. 25 A. The question asked by you, no. 27 . 1 THE COURT: Well, I have a question. 2 Was there an official record being made at the 3 time the interchange was what you just testified 4 to? 5 THE WITNESS: No, there was not. 6 BY MR. MARTIN: 7 Q. Okay. Do you agree this is a factual 8 and authentic copy and fairly represents the 9 proceedings that morning of May 21st at 10 approximately 10:30 a.m. at the presumed 11 deposition of plaintiff? 12 A. Part of it, the part that there was a 13 record made. 14 Q. Are you testifying to something that's 15 not on this record? 16 A. Here today? 17 Q. Yes. 18 A. Yes. 19 Q. But do you have anything other than 20 your memory to support this? Are you saying -- 21 excuse me. Let me rephrase that. 22 Let's try something a little different. 23 You testified that you've been involved in several 24 depositions? 25 A. That's correct. 28 . 1 Q. How do you normally start a deposition? 2 MR. HOLCOMB: Objection, your Honor. 3 Relevance to this -- 4 MR. MARTIN: I believe this is an 5 expert witness that should be able to testify on 6 what the normal procedure for a deposition is. 7 THE COURT: I'll let him answer this 8 just because we're talking about characterizing 9 the plaintiff's conduct. 10 THE WITNESS: How do I start to take a 11 deposition? 12 BY MR. MARTIN: 13 Q. Yeah. How do you normally start a 14 deposition? 15 A. Well, normally we immediately go on the 16 record and the witness is sworn in, and then I 17 begin questioning the witness. 18 Q. Do you ever -- so you normally don't 19 even identify who the parties are that's present 20 for a deposition? 21 A. My first question is generally asking 22 the witness to state their name for the record. 23 Q. You don't normally identify yourself? 24 A. After we're on the record I do. 25 Q. Before you swear the witness, you don't 29 . 1 normally identify yourself, what the cause number 2 is, who is being deposed, the time, the day? 3 A. Well, no. The court reporter knows the 4 time because generally they have a watch. They 5 know the cause number because they received a copy 6 of the notice of deposition, and they know the 7 parties because they're listed on the notice of 8 deposition. 9 Q. Okay. What time do you -- did you 10 testify that the deposition began? At what 11 time -- 12 A. In Springfield on this -- 13 Q. We're talking about the deposition on 14 May 21st, 2002. At what time did that deposition 15 begin? 16 A. It was scheduled to begin, I believe, 17 at 10:30. 18 Q. Is that -- do you believe that's the 19 correct time that it began? 20 A. Thereabouts. 21 Q. For the record, would you read the last 22 parentheses in Plaintiff's Exhibit No. 2? 23 A. Here on line 21 I assume is what you're 24 referring to? 25 Q. Yes, I believe so. 30 . 1 A. "The proceedings concluded at 2 10:20 a.m. on May 21st, 2002." 3 Q. Thank you. Now would you like to tell 4 us what time we began this deposition? 5 MR. HOLCOMB: Objection, your Honor. 6 He's already stated he thought it began around 7 10:30. 8 THE COURT: Does that refresh your 9 memory of the times any more than you already 10 stated? 11 THE WITNESS: Well, it was scheduled to 12 start around -- on 10:30, at 10:30. I think I 13 stated earlier that I got there at about 10:10 or 14 10:15. Mr. Martin and I went back, and that's 15 when our discussions all began. 16 Now, as to whether that's the beginning 17 of the deposition or when we actually went on the 18 record -- which I believe, you know, could easily 19 have been before 10:30 -- 20 BY MR. MARTIN: 21 Q. Okay. 22 A. -- or not. I don't remember. 23 Q. So your testimony is about 10:15 you 24 and I proceeded to the room where the court 25 reporter was already sitting and already set up; 31 . 1 is that correct? 2 A. Yeah, I think that's correct. 3 Q. And I believe the court reporter states 4 in Exhibit No. 2 that the deposition ended at 5 10:20; is that correct? 6 A. Yes. 7 MR. HOLCOMB: Objection, your Honor. 8 The document speaks for itself. 9 THE COURT: Sustained. 10 BY MR. MARTIN: 11 Q. So am I to -- is the Court to conclude 12 that all this asking of what is your oath to the 13 court reporter made by the plaintiff occurred in 14 five minutes? 15 A. Or thereabouts. 16 Q. Or thereabouts? 17 A. Sure. 18 Q. All right. When the plaintiff and 19 yourself went back to where the court reporter was 20 set up, and set down, was Mr. Holcomb present? 21 A. No. 22 Q. And how long was it before Mr. Holcomb 23 showed up? 24 A. I don't know. Five minutes. 25 Q. Five minutes? 32 . 1 A. I'm guessing. 2 Q. After Mr. Holcomb showed up, how long 3 was it -- did the deposition last? 4 A. It was short. 5 MR. HOLCOMB: Objection. I think his 6 testimony was the deposition never took place. 7 THE COURT: The witness answered the 8 question. Move on. 9 BY MR. MARTIN: 10 Q. On anyplace on Exhibit -- Plaintiff's 11 Exhibit No. 2 does it show anyplace where 12 plaintiff refused to be deposed? 13 A. Yes. 14 Q. Would you please state? 15 A. Well, starting at line 10 the court 16 reporter says, "Would you please raise your right 17 hand to be sworn?" And you say -- you start with, 18 "Do you have the authority to swear..." 19 Q. And you assumed that to be a refusal? 20 A. Well, that's not raising your right 21 hand to be sworn, so yeah. 22 Q. Did the plaintiff at anyplace say, No, 23 I will not be deposed. No, I will not be sworn, 24 at anyplace? 25 A. I don't recall you saying those exact 33 . 1 words. 2 Q. Did I say those exact words at any 3 time? 4 THE COURT: Asked and answered, 5 Mr. Martin. Ask your next question. 6 BY MR. MARTIN: 7 Q. Who called off the deposition? 8 A. Well, there wasn't a deposition because 9 you wouldn't be sworn. 10 Q. When was I allowed to leave the 11 building? Did I jump up and say, Well, she left 12 the room. I'm leaving. Did I do that? 13 A. No, you didn't. 14 Q. I sat right there, did I not? 15 A. You sat right there. 16 Q. Did I at any point make any effort to 17 leave the building and to leave the deposition? 18 A. Well, you left at some point. 19 Q. Do you remember why I left? 20 A. You left because when Keith and I -- 21 well, you left the deposition room when Keith and 22 I left the room. 23 MR. MARTIN: Well, let the record show 24 that Keith is Mr. Holcomb. 25 BY MR. MARTIN: 34 . 1 Q. When Mr. Holcomb and you said what? 2 A. When Mr. Holcomb and I left the 3 deposition room, then you also left the deposition 4 room. 5 Q. When did I leave the 10th floor and 6 leave your presence? 7 MR. HOLCOMB: Objection, your Honor. 8 He's already stated he doesn't have an exact 9 recollection of the time. 10 BY MR. MARTIN: 11 Q. Do you recollect when I got on the 12 elevator? 13 A. After we left the deposition room. 14 Q. Was you with me when I got on the 15 elevator? 16 A. I was outside of the elevator, as I 17 recall. 18 Q. Did you tell me it was time for me to 19 leave? 20 A. As I recall, when we were back in the 21 deposition room, you wanted to stay back there, I 22 think. I don't remember. 23 Q. So you don't remember what prompted me 24 to leave? 25 A. Not specifically, no, other than that 35 . 1 the deposition hadn't taken place. 2 Q. Did you ask -- did you ask to escort me 3 out of the building? 4 A. I think I said I would walk with you 5 from the deposition room back to the main 6 reception area, which it was down several hallways 7 and through a couple doors. 8 Q. Did you not stand at the elevator with 9 me and say that I'm not an employee of the State 10 and I have no business in this building? 11 MR. HOLCOMB: Objection. I don't think 12 that's his testimony. 13 MR. MARTIN: I don't believe he's 14 testified one way or the other. I think that's a 15 simple yes or no question. 16 BY MR. MARTIN: 17 Q. Did you say that? 18 A. Did I say that exactly? No. 19 Q. Did you say something real close? 20 A. I believe I said something to the 21 effect of when we were back in the back offices 22 that you couldn't stay back there by yourself 23 because it was a private area, it wasn't a public 24 area and you weren't an employee there. 25 Q. So is that what prompted me to follow 36 . 1 you and Mr. Holcomb out of the private area? 2 A. It may have been. 3 Q. And at any time did you say, We're not 4 going to hold this deposition today? 5 A. No, I don't think so. 6 Q. So is it your testimony that I left 7 this deposition with no instructions from 8 defendant's counsel to leave? 9 A. Well, no. I mean, like I said before, 10 when we were back in the back room, I wasn't going 11 to go off and leave you back there by yourself, 12 but I don't think I told you you had to leave the 13 building. 14 THE COURT: Mr. Martin, none of this is 15 relevant. The State is seeking sanctions against 16 you for refusing to take the oath and be deposed, 17 not alleging that you left the building before 18 your deposition could be taken. 19 MR. MARTIN: Okay. Thank you, your 20 Honor. 21 THE COURT: The question here is 22 whether or not you refused to take the oath and 23 therefore frustrated and made the deposition 24 impossible. Let's get back and put our eye on the 25 ball, please. 37 . 1 Any other questions for this witness? 2 MR. MARTIN: Yes, your Honor, if I may. 3 THE COURT: Move it on. 4 MR. MARTIN: I'm trying. 5 BY MR. MARTIN: 6 Q. How many times is it -- did -- 7 Plaintiff's Exhibit No. 2, does anybody call this 8 to order, call this deposition to order? 9 A. I'm not sure what you mean. 10 MR. HOLCOMB: Objection, your Honor. 11 Relevance. 12 THE COURT: Sustained. Next question. 13 It's not relevant. 14 BY MR. MARTIN: 15 Q. Is it your testimony I at no time said 16 I refused to be swore? 17 A. You objected to being sworn. 18 Q. Did I ever use the term objection? 19 A. I don't recall if you used that exact 20 word or not. 21 Q. Would you like to examine Plaintiff's 22 Exhibit No. 2 to see if you can find where I used 23 the term objection? 24 THE COURT: The document speaks for 25 itself. Ask your next question. 38 . 1 MR. MARTIN: Your Honor, it does -- I 2 never used the term objection. 3 THE COURT: The document speaks for 4 itself. You'll be able to testify in a minute, 5 Mr. Martin. Now's not your time to testify. 6 MR. MARTIN: Thank you, your Honor. 7 BY MR. MARTIN: 8 Q. So in your learned opinion, who called 9 off -- who called off the deposition? 10 MR. HOLCOMB: Objection as to opinion. 11 THE COURT: Overruled. 12 THE WITNESS: Well, first there wasn't 13 a deposition and it wasn't called off. It didn't 14 happen. 15 BY MR. MARTIN: 16 Q. And why is it? 17 A. Because you wouldn't be sworn in, and 18 you got the court reporter so upset, she left and 19 wouldn't come back. 20 Q. All right. Back to the court reporter 21 was being so upset, when did the court reporter 22 get upset? 23 A. That morning. 24 Q. Can you be more specific? 25 MR. HOLCOMB: Objection. The 39 . 1 question -- I don't understand it myself. 2 THE COURT: I think the witness 3 understands the question. Answer as best you can. 4 THE WITNESS: She got upset -- she 5 started to get upset following the questions about 6 where she was from and where she lived. 7 BY MR. MARTIN: 8 Q. And how did you determine that? Did 9 she start crying at that point? 10 A. No. She started crying later. I 11 determined that -- 12 Q. And when was that? Was there anything 13 that in your opinion -- I can't ask your opinion. 14 At what point did her emotional 15 distress become apparent? 16 A. Again, when you started questioning her 17 oath and her ability to do her job, her face 18 became flushed, her voice started wavering, then 19 she finally started tearing up. Tears actually 20 started rolling down her cheek and off of her 21 face, and then she got up to run from the room. 22 I mean, at that point it was pretty 23 apparent -- 24 Q. Is that your testimony, she ran from 25 the room? 40 . 1 A. She was not walking, yes. 2 Q. Well, how do you -- do you demonstrate 3 this run? 4 MR. HOLCOMB: Objection, your Honor. 5 THE WITNESS: No. 6 MR. HOLCOMB: He's made a statement. 7 He's testified. Relevance. 8 THE COURT: Mr. Martin, you've got five 9 minutes to finish your cross-examination. Ask 10 your next question. It's alleged here that you 11 refused to take the oath and thereby frustrated 12 the taking of your deposition which this Court had 13 ordered. 14 BY MR. MARTIN: 15 Q. Is it -- is it possible that the court 16 reporter became upset because she didn't know her 17 oath of office? Is that a possibility? 18 A. I don't think so, no. Lots of things 19 are possible, but no, I don't think so. 20 Q. Is it a possibility? 21 A. Anything's a possibility. 22 Q. Well, what is it you think that upset 23 her so? 24 A. I think what upset her so is you 25 questioning her oath and her ability to do her 41 . 1 job. 2 Q. What was her answer to the question of 3 her oath? 4 MR. HOLCOMB: Objection, your Honor. 5 Whether the court reporter remembered her oath or 6 not is actually irrelevant. 7 THE COURT: It's irrelevant but it's 8 also been asked and answered several times. 9 Ask your next question, Mr. Martin 10 MR. MARTIN: Your Honor, I believe 11 this person testified he don't even -- he cannot 12 remember for sure what the court reporter's 13 response was to, Do you know your oath? 14 THE COURT: Ask your next question, 15 Mr. Martin. You've got two and a half minutes. 16 BY MR. MARTIN: 17 Q. Do you agree with the statement made by 18 the court reporter in Plaintiff's Exhibit No. 1 19 that we were just having small talk? 20 MR. HOLCOMB: Objection. We've already 21 gone through that once, your Honor. 22 THE COURT: Go ahead and answer the 23 question, sir. 24 BY MR. MARTIN: 25 Q. Do you agree? 42 . 1 A. I agree that at the beginning it was 2 small talk, sure. That's how it started out. 3 Q. But you can't ascertain exactly at what 4 point it went beyond small talk? 5 A. Well, I think you asked me before when 6 I thought it became not small talk, and I think I 7 said that it was after when you started 8 questioning her oath and her ability to do her job 9 as opposed to just where she's from. 10 Q. Was I loud and boisterous at any time? 11 A. You're loud and boisterous at many 12 times. 13 Q. So I wasn't out of character on that 14 morning is what you're saying; is that a correct 15 description? 16 A. From my perspective, no. 17 MR. MARTIN: No further questions, your 18 Honor. 19 THE COURT: Anything else, counsel? 20 MR. HOLCOMB: I just have one about the 21 oath. 22 REDIRECT EXAMINATION BY MR. HOLCOMB: 23 Q. Did Mr. Martin ever take his oath? 24 A. No, he did not. 25 Q. Was he ever asked to take his oath? 43 . 1 A. Yes, he was. 2 Q. Why didn't he take the oath? Did he 3 agree to do it? 4 A. No. He objected. 5 Q. All right. How many times was he asked 6 to take the oath? 7 A. Numerous times by the different people 8 there. 9 MR. MARTIN: Your Honor, I object. Can 10 he be a little more specific than numerous? It 11 was only a five-minute hearing. 12 THE COURT: Can you be more specific in 13 terms of -- 14 BY MR. HOLCOMB: 15 Q. How many times do you think Mr. Martin 16 was asked to take his oath? 17 A. He was asked on the record by the court 18 reporter to raise his hand to be sworn in once, 19 and he objected. He was asked by you and I, I 20 would say, three, four, five times a piece. 21 Q. And did he ever agree to take the oath? 22 A. No, he did not. 23 Q. How long were you there with Mr. Martin 24 before I arrived? 25 A. Five minutes or so. I don't remember 44 . 1 exactly. 2 Q. How long did the discussion go with 3 Mr. Martin after I arrived? 4 A. All in total? I mean, there was some 5 brief discussion. We attempted to go on the 6 record after the court reporter left. There was 7 significant more discussion between you and I and 8 Mr. Martin. 9 Q. About how long do you think you were 10 there -- how long between the time you arrived and 11 the time Mr. Martin left, just a rough 12 guesstimate? 13 A. Oh, I don't know. 45 minutes. 14 Q. Did you ever question Mr. Martin for 15 the deposition? 16 A. No. 17 Q. Why not? 18 A. Because he wouldn't be sworn in. 19 Q. Did you have a court reporter? 20 A. Yes, we did. 21 Q. All right. Did the court reporter 22 agree to do his deposition? 23 A. Yes, she did initially. 24 Q. And then did she ever leave and refuse 25 to do his deposition? 45 . 1 A. Yes, she did. 2 Q. And why did she leave and refuse to do 3 his deposition? 4 A. She was -- she said she was -- couldn't 5 take this and she was leaving. 6 Q. Did you attempt to make sure everything 7 was recorded on the record with all the 8 conversations with Mr. Martin? 9 A. Yes, I did. 10 Q. All right. Why wasn't the record of 11 Mr. Martin's questioning the court reporter on the 12 record? 13 A. Well, initially the court reporter 14 indicated that she couldn't report herself being 15 questioned, and later she was gone, so of course 16 she couldn't do any reporting. 17 MR. HOLCOMB: I have no further 18 questions. 19 MR. MARTIN: Your Honor, if I may just 20 have one or two more questions. 21 THE COURT: Go ahead. 22 RECROSS-EXAMINATION BY MR. MARTIN: 23 Q. I believe that you just testified that 24 you'd asked me to take the oath that morning three 25 or four times? 46 . 1 A. Something to that effect, yes. 2 Q. In Plaintiff's Exhibit No. 2 how many 3 times does it reflect that I was asked to take an 4 oath? 5 MR. HOLCOMB: Objection, your Honor. 6 The document speaks for itself. 7 BY MR. MARTIN: 8 Q. Once? Will you agree with that, once? 9 THE COURT: Well, the document will 10 speak for itself. 11 BY MR. MARTIN: 12 Q. Was you asking me to take an oath and 13 swear off the record? 14 A. Yes. 15 Q. So was you asking to depose me off the 16 record that morning? 17 A. I was asking you whether you were going 18 to take the oath or not. 19 Q. You was asking if I would swear to an 20 oath; is that what your testimony is? 21 A. That's correct. 22 Q. So you really didn't ask me three or 23 four times -- 24 MR. HOLCOMB: Objection, your Honor. 25 BY MR. MARTIN: 47 . 1 Q. Isn't that correct? 2 THE COURT: What's the objection? 3 MR. HOLCOMB: He's already testified to 4 this, your Honor. He's gone over it and over it. 5 MR. MARTIN: I don't believe so, your 6 Honor. 7 THE COURT: Mr. Martin, ask your 8 question. That objection is overruled. 9 BY MR. MARTIN: 10 Q. Your testimony is that you attempted to 11 swear me in three or four times; yet the record, 12 Plaintiff's Exhibit No. 1, shows one occasion. 13 Did you attempt to swear me in and depose me off 14 the record? 15 A. I asked you if you were going to take 16 the oath. 17 Q. Is that the same as asking me to take 18 the oath? 19 MR. HOLCOMB: Objection, your Honor. 20 He's stated -- I mean he's already stated that he 21 told Mr. Martin to take the oath. That several 22 times it was done when the court reporter either 23 wasn't taking it down or was in tears. I don't 24 know where he's going. 25 THE COURT: Overruled. A couple more 48 . 1 questions, Mr. Martin, and that's it. 2 BY MR. MARTIN: 3 Q. In the five minutes that we attempted 4 to have a deposition -- no further questions, your 5 Honor. That's fine. 6 THE COURT: Thank you, sir. You may 7 step down. 8 Any other evidence for defendants on 9 your motion? 10 MR. HOLCOMB: No, your Honor. 11 THE COURT: Evidence by the Plaintiff 12 on this motion? 13 MR. MARTIN: Your Honor, I would ask to 14 be sworn in. 15 THE COURT: Raise your right hand. 16 LEE ALLEN MARTIN, having first been duly sworn, 17 testified as follows: 18 THE COURT: Have a seat. Now I'll hear 19 what you have to say. State your name for the 20 record, please. 21 MR. MARTIN: My name is Lee Allen 22 Martin. I live at 7050 County Road 2810, West 23 Plains, Missouri. 24 THE COURT: All right. What do you 25 want me to know about this, Mr. Martin? 49 . 1 MR. MARTIN: On the morning of the 21st 2 of May 2002, I arrived at the designated spot for 3 a deposition, the 10th floor of the state 4 building, 147 Park Central Square, Springfield, 5 Missouri. I at no time refused to be deposed. 6 I was having small talk with the court 7 reporter when I arrived. I had small talk with 8 Mr. Kraus when he arrived. I simply asked some 9 very simple questions. I asked her how long she'd 10 been doing this. This seems like a pretty nice 11 job. What kind of qualifications did you have to 12 do? 13 I believe the court reporter responded 14 that, well, she had to take a course for six 15 months and she had to pass a test. And I said, 16 "Well, did you have to take an oath?" "Oh, yeah," 17 she replied. "Yes, I have to -- I had to take an 18 oath." 19 And I said, "Well, could you just tell 20 me what that oath said?" At that point she kind 21 of giggled and said, "Oh, no. I forgot that a 22 long time ago. It's been three years since I was 23 swore in as a court reporter." 24 Well, at that point I asked her if -- 25 you know, "How do you function in your capacity? 50 . 1 Doesn't the oath mean something more than just you 2 forgot it?" 3 I believe at that point she got upset. 4 I didn't mean to upset Ms. Sontag. I didn't 5 question her. When we went on the -- when we 6 finally went on the record after being browbeat by 7 opposing counsel, the witness's first line in the 8 proceedings on page 3 of Plaintiff's Exhibit 2, 9 line 2: "All right. I want to make an objection 10 that the court reporter has so noted that she does 11 not know her oath of office, and thereby anything 12 that goes on here may or may not be true or 13 factual, and there's no way of guaranteeing this." 14 Simply. I never refused to take the 15 oath. I expected opponent's (sic) counsel to 16 simply call the deposition to order, state the 17 names of the people present, who the court 18 reporter was, what manner was being -- what manner 19 of recording was being presented, and the only 20 thing I got was Mr. Holcomb saying, "Fine. Let's 21 get started on the deposition. Swear the 22 witness." I have -- I had no malicious intent 23 whatsoever. It was small talk. 24 Your Honor, it lasted five minutes. I 25 didn't want to leave. Mr. Holcomb told me it was 51 . 1 time for me to leave the building, and he 2 volunteered -- I mean Mr. Kraus volunteered to 3 escort me out of the building. 4 At that point I said, "Well, isn't this 5 a public building? If you want me to leave and 6 you're calling this off, I'll leave." 7 That's my testimony. It's not 8 malicious in any way. 9 THE COURT: Mr. Holcomb? 10 CROSS-EXAMINATION BY MR. HOLCOMB: 11 Q. Did you ever take the oath on that day 12 of your deposition? 13 A. I don't believe the oath was ever 14 actually offered to me, except she said, "Would 15 you please raise your right hand to be sworn?" 16 And I said, "Well, do you have the authority --" 17 and I was cut off before I even got to finish the 18 question. 19 Q. Did you ever take the oath on the day 20 that your deposition was scheduled? 21 A. No. 22 Q. Did you ever agree you would take the 23 oath? 24 A. Yes, I did. 25 Q. As a matter of fact, you said you had 52 . 1 objected to the oath and you would not take it; 2 isn't that correct? 3 A. No. 4 Q. Were you told that if you did not 5 cooperate with the deposition that we would seek 6 sanctions? 7 A. I believe you did say that. 8 Q. And did you offer any assurances that 9 you were going to cooperate? 10 A. Yes, I did. 11 Q. All right. You've been so adamant 12 about the record here, I'm gonna read you right 13 here: "The court reporter is in tears now. I 14 want this on the record. Mr. Martin has so upset 15 her, she cannot further go on. I want this noted 16 on the record. We will make our motions for 17 sanctions unless you agree to cooperate. Now I am 18 going to end this deposition. I'm going to go to 19 the judge, and I'm going to get sanctions against 20 you. So it's your choice on how you want to 21 operate." 22 Your response was, "I object to that 23 statement. And my statement on the record is, 24 I've been polite; I've been cordial. I've only 25 asked for information that may tend to lead to a 53 . 1 conflict of interest." 2 Did you ever state that you would agree 3 to cooperate with the deposition? 4 A. I believe I was cut off. 5 Q. Did you ever state that you would agree 6 to cooperate with the deposition? 7 A. Yes, I did state that I would agree to 8 cooperate. 9 Q. That's not on the record anywhere, is 10 it? 11 A. Did we have a conversation off the 12 record? 13 Q. Yes, we did. And there was quite a bit 14 of it. How long were those conversations we had 15 off the record? 16 A. It all happened within five minutes, 17 didn't it? 18 Q. Is that your opinion, that all this 19 happened within five minutes? 20 A. I don't know. I didn't have a watch. 21 Q. All right. So you don't have an exact 22 recollection of how much time this actually took 23 place? 24 A. No. The only recollection I have is 25 what's been presented to the Court. 54 . 1 Q. What time did you arrive? 2 A. I think it was 10:30. 3 Q. So all this happened in less than minus 4 ten minutes according to your testimony? 5 A. Well, you know, people's watches can be 6 off. I don't have a watch. I don't wear a watch. 7 MR. HOLCOMB: I have no further 8 questions, your Honor. 9 THE COURT: Anything else you want me 10 to consider, Mr. Martin? 11 MR. MARTIN: Yes, your Honor, there is 12 one thing. Off the record Mr. Holcomb made a 13 statement to me that, you know, whether she knows 14 her oath of office or not makes no difference. In 15 fact, you know, public officials shouldn't be 16 required to know their oath of office. I don't 17 know mine is what Mr. Holcomb said. 18 Now -- 19 MR. HOLCOMB: Objection, your Honor, 20 the relevance of this issue on oaths of office. 21 MR. MARTIN: That's just -- that's just 22 what I remember, your Honor, and that's my 23 testimony. 24 THE COURT: All right. Thank you. You 25 may step back to your seat. 55 . 1 MR. MARTIN: Thank you. 2 THE COURT: Brief argument on your 3 motion. 4 MR. HOLCOMB: Your Honor, the only 5 thing I have to say is we've attempted to take 6 Mr. Martin's deposition. We've tried to take it. 7 We've tried everything. We've bent over 8 backwards. We went to Springfield to meet him 9 halfway. We have tried to be cordial in this 10 entire thing, and it's been impossible. 11 The only thing we have to say is, your 12 Honor, you ordered him on May 20th to have his 13 deposition taken. On May 21st he refused to 14 cooperate with his deposition. Therefore, the 15 only coping measure would be to dismiss his action 16 or at least to have a deposition ordered here in 17 the courthouse with costs taxed to Mr. Martin. 18 That's all we have, your Honor. 19 THE COURT: Mr. Martin? 20 MR. MARTIN: Your Honor, I showed up. 21 I was prompt. I was more prompt than either of 22 the attorneys. I at no time tried to avoid my 23 responsibility as a party in this suit to be 24 deposed. I asked a simple question, "Do you know 25 your oath of office?" The little lady got upset. 56 . 1 And it's not -- she has -- in my view, 2 a court reporter or any officer of the court has a 3 right to recognize a conflict of interest and 4 disqualify themselves at any time. I never asked 5 the proceedings to be stopped. I never -- what 6 I'm being accused of is innuendo not supported by 7 anything more than two pages of transcript and a 8 failing memory of Mr. Kraus as to the specifics. 9 I believe that the trial should proceed 10 as scheduled. I have done everything in my power. 11 The representation that I tried to avoid 12 deposition is not wholly true. 13 As your Honor will note, I've asked 14 that these depositions be taken by phone on the 15 one occasion that it was brought up here in this 16 courtroom. I've not refused to take the 17 deposition. I only questioned the manner. And 18 Rule 57.03 of the Missouri Supreme Court Rules 19 provides that I should at the earliest time 20 possible object to the court reporter. 21 I would have -- I would have accepted 22 and been deposed that day if the court reporter 23 would have done it. I actually told Mr. Holcomb 24 and Mr. Kraus, yes, I will be deposed. Thank you, 25 your Honor. 57 . 1 THE COURT: Mr. Holcomb? 2 MR. HOLCOMB: Nothing, your Honor. 3 THE COURT: Mr. Diemler, would you get 4 my copy of the Supreme Court rules, please? 5 Mr. Martin, do you want to direct me where within 6 57.03 where within 57.03 you're referring? 7 MR. MARTIN: Disqualification for 8 interest, I believe. Excuse me, your Honor. I 9 think I misquoted that. It's 57.05, Section D, 10 Disqualification for Interest. "No deposition 11 shall be taken before a person who is a relative, 12 employee or attorney or counsel of any of the 13 parties where it's a relative or employee of such 14 attorney or counsel or is financially interested 15 in the action." 16 THE COURT: Do you have any basis to 17 believe that this court reporter fit into any one 18 of those categories? 19 MR. MARTIN: I have the basis to 20 believe that the Attorney General's Office in 21 Springfield, Missouri solely uses Alpha, and that 22 in itself is de facto. I did not question the 23 court reporter. I asked her how many times -- I 24 asked her if she had done -- if she had done 25 depositions for the Attorney General's Office 58 . 1 before. 2 THE COURT: All right. Your 3 representation a minute ago -- you might have 4 misspoken the rule number, and that's all right, 5 but you indicated to me Supreme Court Rule 6 required you to raise that objection as soon as 7 possible. Where is that language in the rule? 8 That's what I understood you to say, at least. 9 MR. MARTIN: Your Honor, I believe I 10 may have misquoted that. I'm not sure if I can 11 find out -- I believe what it said is Supreme 12 Court ruling that says on appeal that the 13 objection to the Court personnel that's taking the 14 deposition must be raised at the earliest possible 15 moment. If the Court will give me just a little 16 leeway, I can see if I can't hunt that court case 17 up. 18 THE COURT: That's all right. Have a 19 seat, Mr. Martin. 20 Mr. Martin, this Court finds that you 21 willfully and without any good cause frustrated 22 the taking of your deposition as had been ordered 23 to take place in Springfield on May 21st, 2002. 24 This case is set for trial on June 20th. Time was 25 of the essence, further characterizing your 59 . 1 conduct. 2 This Court finds that you were rude and 3 abusive to an officer of the court. The 4 defendant's Motion for Sanctions is sustained. 5 The Court hereby orders your pleadings stricken in 6 total. Judgment of Dismissal of your case is 7 entered. 8 The costs of this proceeding, including 9 the cost associated with the attempted deposition 10 on May 21st, are taxed to plaintiff. 11 It will be necessary that defendants 12 file with this Court a statement of expenses 13 associated with the taking of that deposition 14 after which time those costs shall be included in 15 the cost which are taxed to plaintiff. 16 End of discussion. 17 MR. HOLCOMB: Thank you, your Honor. 18 MR. KRAUS: Thank you, your Honor. 19 MR. MARTIN: Your Honor, is that going 20 to be denoted a final judgment? 21 THE COURT: Judgment of Dismissal, 22 believe me, is a final judgment. 23 (PROCEEDINGS CONCLUDED.) 24 25 60 . 1 C E R T I F I C A T E 2 3 STATE OF MISSOURI ) ) ss. 4 COUNTY OF COLE ) 5 I, Pamela Fick, CSR, CCR, RPR, 6 within and for the State of Missouri, do hereby 7 certify that I was personally present at the 8 proceedings had in the above-entitled cause at the 9 time and place set forth in the caption sheet 10 thereof; that I then and there took down in 11 Stenotype the proceedings had; and that the 12 foregoing is a full, true and correct transcript 13 of such Stenotype notes so made at such time and 14 place. 15 Given at the City of Jefferson, 16 County of Cole, State of Missouri, this 29th day 17 of September, 2002. 18 19 20 ____________________________ 21 PAMELA FICK, CSR, CCR, RPR 22 23 24 25 61