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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE 1 SUPERIOR COURT DIVISION COUNTY OF WAKE 08 CVS 6528 2 THE NEWS AND OBSERVER PUBLISHING ) 3 COMPANY d/b/a The News & Observer; ) THE CHARLOTTE OBSERVER PUBLISHING ) 4 COMPANY d/b/a The Charlotte Observer; ) THE JOHN LOCKE FOUNDATION, INC., d/b/a ) 5 Carolina Journal, Carolina Journal ) Weekly Report and CarolinaJournal.com; ) 6 FAYETTEVILLE PUBLISHING COMPANY d/b/a ) The Fayetteville Observer; THE ) 7 ASSOCIATED PRESS; THE NORTH CAROLINA ) PRESS ASSOCIATION; MEDIA GENERAL ) 8 OPERATIONS, INC.; FREEDOM ) COMMUNICATIONS, INC.; FREEDOM EASTERN ) 9 NORTH CAROLINA PUBLICATIONS, INC.; ) THE WILSON DAILY TIMES, INC.; and ) 10 BONEY PUBLISHERS, INC., ) Plaintiffs; ) 11 ) v. ) 12 ) MICHAEL F. EASLEY, in his official ) 13 capacity as former Governor of North ) Carolina, and in his individual ) 14 capacity; CARI BOYCE, in her former ) official capacity; SHERRI JOHNSON, in ) 15 her former official capacity; RENEE ) HOFFMAN, in her former official ) 16 capacity; and SETH EFFRON, in his ) former official capacity, ) 17 Defendants. ) ___________________________________________________________ 18 VIDEOTAPED DEPOSITION OF CARI BOYCE ___________________________________________________________ 19 In Raleigh, North Carolina 20 Thursday, January 28, 2010 Reported by Brenda J. Thissen 21 Worley Reporting 22 6511 Creedmoor Road, Suite 205 Raleigh, North Carolina 27613 23 Telephone (919) 870-8070 Facsimile (919) 957-8393 [email protected]
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APPEARANCES 1 For the Plaintiffs: 2 Hugh Stevens, Esquire 3 Everett Gaskins Hancock & Stevens, LLP 127 West Hargett Street 4 Suite 600 (27601) Post Office Box 911 5 Raleigh, North Carolina 27602-0911 6 For the Defendants: 7 Alexander McC. Peters, Esquire 8 Melissa L. Trippe, Esquire North Carolina Department of Justice 9 114 West Edenton Street Post Office Box 629 10 Raleigh, North Carolina 27602-0629 11 For Defendant Michael F. Easley, individually: 12 Donald R. Teeter, Sr., Esquire 13 North Carolina Department of Justice 114 West Edenton Street 14 Post Office Box 629 Raleigh, North Carolina 27602-0629 15 16 For Defendant Cari Boyce, individually: 17 Mark T. Calloway, Esquire Alston & Bird, LLP 18 Bank of America Plaza 101 South Tryon Street, Suite 4000 19 Charlotte, North Carolina 28280-4000 20 21 22 23
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EXAMINATION INDEX 1
Examination By Whom Page Number 2
Direct Mr. Stevens 7
Cross Mr. Peters 75 3
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5
6
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8
9
10
11
12
13
14
15
16
17
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STIPULATIONS 1
It is hereby stipulated and agreed between the 2
parties to this action, through their respective counsel of 3
record: 4
(1) That the deposition of Cari Boyce may be taken 5
on Thursday, January 28, 2010, beginning at 9:05 a.m., at 6
the law offices of Everett Gaskins Hancock & Stevens, 127 7
West Hargett Street, Suite 600, Raleigh, North Carolina, 8
before Brenda J. Thissen, a Court Reporter and Notary 9
Public. 10
(2) That the deposition shall be taken and used as 11
permitted by the applicable North Carolina Rules of Civil 12
Procedure. 13
(3) That any objections of any party hereto as to 14
notice of the taking of said deposition or as to the time 15
or place thereof, or as to the competency of the person 16
before whom the same shall be taken, are deemed to have 17
been met. 18
(4) Objections to questions and motions to strike 19
answers need not be made during the taking of this 20
deposition, but may be made for the first time during the 21
progress of the trial of this case, or at any pretrial 22
hearing held before any judge of competent jurisdiction for 23
the purpose of ruling thereon, or at any other hearing of24
5
said case at which said deposition might be used, except 1
that an objection as to the form of a question must be made 2
at the time such question is asked, or objection is waived 3
as to the form of the question. 4
(5) That the witness reserves the right to read 5
and sign the deposition prior to filing. 6
(6) That the sealed original transcript of this 7
deposition shall be mailed first-class postage or hand- 8
delivered to the party taking the deposition for 9
preservation and delivery to the Court, if and when 10
necessary. 11
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___________________________________________________________ 1
Whereupon, 2
Cari Boyce, 3
having been first duly sworn, 4
was examined and testified 5
as follows: 6
___________________________________________________________ 7
MR. STEVENS: Ms. Boyce, good morning. 8
WITNESS: Good morning. 9
MR. STEVENS: We're going to actually 10
begin by asking all counsel here just to identify 11
themselves and their affiliations for the record, 12
so we have a record of that, if we could. That's 13
the way we've been doing it. Mark, do you want to 14
start? 15
MR. CALLOWAY: Yeah. Mark Calloway with 16
Alston & Bird. I'm Ms. Boyce's personal attorney. 17
MR. STEVENS: Okay. 18
MR. PETERS: Alexander Peters of the 19
Attorney General's Office on behalf of the 20
defendants in their official capacities. 21
MS. TRIPPE: Melissa Trippe from the 22
Attorney General's Office, the same. 23
MR. TEETER: Don Teeter from the Attorney24
7
General's Office, and I'm representing ex-Governor 1
Easley in his individual capacity. 2
MR. STEVENS: And I am Hugh Stevens of 3
Everett, Gaskins, Hancock & Stevens, here 4
representing the plaintiffs. 5
DIRECT EXAMINATION BY MR. STEVENS: 6
Q Ms. Boyce, would you mind just stating your name 7
and address for the record, to begin? 8
A Sure. Cari Boyce, [address removed by Carolina Journal], Raleigh, 9
North Carolina 27607. 10
Q By whom are you employed? 11
A I'm currently employed by Progress Energy. 12
Q In what capacity? 13
A I serve as their vice president of corporate 14
communications. 15
Q And how long have you been employed by Progress 16
Energy? 17
A Since October of 2006. 18
Q Prior to that time, how were you employed? 19
A I was employed by the State of North Carolina, in 20
the Office of the Governor. 21
Q And in what capacity? 22
A From 2005 until 2006, I was the Governor's director 23
of external affairs. And prior that, I was his24
8
director of communications. 1
Q Approximately when did you become director of 2
communications? 3
A In January of 2001. 4
Q And that would be when Governor Easley took office, 5
correct? 6
A That's correct. 7
Q And what were -- how were you employed prior to 8
January of 2001? 9
A Just prior to that, I was working on the Governor's 10
transition team. 11
Q Uh-huh. 12
A And prior to that, I was working in the Attorney 13
General's Office. 14
Q And in what capacity did you work at the Attorney 15
General's Office? 16
A My last position there was senior advisor for 17
policy and communications. 18
Q How long were you employed at the Attorney 19
General's Office altogether? 20
A I started in the Attorney General's Office in 1994, 21
December of 1994. And I took a brief leave in 1996 22
to work on the Governor's -- the Attorney General's 23
reelection campaign.24
9
Q Prior to becoming the senior advisor for policy and 1
communications, what jobs or titles did you have 2
with the Attorney General's Office? 3
A I worked doing public information work for -- I 4
don't remember the specific titles. I was in 5
various responsibilities doing public information 6
work. I started in an administrative and research 7
position in '94. 8
Q Okay. Can you give me just a -- well, were you 9
employed prior to 1994? 10
A I was. 11
Q And in what -- where were you employed? 12
A I worked in the New York state legislature from 13
1991 to 1994. 14
Q Okay. Can you give me a brief overview of your 15
educational background? 16
A Sure. My undergraduate degree is a degree in 17
political science and history from Siena College in 18
New York. 19
Q Uh-huh. 20
A And I have a master's degree in education from N.C. 21
State University. 22
Q And when did you graduate from Siena? 23
A 1992, May of 1992.24
10
Q And when did you acquire the master's from NC 1
State? 2
A December of 1999. 3
Q So I take it that you -- you achieved your master's 4
degree while you were employed at the Attorney 5
General's Office? 6
A Yes, sir. I did. 7
Q Okay. Have you ever participated in a deposition 8
like this before? 9
A No, sir. 10
Q Well, I'm assuming that your counsel here have 11
given you an understanding of how the process 12
works, so I won't review that. But, I do want to 13
say that my purpose here is simply not to confuse 14
you, so if I ask you a question that's not clear, 15
please feel free to ask me to clarify it or 16
rephrase it. If you need to consult with your 17
counsel, either your private counsel or the 18
Attorney General's representatives, with respect to 19
whether you should answer a question or a question 20
of privilege, or something like that, please let me 21
know, and we'll -- obviously, you can do that. And 22
if you need to take a break for any personal 23
reason, we'll try to accommodate you there.24
11
A Okay. 1
Q We've been taking periodic breaks, but if you, for 2
any reason, need to take a break, just let me know, 3
okay? 4
A Thank you. 5
Q All right. The Attorney General for whom you 6
worked from 1994 until 2000 was Mike Easley, 7
correct? 8
A Yes, sir. 9
Q When you -- and you moved over to the Governor's 10
Office with him he first took office in 2001; is 11
that correct? 12
A Yes, sir. 13
Q Can you tell me what your basic responsibilities 14
were at the beginning of the Easley Administration? 15
A In the transition office or in the actual -- 16
Q Actually -- 17
A -- Governor's Office? 18
Q Well, in the Governor's Office. 19
A Governor's Office. I was the communications 20
director during the first term of his 21
administration. 22
Q Okay. 23
A I oversaw the press office. At some point during24
12
that first administration, I had increasing 1
responsibility for scheduling, handling the 2
Governor's schedule and our constituent affairs -- 3
affairs office, so correspondence, and our 4
citizens' ombudsman reported up through the 5
communications office. 6
Q Okay. Let me see. I think I understand this. 7
Let's talk about the citizen affairs office or 8
the -- 9
A Uh-huh. 10
Q I think you used another term. It's my 11
understanding from documents I've read and from 12
some of the prior deposition testimony that the -- 13
the -- what's often called the -- or sometimes 14
called the citizen affairs office is the group of 15
people who basically respond to general public 16
inquiries or correspondence that comes to the 17
Governor's Office; is that correct? 18
A Yes, sir. Uh-huh. 19
Q And that, at least for some of the time during the 20
Easley Administration, the person in charge of that 21
office was a person named Allison Stivender; is 22
that correct? 23
A She was some of the time.24
13
Q Some of the time. And that -- do I understand 1
correctly that they basically handle what you might 2
call generic communications of various kinds that 3
were directed to the Governor's Office? 4
A Yeah. They received citizen phone calls, letters, 5
any letters that were sent to the Governor's 6
Office, e-mails, as that became an increasing form 7
of communication. 8
Q Okay. And was -- was an office of that nature in 9
place when you began the Easley Administration? In 10
other words, is that a concept or organizational 11
structure that was inherited from the previous 12
administration? 13
A Yes, sir. That's -- it's the same -- same or 14
similar format from the Hunt Administration. 15
Q Okay. Did you have any similar kind of structure 16
at the Attorney General's Office, where more 17
general or generic inquiries went to a group, as 18
opposed to actually going into the press office 19
itself? 20
A No. As mail came in, it was routed to the 21
appropriate section within the office. 22
Q Okay. 23
A And I don't recall specifically who did it, but24
14
there wasn't a section like there was in the 1
Governor's Office. 2
Q Okay. Now, you also said that you were -- as 3
communications director, you oversaw the press 4
office? 5
A Yes, sir. 6
Q Did you essentially set up the press office for the 7
Easley Administration when the Administration 8
began? 9
A Yes. We kept quite a few people that had been 10
there in the Hunt Administration. 11
Q Okay. 12
A But gradually brought in new people as people left 13
and moved on to different roles. 14
Q I understand from prior testimony that the title of 15
the person in charge of the press office was press 16
secretary? 17
A Yes. 18
Q Was that true throughout the Easley Administration? 19
A Yes. 20
Q Who was the press -- the first press secretary for 21
Governor Easley? 22
A Fred Hartman. 23
Q Okay. Do you recall approximately how long he24
15
remained in that position? 1
A He was there, I would say, a little bit over a 2
year. It all tends to blur together, but about a 3
little over a year. 4
Q And who succeeded him as press secretary? 5
A Sherri Johnson. 6
Q And then, I believe, she then succeeded you as 7
communications director when you went to the 8
private sector? 9
A Yes. 10
Q Okay. So, if I've got this right, during the 11
Easley Administration, there were three press 12
secretaries -- Mr. Hartman, Ms. Johnson, and Renee 13
Hoffman? 14
A Yes, that sounds right. 15
Q And then, there were two directors of 16
communications -- yourself and then Sherri Johnson, 17
correct? 18
A Yes. 19
Q Okay. Approximately how many people were employed 20
in the press office at the beginning of the Easley 21
Administration, do you recall? 22
A Somewhere between five and seven. 23
Q Okay. Now, at the beginning of the Easley24
16
Administration, what other staff people were in 1
place? I mean -- let me explain. 2
For example, was there a -- a counsel or 3
general counsel in place at the beginning of the 4
Administration? 5
A There was. That was Hampton Dellinger at the 6
beginning of the Administration. And Reuben Young 7
was the deputy. 8
Q Okay. Now, Hampton Dellinger, was -- do you recall 9
what his actual title was at the beginning of the 10
Easley Administration? 11
A I thought it was general counsel. 12
Q Okay. And where was his office? 13
A In the Administration Building. 14
Q Was there a counsel whose office was in the Capitol 15
at the beginning? 16
A John McArthur. 17
Q Okay. And do you recall what John McArthur's 18
actual title was? 19
A Not specifically. The Governor had three people 20
that were, essentially, his chiefs of staff, and 21
they were all executive assistant for -- I think 22
John's was policy and communications, but he 23
oversaw the legal counsel's office, if I'm not24
17
mistaken. 1
Q Okay. 2
A Franklin Freeman was executive assistant for 3
intergovernmental affairs maybe, or something along 4
those lines. And then, Susan was for 5
administration. 6
Q And is "Susan" Susan Rabon? 7
A Susan Rabon. I'm sorry, yes. 8
Q Okay. I take it, from what I've learned from other 9
depositions, that Susan Rabon's office was in the 10
Capitol, correct? 11
A No, she was in the Administration Building. 12
Q Oh, I'm sorry. She was in the Administration 13
Building. Okay. 14
John McArthur was in the Capitol? 15
A Yes, sir. 16
Q Okay. And Franklin was in the Capitol? 17
A Yes, sir. 18
Q So, if I've got my chronology right, Franklin 19
Freeman was essentially in the same place, if not 20
always having exactly the same title and 21
responsibilities, throughout the entire Easley 22
Administration? 23
A Yes.24
18
Q Okay. The first counsel was Hampton Dellinger, and 1
he was succeeded at some point by Reuben Young? 2
A Yes. 3
Q Do you recall when that happened? 4
A If I had -- I don't recall specifically. I would 5
guess around 2002. 6
Q Okay. Do you recall how long John McArthur was 7
working in the Governor's Office? 8
A John left in December of 2001. 9
Q And who replaced him, or if anybody did. 10
A In -- in a different role, John Merritt came in. 11
Q Okay. And how long was he there? 12
A A year to 18 months. 13
Q Was his office in the Capitol? 14
A Yes. 15
Q In the office that John McArthur had had? 16
A Yes. 17
Q Okay. And what happened when he left, did someone 18
take that office? 19
A Yes. Kel Landis came in and took that office. 20
Q I think you need to spell that for the -- 21
A Kel L-A-N-D-I-S, and the first name is Kel, K-E-L. 22
Q And, for the record, is Kel Landis a female or a 23
male person?24
19
A It's a male. 1
Q Okay. Well, we want to keep the record straight. 2
How long -- 3
A As far as I know. 4
Q How long -- how long was he in -- in the Governor's 5
Office, to your recollection? 6
A To my recollection, he was also there about a year. 7
Q And then, did someone succeed him? 8
A Not immediately. At -- at some point, I think, 9
after I left, Ruffin Poole assumed a similar 10
position. 11
Q Okay. So, you were never employed in the 12
Governor's Office at the same time Ruffin Poole 13
was? 14
A No, we were there at the same time. 15
Q You were? 16
A Yes. 17
Q Okay. What was his position when you left, do you 18
recall? 19
A Special counsel, I believe. 20
Q All right. 21
A I'm sorry if I'm not getting all of the titles -- 22
Q That's okay. 23
A -- completely accurate.24
20
Q All right. I'm just trying to get the cast in my 1
head the best I can. 2
A Yeah. 3
Q Now, to -- did your responsibilities as director of 4
communications -- and we're now talking again at 5
the beginning of the Easley Administration -- 6
include any responsibility for responding to public 7
records requests? 8
A Yes. 9
Q What -- what was your role and responsibility in 10
that regard? 11
A Typically, if a public records request came into 12
the office, I -- either I or the press secretary 13
facilitated responding to it. 14
Q And how did you go about responding to it? 15
A Well, it depended on the nature of the request and 16
how it came into the office. We sometimes got e- 17
mail and sometimes got formal letters, faxes, or 18
phone calls. If it was a phone call, we typically 19
asked the person if they would put the request in 20
writing, so we could have clarity about what they 21
were looking for. If they didn't put it in 22
writing, we would take it and put it in what we 23
believed they were looking for and send it to them24
21
and say, "This is what we understand from our 1
conversation that you're looking for." 2
Following that, we would -- I would send 3
an e-mail to people within the office that had the 4
relevant documents and ask them to go through their 5
files and provide them pursuant to the request. 6
Then, I would collect the documents and typically 7
review them, and have counsel review them before 8
turning them over. 9
Q First of all, when you -- when you would send out a 10
request for people to gather up potentially 11
responsive documents, how -- how broadly -- how -- 12
how broad was such a request likely to be? 13
Let me give you an example. The 14
Department of Administration is technically a 15
separate agency, but it works, I know from 16
experience, very closely with the Governor's 17
Office. Would you -- for example, if -- if 18
something came in that seemed to call potentially 19
for documents that someone in the Department of 20
Administration might have, would you communicate 21
with them directly, or would you send that on to 22
someone at the Department of Administration to 23
handle?24
22
A We would communicate back to the person that 1
requested that documents to say that we weren't the 2
custodian of those records, and direct them to the 3
appropriate agency. 4
Q Okay. So, I take it that the effort was to -- to 5
deal with the documents that were -- were literally 6
under the control and -- and possession of the 7
people who worked directly for the Governor? 8
A Yes, sir. 9
Q Okay. And -- and I take it that would have 10
included all of the people we've just been talking 11
about? 12
A Uh-huh. 13
Q All right. You -- you indicated that the -- the 14
process or procedure was, when the documents had 15
been gathered, would be to have counsel review 16
them. Was that the policy from day one at the -- 17
in the Easley Administration? 18
A I don't know that it was ever a written policy, but 19
it was a practice that we followed. 20
Q And how did that -- how did that -- what was the 21
source of that practice? That is, was that 22
something that was directed by somebody? 23
A I don't recall that it was directed by someone. It24
23
was just -- it was a public records request, and we 1
were making sure we were complying with the 2
statute. So, we asked counsel to look at the 3
documents. 4
Q And was that process invariably followed, 5
regardless of the nature of the request? 6
A To the best of my knowledge, it was -- that was 7
generally the way we did it. If there was 8
something very, very simple, it may have just -- it 9
may not have gone to counsel for review. But the 10
general practice was to have counsel review it. 11
Q How did that -- how did that come to be? I mean, I 12
guess I'm trying to figure out if -- you said it 13
wasn't directed by anybody. What was -- to your 14
knowledge, what was the source or predicate for 15
doing it that way? 16
A It was -- I don't know specifically. There was not 17
a specific event that happened. I do know that, 18
having been in the Attorney General's Office, there 19
was a public records lawsuit that happened at the 20
end of the administration related to the campaign 21
that was pretty extensive, and that was really my 22
first experience responding to the public records 23
request, and counsel was involved.24
24
Q Well, did -- did this -- did this practice of 1
having counsel review the responsive documents, was 2
that something that was carried over from the 3
Attorney General's Office? 4
A Again, it wasn't a specific policy; it just is what 5
we did, and I don't recall how it specifically got 6
started. 7
Q Okay. Let me go about it this way. 8
To your -- to your recollection, was 9
there ever, for example, a memorandum from Hampton 10
Dellinger that said, "Any public records request, 11
gather up the records and then give them to me for 12
review," or anything like that that you recall? 13
A I don't recall that. 14
Q Your recollection is that it was more informal than 15
that? 16
A To the best of my recollection, yes. 17
Q Okay. But, nevertheless, was this policy or 18
procedure communicated to everyone on the staff 19
as -- as what they should do if a public records 20
request came in? 21
A Well, typically, the people that handled the public 22
records requests, again, were myself or the press 23
secretary, so it wasn't a widespread communication24
25
to the staff about it. 1
Q Okay. Have you -- were you familiar with the 2
public records law when you took your position as 3
director of communications? 4
A Yes. 5
Q How had you become familiar with that? 6
A I had become familiar with it in the course of 7
responding to a public records request in the 8
Attorney General's Office. 9
Q And have you ever had any formal training with 10
respect to the public records law? 11
A No. 12
Q In a classroom-type setting, or any other formal 13
educational-type setting? 14
A No. 15
Q Ever attend any kind of seminar or colloquium, 16
where there was a -- someone reviewed the law and 17
discussed it and how to -- how to comply with it, 18
and what its requirements were, that sort of thing? 19
A No. 20
Q Okay. Well, then, how did you acquire your 21
familiarity with it at the Attorney General's 22
Office, or did you sit down and read it, or did 23
somebody tell you about it, or how did that come24
26
about? 1
A When we had a request come in and I was serving as 2
the public information officer, I consulted with 3
counsel about what records should be produced, and 4
so it was practical experience, I guess, is how I 5
learned about it. 6
Q Was there -- when you were at the Attorney 7
General's Office, were there any particular persons 8
on the staff to whom you made such inquiries? 9
A Our general counsel at the time was Eddie Speas. 10
Q Okay. 11
A And for the particular public records request that 12
I'm referring to, Kip Sturgess was an attorney that 13
I worked with. 14
Q Do you recall what that all related to? 15
A It was a request by the Republican Party for all 16
kinds of documents related to the Attorney 17
General's work over the course of his tenure. 18
Q And was that your earliest experience in responding 19
to a public records request, do you recall? 20
A It's the earliest one I recall. 21
Q Okay. Now, if a question -- after the -- you went 22
to the Governor's Office, if a question arose, to 23
whom did you refer the question?24
27
A Relating -- 1
Q About the public records. 2
A About the public records request. To our counsel. 3
Q So, Hampton Dellinger originally? 4
A Hampton, Reuben Young. Ruffin Poole was also 5
serving in a counsel capacity throughout most of -- 6
throughout most of the time he was in the office. 7
Franklin Freeman was also a resource. 8
Q Okay. Now, we've also heard about, in other 9
depositions, about retention schedules for -- for 10
records of the Governor's Office, and -- and so 11
forth. And I may ask you more detail about that. 12
But, just generally, did you have any 13
responsibility at any time that you were in the 14
Governor's Office, with respect to compliance with 15
or development of these retention schedules for the 16
Governor's Office? 17
MR. PETERS: Objection to the form. 18
Q If you understand the question, you can answer it. 19
A Are you asking if I drafted the retention policies? 20
Q I'm asking if you had any responsibility for either 21
the -- the -- establishing the policy or for 22
compliance with the policy. 23
A Well, it was my understanding that everyone in the24
28
office had responsibility for complying with the 1
policy, and I did have responsibility for reviewing 2
and signing the policy as it related to the press 3
office. But the policies themselves were developed 4
and reviewed by counsel. 5
Q Okay. Did you ever have any discussions or 6
negotiations with the Department of Cultural 7
Resources about those retention schedules -- 8
A No. 9
Q -- as part of your duties? 10
A No, I did not. 11
Q Okay. When you came in as director of 12
communications in January of 2001, did you have an 13
e-mail address? 14
A I did. 15
Q A state e-mail address? 16
A Yes. 17
Q Okay. Did everyone else in the Governor's Office 18
have a state e-mail address? 19
A Yes. 20
Q Did you -- how -- if you were going to communicate 21
with, let's say, Susan Rabon, who was in another 22
physical location, how did you customarily or most 23
frequently communicate with her? That is, what24
29
mode of communication did you use? 1
A Primarily by phone. 2
Q Okay. How about with, say, Franklin Freeman, how 3
did you most frequently communicate with Franklin? 4
A On the phone or in person. His office was right 5
across the hall from mine. 6
Q Okay. The same with John McArthur? 7
A Uh-huh. 8
Q How about -- 9
A Probably mostly in person with him. Again, he was 10
in the Capitol, so -- 11
Q Okay. All right. And how did you primarily 12
communicate with the Governor? 13
A Primarily by phone or in person. 14
Q Now, did Governor Easley have a state e-mail 15
address? 16
A I believe there was an address assigned to him, but 17
it wasn't one that he used personally. It went 18
through the office of citizen affairs. 19
Q Yeah. I think we've -- I think we've had -- I have 20
a document that showed that it was an address 21
something like [email protected]. 22
A That sounds like it would be right. 23
Q Okay. And it's my understanding that that -- e-24
30
mail sent to that address was routed to the citizen 1
affairs office; is that correct? 2
A Yes. Uh-huh. 3
Q All right. Is that the only e-mail address for the 4
Governor that was on the state system, to your 5
knowledge? 6
A Yes. 7
Q Did the Governor had a private e-mail address? 8
A Yes, he did. 9
Q Do you recall what it was? 10
A Yes. 11
Q What was it? 12
A It was "Nick Danger" spelled backwards at a Road 13
Runner address. 14
Q Okay. And did he have that private address from 15
the beginning of the Administration? 16
A He did not. 17
Q He didn't. Do you recall about when -- well, let 18
me ask you -- 19
A Or if he did, I didn't know about it. 20
Q Okay. Let me ask you this. When -- yeah. Do -- 21
do -- let's back up. 22
Do you know whether the Governor had a 23
private e-mail address when he took office in 2001?24
31
A I do not know that. 1
Q Okay. Do you know whether he had a private e-mail 2
address when he was the Attorney General? 3
A I do not. 4
Q Okay. How and under what circumstances did you 5
become aware that he had a private -- that -- that 6
private e-mail address you just described? 7
A I don't recall specifically when I learned that he 8
had it. I believe that it was in talking to him, 9
and I needed to send him some materials. And he 10
said, "You can send them to this account." 11
Q Do you have any personal knowledge as to how that 12
account was created and -- and paid for? 13
A No. 14
Q During the time that you worked in the Easley 15
Administration, did -- did you ever have a 16
different or additional private e-mail address for 17
the Governor? 18
A No. 19
Q Okay. Did you have occasion, from time to time, to 20
send messages to that address? 21
A Yes. 22
Q Did you have occasion, from time to time, to 23
receive messages from that address?24
32
A Yes. 1
Q Were there instructions or protocols about any 2
particular types of message that should or should 3
not be sent to that address? 4
A Not that I recall. 5
Q Did you make any distinction in your mind about 6
that? For example, were there particular types of 7
messages that you invariably sent to that address, 8
or types of messages that you didn't? 9
A Generally, I was careful about using e-mail -- 10
Q In what -- 11
A -- for communication. 12
Q Okay. 13
A And for sensitive issues with the Governor, 14
usually, was by phone call. 15
Q Okay. 16
A E-mail was really just used to pass information 17
along -- a copy of an article, "a reminder your 18
speech is at 10:00 tomorrow." 19
Q All right. 20
A "I need to talk to you about these three scheduling 21
requests." 22
Q Okay. If -- if -- if you needed to send something 23
to the Governor by e-mail, for whatever reason,24
33
whether he was away or whatever it was, was there 1
any other means to do that other than to send it to 2
this private account? 3
A Yes. 4
Q And what was that? 5
A There was a fax machine at the mansion that could 6
be -- you could send documents to. 7
Q Uh-huh. 8
A He also had a fax at his home in Southport, if he 9
was there on the weekend. 10
Q Okay. Was there any other e-mail address that you 11
could use? For example, was there anyone in his 12
household or on his staff that had an e-mail 13
address that you could relay messages through? 14
A There was always someone staffed at the Executive 15
Mansion at the security desk, so you could send 16
messages -- you could send documents to them, and 17
they could print them and deliver them to the 18
Governor, if he was there. 19
Q Okay. And that was a state e-mail address of some 20
kind? 21
A Yes. 22
Q All right. Okay. What was your understanding with 23
respect to the archiving and the retrievability of24
34
your e-mail that was sent to and from your state 1
address? 2
A I'm not sure I understand what you're asking. 3
Q Well, what -- were you ever -- was it ever -- what, 4
if anything, were you ever told about the -- 5
whether your -- your e-mail that was sent to and 6
from your state address could be retrieved from 7
some other source later on? 8
A I knew that the state backed up its computer 9
systems regularly, and that they kept tapes for a 10
certain period of time. I don't know when the 11
backups occurred or how long they kept the tapes 12
for. 13
Q Okay. So, you were -- were you -- you were 14
generally aware that there was some kind of backup 15
system? 16
A Yes. 17
Q What -- what was your understanding as to how that 18
worked? 19
A It got backed up regularly. 20
Q Okay. 21
A And kept on a tape. 22
Q All right. Now, did you have a private e-mail 23
address at any time while you worked for Governor24
35
Easley? 1
A I did. 2
Q Did you ever have occasion to use that address to 3
send information that related to state business? 4
A Yes. 5
Q And did you have occasion, from time to time, to 6
receive e-mail on that private account that related 7
to your state job? 8
A Yes. 9
Q What were the circumstances under which you would 10
send or receive e-mail related to state business 11
through your private account? 12
A If I were working on a draft of a press release or 13
a speech over the weekend, sometimes it was just 14
more convenient to circulate it on private e-mail 15
or to work on it from home. If I were in my 16
position with responsibility for scheduling, 17
especially around campaigns, there were -- there 18
was a lot of political scheduling that had to 19
coincide with state scheduling, so there was 20
sometimes communication with the campaign office or 21
to the Governor about certain events. 22
Q Well, now, of course, e-mail related to campaign 23
scheduling would not be e-mail related to your24
36
state job, right? 1
A But sometimes, because the schedule had mixed 2
events, there were some times -- 3
Q I understand. 4
A Both included. 5
Q Okay. I just wanted to be clear. 6
A Yeah. 7
Q Okay. Did you have -- and this -- and I understand 8
this may have changed over time. Did you have a -- 9
a desktop computer in your office at the Governor's 10
Office, or a laptop, or both? 11
A I just had a desktop. 12
Q Did you ever have a laptop at the Governor's 13
Office? 14
A No, not that was specifically assigned to me. 15
Q Okay. Did you have a home computer? 16
A I did. 17
Q Okay. And could you access your state e-mail 18
account from your -- from home? 19
A At some point, I could, but I don't know that I 20
always could. I remember it being difficult 21
initially, and I think, by the time I left, it had 22
gotten easier. 23
Q Okay. Well, you -- a few minutes ago, or a couple24
37
of minutes ago, you said that one of the reasons to 1
use your private account was that it was easier. 2
A Uh-huh. 3
Q Can you explain what you meant by that? 4
A Well, as I mentioned, earlier in the 5
Administration, I don't recall if you could access 6
your state e-mail from home. So, if you wanted to 7
work on a document, it was just easier to send it 8
to your personal account, work on it from home, and 9
send it back on Monday. 10
Q Okay. All right. One of the things that's come up 11
is that -- Franklin Freeman was famous for saying 12
that he did not use e-mail, and we've been told 13
that, at least during part of the time, maybe all 14
of the time, he didn't even have a computer in his 15
office. Is that your recollection? 16
A It's my recollection that he did not have a 17
computer. 18
Q Okay. Well, then, is it -- we've also -- I've also 19
been told from other witnesses that the way to e- 20
mail -- send -- send something, an e-mail, to 21
Franklin, was to send it to Anita Berry, in effect, 22
and that even his official state address went to 23
her and not to him; is that --24
38
A That's my understanding. 1
Q Okay. 2
A Uh-huh. 3
Q Now, how about with respect to others, let's say -- 4
let me start with Hampton Dellinger. Did you -- 5
while Hampton was counsel, general counsel, did you 6
have occasion to send e-mails to him? 7
A Yes. 8
Q Do you know whether he had a private e-mail address 9
as well as a state address? 10
A I believe that he did. 11
Q Did you ever send e-mails to that private address, 12
or receive e-mails from that private address, that 13
related to state business? 14
A I don't recall that I did. 15
Q Okay. How about John McArthur? 16
A I don't know if he had a personal e-mail address or 17
not. 18
Q So, I take it, then, you don't recall ever sending 19
messages related to state business to, or receiving 20
such messages from, a private account for Mr. 21
McArthur? 22
A Right. 23
Q Okay. How about Susan Rabon, did Susan have a24
39
private e-mail address? 1
A She did. 2
Q Did you have occasion to send messages to her that 3
related to state business but that were sent to her 4
private account? 5
A Most of the e-mails that I would have sent to Susan 6
at her private account would have been personal in 7
nature. We were friends also. But I don't know 8
that there might not have been some state business. 9
Q Do you recall ever receiving e-mails from her that 10
related to state business, from her private 11
account? 12
A Again, it was the same as the ones I would have 13
sent to her. 14
Q Okay. Now, when -- when a public records request 15
came in to the Governor's Office, and you or your 16
staff sent out a request for people to gather up 17
potentially responsive records, did that -- did 18
those messages specifically instruct them to 19
include any messages that were potentially 20
responsive that had been sent to or received 21
through their private e-mail accounts? 22
A No. 23
Q What was your understanding as -- as to whether --24
40
as to the status of e-mail messages that were sent 1
to and from private accounts, but which related to 2
state business? 3
A I don't recall that it was something that was 4
specifically discussed as an issue while I was 5
there, but I can say that I -- as they were related 6
to state business, I followed the same guidelines 7
in keeping -- retaining documents that were in my 8
state -- in my personal account as I did in my 9
state. 10
Q Did you ever -- did you ever turn over messages to 11
counsel that you yourself had sent or received, 12
that were potentially responsive to a public 13
records request? 14
A No. 15
Q No? 16
A (Shakes head negatively.) 17
Q You never had occasion to do that? 18
A I don't recall receiving any public records 19
requests that would have related to documents -- 20
that I would have had documents on my private e- 21
mail that were responsive. 22
Q Okay. Well, I think -- maybe I didn't phrase my 23
question well.24
41
Did you ever turn over to counsel any e- 1
mail messages that -- that were -- that you sent or 2
that you received, whether on your state account or 3
your private account, for vetting by -- by counsel 4
in -- in connection with a public records request? 5
A Can you repeat that one more time? 6
Q A public records request comes in. Did you ever 7
determine that you yourself had messages, either 8
that you had sent or that you had received, that 9
were potentially responsive to the request? 10
A On any e-mail account? 11
Q Yes. 12
A Yes. 13
Q And did you turn those messages over to counsel for 14
vetting in accordance with the process you've 15
described? 16
A Yes. 17
Q Did those messages that you turned over to counsel 18
ever include any that had been sent to or 19
received -- that you -- that you sent from or 20
received on your private account? 21
A I don't recall ever turning any over that were from 22
my private account. 23
Q Do you recall ever -- do you know whether any24
42
messages that were ever sent to the Governor on his 1
private -- on his private account were ever turned 2
over to counsel for -- for vetting in response to a 3
public records request? 4
A I do not know. 5
Q Well, who had -- who besides yourself had access to 6
the Governor's private e-mail account? 7
MR. PETERS: Object to the extent it 8
calls for speculation. 9
Q If you -- if you know. Who knew the address other 10
than yourself? 11
A Well, I was going to clarify the question because I 12
didn't actually have access to use his account, 13
but -- 14
Q Okay. Well -- 15
A -- to know his address. 16
Q You knew his address? 17
A Uh-huh. 18
Q Who else in the Governor's Office knew that 19
address, to your knowledge? 20
A To my knowledge, Dan Gerlach, Susan Rabon, and 21
probably that's it. And, I'm sorry, Ruffin Poole. 22
Q I haven't asked you about Dan Gerlach but, for the 23
record, what was Mr. Gerlach's position?24
43
A I don't recall his specific title, but he was the 1
Governor's budget advisor. 2
Q And do you recall approximately when he joined the 3
Governor's team? 4
A He wasn't there at the initial outset, but I can't 5
remember specifically if he came late in 2001 or 6
early 2002. 7
Q But he was there -- 8
A It seems like it was around that time. 9
Q He was there through most of the Easley 10
Administration, both -- both terms, most of it, 11
correct? 12
A Yes. 13
Q All right. Did Mr. Gerlach have a private e-mail 14
address? 15
A He did. 16
Q Did you know what it was? 17
A I did. 18
Q Did you send messages to it? 19
A Yes. 20
Q Did you receive messages from it? 21
A Yes. 22
Q Did any of those messages relate to state business? 23
A Yes.24
44
Q Such as the budget, for example? 1
A They related to state business. I don't recall 2
specifically. 3
Q All right. Do you know whether Mr. Gerlach ever 4
sent e-mail from his private account to the 5
Governor's private account? 6
A He did. 7
Q I take it you may have been copied on some of those 8
messages from time to time, correct? 9
A Yes. 10
Q Going back to the earlier question, you and other 11
witnesses have described this regular process 12
whereby, if a public records request came in, a 13
message went out that said, "Gather up all of the 14
records that are potentially responsive." And 15
then -- well, I guess I'm not clear. What did 16
happened then? Who -- to whom -- who assembled all 17
of those potentially responsive records, or did -- 18
or were people supposed to send them their 19
individual -- the records that were in their 20
individual possession to counsel directly? 21
A Well, I was there most of the time, and the records 22
were sent to the press office, compiled in one 23
comprehensive stack, and then given to counsel.24
45
Q And did you personally do that, or did someone 1
else? Did you ever do that? Did you ever actually 2
take the -- create and -- and gather up that stack, 3
and carry it over and give it to counsel? 4
A Well, typically, the counsel would just come to the 5
press office and review it. 6
Q Well, whichever. Okay. But -- but -- maybe I can 7
use this term. 8
Did you ever personally marshal records 9
that were potentially responsive to a public 10
records request so that counsel could review them? 11
A I'm not exactly sure what you mean by that. I 12
mean, I collected the records from people -- 13
Q Okay. 14
A -- reviewed them, and gave them -- 15
Q All right. 16
A -- to counsel. 17
Q Okay. And I take it, then, you were generally 18
familiar with the kinds of records that were in a 19
particular batch that you were turning over to 20
counsel for review, correct? 21
A Uh-huh. 22
Q Did any of those records ever include, to your 23
recollection, e-mail messages that were sent from24
46
Mr. Gerlach's private account to Governor Easley's 1
private account? 2
A I don't know. 3
Q You don't recall? 4
A I don't know. I mean, some of the requests that 5
came in were -- ended up being hundreds of pages. 6
And flipping through them, I'm not -- I didn't 7
necessarily look to see each e-mail address. 8
Q Okay. 9
A I looked more at the content of the message. 10
Q Do you ever recall a public records request that, 11
in your mind, encompassed e-mail messages that you 12
had sent to the Governor's private account? 13
A I don't -- I don't recall receiving such a request. 14
Q Do you recall ever being aware of a public records 15
request that encompassed any message that the 16
Governor had sent to you from his private account? 17
A I don't. 18
Q To your recollection, do you ever recall any 19
messages that were sent to the Governor or received 20
from the Governor that you -- that -- that you sent 21
to him or that he -- or you received from him, were 22
ever turned over to counsel for vetting in 23
connection with a public records request?24
47
A I did not turn over any records that -- 1
Q Well, did -- was the -- when -- when these -- when 2
these requests would go out for people to gather up 3
potentially responsive records, did that message go 4
out to the Governor? Did you ask him for -- to 5
gather up his records? 6
A I don't know that -- no, there was not a specific 7
request that went to the Governor. 8
Q Other than -- well, let's put it this way. 9
If a public records request had come in 10
that included -- that -- and within the scope of 11
the request, potentially, was messages that you had 12
sent to the Governor on his private account, was 13
there anyone other than you and the Governor who 14
could have gathered up such messages? 15
MR. PETERS: Objection to the extent it 16
calls for speculation. 17
Q Well, I'm asking if you know. 18
A I don't know. I mean, on occasion, there were 19
other people carboned on -- you know, carbon copied 20
on the messages. 21
Q I'm talking about a message that only went from you 22
to him, or from him to you. 23
A I don't know who -- I don't know the answer to24
48
that. 1
Q Do you know whether anyone other than Governor 2
Easley himself had access to his personal account? 3
A I do not. 4
Q I may have asked you this. If I did, I apologize 5
for the redundancy, but who -- to -- to your 6
knowledge, who besides yourself knew the -- the 7
Governor's private e-mail address, that is, with 8
the Governor's Office? 9
A The -- the people I mentioned -- Susan Rabon, Dan 10
Gerlach, Ruffin Poole -- to my immediate knowledge. 11
Q All right. Did -- did Fred Hartman ever know that 12
address, to your knowledge? 13
A I do not know if he knew that. 14
Q Did you ever tell him? 15
A I did not. 16
Q Were you instructed not to disclose that address to 17
beyond the group of people that you just mentioned? 18
A I don't recall ever receiving those instructions. 19
Q Did -- did Sherri Johnson ever know that address 20
before she became director of communications? 21
A I do not know. 22
Q Didn't you ever tell her what that address was? 23
A I don't recall telling her what that address was.24
49
Q Do you know whether Renee Hoffman ever knew that 1
address? 2
A I do not know. 3
Q Did you ever take a vacation while you were working 4
for Governor Easley? 5
A It depends on how you define that. There were 6
times that I was out of the office. 7
Q If -- well, to your knowledge, did there ever 8
come -- arise an occasion while you were away or 9
unavailable, where someone needed to send something 10
by e-mail to Governor Easley? 11
A I do not know. 12
Q If that happened, was there some protocol or 13
process or procedure that was prescribed for 14
dealing with that? 15
A Not that I recall. 16
Q Do I understand, then, that, basically -- 17
A But there were lots of ways to get things to the 18
Governor, as I mentioned earlier. 19
Q Okay. But, if I'm understanding you right, even if 20
it had -- the occasion had arisen, the press 21
secretary could not have sent a message to the 22
Governor's private e-mail account because the press 23
secretary didn't know what that address was; is24
50
that your understanding? 1
A I don't know whether the press secretary knew the 2
address or not, but -- 3
Q But you didn't -- the press secretary worked for 4
you and was your direct subordinate, correct? 5
A Yes. 6
Q And you never disclosed that address to the press 7
secretary? 8
A Not that I recall. 9
Q Okay. Why not? 10
A There was never an occasion to. 11
Q Were you not instructed to maintain that address as 12
secretly as possible? 13
A I don't recall receiving that instruction. 14
Q Other than yourself, do you -- who -- whom do you 15
recall participating in this process of -- of 16
collecting records and turning them over to counsel 17
for review in -- in response to a public records 18
request? 19
A Sherri Johnson. 20
Q Okay. 21
A The press secretary. On occasion, Ruffin Poole was 22
involved. I don't recall if other members of the 23
press office were involved or not.24
51
Q Okay. Did Ruffin Poole have a private e-mail 1
account? 2
A He did. 3
Q What -- do you recall what sort -- what kind of 4
account it was? I mean, for example, was it a Road 5
Runner account or a -- something else? 6
A I don't remember what his was. 7
Q Do you remember what the address was? 8
A Uh-uh. 9
Q How about Ms. Rabon, do you recall what sort of 10
private account she had? 11
A She had an AOL account. 12
Q An AOL account. Did you ever have occasion to send 13
e-mail to Mr. Poole's private account from your 14
private account? 15
A Yes. 16
Q Did you ever have occasion to receive e-mail from 17
Mr. Poole's private account to your private 18
account? 19
A Yes. 20
Q Did any of those messages, either that you sent or 21
received, relate to state business? 22
A They may have. 23
Q Again, do you recall ever turning over any messages24
52
that either you sent to Mr. Poole's private account 1
or received from his private account, for vetting 2
by counsel, in response to a public records 3
request? 4
A I do not recall turning over any records from the 5
private account that were vetted by counsel. 6
MR. PETERS: I don't want to interrupt 7
your flow, but I'm just noting we've been going 8
about an hour. 9
MR. STEVENS: Okay. I said we would take 10
a break, and that's fair. We've been doing it 11
about an hour, so let's go off the record. 12
(RECESS, 10:02 - 10:18 A.M.) 13
Q Before we broke, Ms. Boyce, we were talking about 14
this -- this process of accumulating or gathering 15
documents that were potentially responsive to 16
public records requests, and -- and I want to be 17
clear. Are -- are you saying that you don't 18
remember ever turning over to counsel messages that 19
were sent between these private accounts that 20
you've described, or that you didn't do that? 21
A I'm only speaking about my personal e-mail account. 22
Q Okay. 23
A I would say I don't -- I didn't turn over any. If24
53
there were documents within the pile that I 1
collected that were between other people's private 2
e-mail accounts, I don't remember. 3
Q But I -- but I think I am clear that you never 4
specifically asked people to review their private 5
accounts for potentially responsive records? 6
A No, we didn't. We asked them to provide records 7
responsive to the request. We didn't specify what 8
those records were. 9
Q Do you ever recall counsel -- and by that -- I'm 10
going to use that term broadly, including not only 11
Mr. Dellinger and Mr. Young but, for example, 12
someone from the Attorney General's Office -- ever 13
advising the -- the Governor's staff that e-mails 14
that were sent to and from private accounts were -- 15
but which related to state business were 16
potentially public records and would be 17
responsive -- could be responsive to a public 18
records request? 19
A No. 20
Q Why was it that you never turned over any of -- any 21
messages sent or received from your private account 22
to counsel for review? 23
A I don't recall receiving a public records request24
54
that would have made any of those records 1
responsive -- in which any of those records would 2
have been responsive, I guess, is the best way to 3
say it. 4
Q So, you're saying the subject matters of the 5
messages didn't fall within the ambit of the 6
request; is that right? 7
A (Nods head affirmatively.) 8
Q Were you aware that, if they had, that you were 9
responsible for turning them over to counsel for 10
review? 11
A I don't know that I had that specific 12
understanding, but the types of messages that were 13
sent and received, as I mentioned earlier, drafts 14
or things like that, were on my -- would have come 15
back to my state account and would have been turned 16
over as -- as a matter of course there. 17
Q Well, I'm talking specifically about messages that 18
you sent to, or messages you received from Governor 19
Easley, because we've already established that he 20
didn't have a state e-mail account that he actually 21
accessed. 22
A Uh-huh. 23
Q Correct?24
55
A Yes. 1
Q So, if there was ever an e-mail message that was 2
sent to Governor Easley or was received from him 3
that was potentially responsive to a public records 4
request, it would have had to go through that Road 5
Runner account, correct? 6
A Yes. 7
Q Okay. Do I understand you to say that you -- you 8
reviewed those records and, in your own mind, just 9
determined -- determined that none of them was ever 10
potentially responsive to a public records request? 11
A Generally, as a public records request came in, I 12
would review the public records request to see what 13
they were seeking. I don't recall there being a 14
time when there was something on my private account 15
that I would have even considered to be responsive. 16
Q Did -- to your knowledge, did Hampton Dellinger 17
have -- did he know Governor Easley's private e- 18
mail address? 19
A I do not know. 20
Q Did you ever advise him what it was, or tell him 21
what it was? 22
A Not that I recall. 23
Q To your knowledge, did Mr. Young know that e-mail24
56
address? 1
A I do not know. 2
Q Did you ever advise either Mr. Dellinger or Reuben 3
Young that the Governor had a private e-mail 4
address? 5
A I don't recall specifically having conversations 6
with either of them about the Governor having a 7
private e-mail. 8
Q To your recollection, neither of them ever asked 9
you about that? 10
A Not that I recall. 11
Q Now, I believe you testified earlier that you 12
never -- well, when you were leaving your position 13
as communications director, I take it that it had 14
already been determined that Ms. Johnson was going 15
to take your position, correct? 16
A Just a point of clarification. When I took the job 17
as external -- director of external affairs, I kept 18
the responsibility for communications director. 19
Q Okay. 20
A When I actually left the office in 2006, is when 21
Ms. Johnson became the communications director. 22
Q Okay. Well, you just brought up something that I 23
should have asked you about before.24
57
Can you explain to me what director of 1
external affairs added to your duties and 2
responsibilities? 3
A Sure. It involved -- it added to my 4
responsibilities responsibility for our 5
intergovernmental affairs office, which was our 6
Washington, D.C., office, and our Eastern and 7
Western offices. So, state and federal -- or 8
state, local, federal relations. 9
Q Had someone else held that position previously? 10
A Yes, sir. 11
Q Who was that? 12
A Ann Lichtner. 13
Q Ann? 14
A L -- L-I-C-H-T-N-E-R. First name was Ann. 15
Q Okay. All right. So, now, go back. 16
When you were leaving the Governor's 17
Office to go to the private sector -- 18
A Uh-huh. 19
Q -- you were aware that Ms. Johnson was going to 20
become the communications director, correct? 21
A Yes. 22
Q And at that point, or at some point, did you tell 23
her what the Governor's private e-mail address was?24
58
A I don't recall telling her what the Governor's 1
private e-mail address was. 2
Q Do you know what her recollection is on that? 3
A I do not. 4
Q Okay. I believe you testified previously that 5
you -- while she was the press secretary at least, 6
you never told her what that address was? 7
A Not that I remember, no. 8
Q Was -- to your knowledge, was she aware that there 9
was some kind of address? 10
A I don't know. 11
Q Now, you and she physically shared an office for a 12
time, did you not? 13
A Yes. 14
Q Did you ever send an e-mail to the Governor's 15
private account from that office while she was 16
present in the office? 17
A I don't remember. 18
Q Okay. What, if anything, did you do to prepare for 19
this deposition? 20
A Consulted with counsel and reviewed the -- 21
Q Now, when you say "consulted with counsel," you 22
have private counsel here, and you also have the 23
Attorney General's people here. Did you consult24
59
with all of them? 1
A Yes. I reviewed the Complaint and the various 2
documents that were attached to it. 3
Q Did you review any other documents? 4
A The records retention policy from when I was there. 5
Q Okay. Any others? 6
A (Shakes head negatively.) 7
MR. PETERS: Answer "yes" or "no." 8
Q You've got say "yes" or "no" for the record. 9
A Oh, I'm sorry. No. 10
Q The camera picks up your head shake, but the -- 11
otherwise, we have to invent something. 12
Other than counsel, did you have any 13
discussion with anyone else in preparation for this 14
deposition? 15
A Not in preparation for the deposition. 16
Q I want to clarify a small point here. 17
In -- in some of the records that I have 18
seen, you are -- you're referred to as Cari Hepp or 19
Cari Boyce Hepp? 20
A Yes, sir. 21
Q And just for the record, did you, at one point, use 22
that name? 23
A I did. I was previously married and have since24
60
divorced. 1
Q Okay. And so, the -- so, the -- if there are 2
records that refer to -- by the -- either to Cari 3
Hepp or Cari Boyce Hepp, they're referring to you? 4
A Yes. They're the same person. 5
Q Okay. I assumed so, but I just wanted to be clear. 6
Did you -- we've heard in other 7
depositions about the fairly regular meetings at 8
which public affairs or public information officers 9
from the cabinet agencies and executive branch 10
agencies would come together -- 11
A Uh-huh. 12
Q -- for meetings. 13
A Yes. 14
Q Did you -- for at least some of the time while you 15
were working for Governor Easley, did you arrange 16
and preside at those meetings? 17
A I did. 18
Q During what period did you do that, if you recall? 19
A I know that I presided and attended them in 2001 20
fairly regularly. After that, usually, it was 21
handled by the press secretary or the assistant 22
press secretary. I would attend on occasion, but 23
not regularly.24
61
Q Okay. What was the purpose of those meetings? 1
A The purpose of the meetings was to bring together 2
all of the public information officers from the 3
Governor's cabinet agencies, share information 4
about what was going on in their respective 5
agencies as far as public events, speaking events 6
for their secretary, media inquiries that we were 7
receiving. If the Governor were giving a major 8
speech, State of the State or something, we would 9
hand out advance talking points and discuss that 10
with them. 11
Q Now, I want to be -- see if I can be clear about 12
this. 13
When you refer to the cabinet agencies, 14
is that a reference to the agencies in the 15
executive branch over which the Governor had direct 16
authority such as appointing the secretary or the 17
head of that agency? 18
A Yes. 19
Q Does that term -- do I understand that that term 20
does not encompass, for example, the Department of 21
Agriculture or Insurance or Labor, where the 22
secretaries are directly elected by the people; is 23
that correct?24
62
A You're correct, yes. 1
Q Okay. Were there ever meetings of any kind that 2
included public affairs or public information 3
officers from those other executive branch 4
agencies? 5
A I don't recall any meetings that involved them. 6
Q Those -- those agencies generally have public 7
affairs or public information officers or -- 8
A Yes, sir. 9
Q Correct? 10
A Uh-huh. 11
Q Okay. But these -- so the cabinet agencies refer 12
to the agencies that are directly subordinate to 13
the Governor, if I can use that term. 14
A They were the agencies where the Governor appointed 15
the secretary, yes. 16
Q Okay. All right. And did any -- to your 17
knowledge, did any of those meetings ever include 18
any kind of review of or instruction concerning the 19
public records law or compliance with the public 20
records law? 21
A Can you be more specific? 22
Q Well, did -- for example, did -- did Hampton 23
Dellinger ever come in and talk about the public24
63
records law, or someone from the Attorney General's 1
Office, or someone from the School of Government, 2
or anything like that? 3
A Not that I remember, no. 4
Q Okay. Were those meetings ever used as sort of 5
training sessions, as opposed to simply exchanging 6
information, to your knowledge? 7
A Not that I recall, no. 8
Q Okay. Do you know of your own knowledge whether, 9
in any of those meetings, policies were -- or 10
procedures were conveyed to the public information 11
officers with respect to how they should -- what 12
modes they should use to communicate with the 13
Governor's Office? 14
A The -- not that it was a policy. The general 15
direction given to the public information officers 16
was to be -- if -- if they were going to put 17
something in e-mail that they would be embarrassed 18
by reading in the paper, they should probably just 19
pick up the phone and call us. 20
Q And who -- who conveyed that message to them? 21
A I know that I did early on in the Administration. 22
Q Okay. Were there ever directives given or 23
suggestions made about how to communicate -- what24
64
mode of communication to use with respect to 1
certain topics or subject matter? 2
A Not beyond what I just mentioned. 3
Q Okay. Did you ever instruct any of the public 4
information officers or public affairs officers not 5
to send e-mail to the Governor's Office about a 6
particular topic? 7
A No. Again, not beyond what I said earlier as 8
guidance. 9
Q Now, when you had telephone conversations with 10
people in these cabinet agencies, did you 11
customarily take notes of those conversations, make 12
notes? 13
A Occasionally, yes. 14
Q Did you retain those notes? 15
A I did not. 16
Q What did you do with them? 17
A Once I no longer needed them, I got rid of them. 18
Q What understanding, if any, did you have as to 19
whether those notes were, or potentially were, 20
public records? 21
A If I had them in my possession, then I believe that 22
they would be a public record. But I was following 23
the records retention policy. And if the24
65
administrative value of something had ended, there 1
was not a need to keep it. 2
Q Okay. What did you understand that to mean, when 3
you say the administrative value of it? 4
A In my mind, that meant -- I -- I followed the 5
records retention policy, which was very specific 6
about types of records that we were supposed to 7
keep, and for how long we were supposed to keep 8
them. And the other ones were at my discretion. 9
So, if a matter had been resolved and I didn't any 10
longer needs the notes on it, I didn't typically 11
keep them. 12
Q And was -- did -- was that your review, regardless 13
of the subject matter? 14
A I'm not sure what you mean. 15
Q Well, were there any notes that -- did you ever 16
determine in your mind that any notes you made of a 17
telephone conversation should be retained as 18
pursuant to the public records retention policy? 19
A My typical practice with something like that would 20
have been if I had made a note that I felt like I 21
needed to keep, it would have gone into a file on 22
whatever the subject was, and I would have kept it 23
if I -- and I don't recall exactly what I kept and24
66
didn't keep. 1
But, a lot -- let me maybe give you an 2
example. Most of the calls from public information 3
officers were about media inquiries they were 4
getting. So, typically, when some story had been 5
printed or the issue resolved, I didn't always -- I 6
did not see a need to keep those records. 7
Q Okay. In collecting records that were potentially 8
responsive to a public records request, do you ever 9
recall turning over any notes that you had made of 10
telephone conversations to counsel for review? 11
A I don't recall that I did, no. 12
Q Did you have occasion, from time to time, to sit in 13
on face-to-face conferences with the Governor? 14
A Yes. 15
Q Did you make notes in those meetings? 16
A Occasionally. 17
Q Did you treat those notes any differently than the 18
notes from the telephone conversations that we've 19
just been talking about? 20
A No. I kept them -- a lot of times, the conferences 21
I would sit in on would be media interviews. I 22
would keep the interview notes for a certain amount 23
of time. Once the piece had run or, you know, I24
67
didn't need them anymore, I would not keep them. 1
Q Did you ever -- 2
A We also kept transcripts of most of those, too, and 3
those were transcribed and kept in a central file. 4
Q Okay. While you were employed at the Governor's 5
Office, did you ever receive any instruction from 6
counsel about handling your notes of telephone 7
conversations or of meetings? 8
A No. 9
Q What was your understanding as to your 10
responsibility in terms of retaining e-mail that 11
you sent from or received on your state e-mail -- 12
on the state e-mail system? 13
A That that followed the same records retention 14
policy as other documents in the office. 15
Q And what was your understanding in terms of your 16
authority to delete e-mail? 17
A That, if an e-mail was, you know, short term in 18
value, that I didn't need to keep it. That if it 19
was related to anything that needed to be retained, 20
that I did. 21
Q And how did you make that determination? 22
A I really followed the records retention policy. 23
Q As you understood it.24
68
A As I understood it, yes. 1
Q Okay. And, again, I don't want to -- I just want 2
to be clear. 3
A Yes, sir. 4
Q Was there ever any occasion during the entire time 5
that you worked for Governor Easley, that there was 6
anything, any kind of training with respect to the 7
retention policy? 8
A There was no formal training that I recall when I 9
was in the Governor's Office. 10
Q Okay. You were given the policy, I take it? 11
A Yes. 12
Q You had the policy? 13
A Yes, sir. 14
Q Did you base your understanding of that policy 15
purely on your own interpretation or on something 16
else? 17
A If I had questions about anything, I talked to 18
counsel about it. 19
Q Do you recall ever having done -- done that? 20
A I'm sure that I do -- did, but I can't recall a 21
specific -- 22
Q Okay. 23
A -- instance.24
69
Q Okay. And what was your understanding, if any, 1
with respect to your responsibility to retain e- 2
mail that you sent from or received on your private 3
account that related to state business? 4
A Again, I don't think I had a clear -- there wasn't 5
clarity about that, but I typically -- if I was 6
using my private account for state business, I was 7
following the same general records and retention 8
policies. You know, a lot -- as I mentioned, 9
drafts were sent back to the office. E-mails, if I 10
needed them, I kept them. 11
MR. STEVENS: Let's -- let's take a 12
break. I may be done. 13
(RECESS, 10:43 - 10:56 A.M.) 14
Q Okay. Just a couple of questions. 15
A Okay. 16
Q Ms. Boyce, did -- these PIO meetings that were held 17
with the cabinet agencies, did -- in your 18
experience, did anyone keep minutes or notes of 19
those on a systematic basis? 20
A Not necessarily on a systematic basis. There were 21
occasions when there -- like, meetings I didn't 22
attend, I got an e-mail from somebody saying, 23
"Here's -- here are some things that came up in the24
70
PIO meeting." But I don't remember that being a 1
regular practice, to keep minutes. 2
Q So, at least in your experience, you didn't have a 3
staff person whose -- who was tasked with kind of 4
keeping notes or -- or that sort of thing? 5
A Not while I was there, no. 6
Q Okay. Were you ever instructed by anyone to -- not 7
to respond to press or public records requests of 8
particular entities or individuals? 9
A Never. We didn't -- we always responded to public 10
records requests that came in. Press inquiries or 11
inquiries that came in from The John Locke 12
Foundation we, typically, did not respond to. 13
We -- we tended to treat those like public records 14
requests. And if they were asking about a 15
particular topic, if we had documents related to 16
that, we would turn them over to them. 17
Q Was there a particular reason for that? 18
A In our experience in dealing with them, that they 19
were more of a partisan policy organization than a 20
true media outlet. 21
Q Who made that decision, do you know? 22
A I think it was a practice that started with our 23
campaign operation that carried over into the24
71
Governor's Office. 1
Q Okay. Did you ever -- did you ever advise or 2
instruct anyone to delete e-mail from their state 3
account? 4
A No. 5
Q Did you ever advise or instruct anyone to dispose 6
of a document of any kind that -- and not retain 7
it? 8
A No. The -- the guidance I gave was to follow the 9
records retention policy. 10
Q Did you ever get specific instructions from 11
Governor Easley about responding to a particular 12
public records request? 13
A Not that I recall. 14
Q Did you ever have occasion to communicate with Mrs. 15
Easley? 16
A I did, yes. 17
Q And how did you typically communicate with her? 18
A Typically, by phone. 19
Q Did you ever have occasion to send e-mail messages 20
to her? 21
A I did. 22
Q Did you have occasion to receive e-mail messages 23
from her?24
72
A Yes, I did. 1
Q Did she have a state e-mail account? 2
A Not that I remember, but she may have. 3
Q I understand she had a private e-mail account? 4
A She did. 5
Q Was it also a Road Runner account? 6
A No. She had an AOL account. 7
Q Did any of the e-mails that you sent to that 8
account relate to state business, official 9
business? 10
A They may have, yes. 11
Q And did any -- do you recall any messages you 12
received from that account related to state or 13
official business? 14
A Again, they may have. 15
Q Were you ever given instructions by anyone with 16
respect to the disclosure of either Governor 17
Easley's private e-mail address or Mary Easley's 18
private e-mail address? 19
A Not that I recall. 20
Q Did you ever have occasion to communicate by e-mail 21
with any other member of the Governor's family? 22
A His son. 23
Q And -- okay. I take it he had a private e-mail24
73
account? 1
A He did. 2
Q What were the -- what were the circumstances under 3
which you would have communicated with him, either 4
by sending an e-mail to him or receiving e-mail 5
from him? 6
A It would have all been personal. 7
Q Never any that related to any kind of state 8
business? 9
A No. 10
Q Okay. Were you -- did you have knowledge of the -- 11
of -- of private e-mail accounts by any other 12
elected official, other than Governor Easley? 13
A Not personal knowledge, no. Can I go back to that 14
question about the family members? 15
Q Yes. 16
A He also had his sister, Marie, and his brother, 17
Sandy, were two people I communicated with as well. 18
Q Again, about personal matters? 19
A Yes. 20
Q The question was, did you ever have knowledge of 21
the existence of a personal e-mail account, or use 22
a personal e-mail account -- wait a minute. Let me 23
strike that.24
74
A Send an e-mail? 1
Q Did you ever -- did you -- were -- did you ever 2
have occasion to send an e-mail message to a 3
private account for another elected official, other 4
than Governor Easley? 5
A No. 6
Q For example, just to be clear, did you ever -- do 7
you ever recall sending a message to or receiving a 8
message from a personal account of a member of the 9
General Assembly? 10
A Not that I recall. 11
Q How about the secretaries of any of these cabinet 12
agencies? Do you recall whether any of them had 13
private e-mail accounts? 14
A They may have, but I don't have any specific 15
recollection of communicating with them that way. 16
Q Okay. How did you -- did you have occasion to 17
communicate with the secretaries of the cabinet 18
agencies? 19
A I did. 20
Q How did you do that, typically? 21
A Typically, by phone or in person. 22
Q Did you also communicate with them through their 23
respective PIO's and --24
75
A Yes. 1
Q -- public affairs people? 2
A Uh-huh. 3
MR. PETERS: Answer "yes" or "no." 4
A Yes. Sorry. 5
WITNESS: Thanks. 6
Q I may have asked you this. If I did, again, I 7
apologize. 8
Did Reuben Young have a private e-mail 9
account? 10
A I do not know if he had one. 11
Q Okay. You've never had occasion to communicate 12
with him through a private account; is that 13
correct? 14
A Not that I remember, no. 15
MR. STEVENS: Okay. I think that's all I 16
have. Thank you very much. 17
WITNESS: Thank you. 18
MR. STEVENS: Counsel, do you have any 19
questions? 20
MR. PETERS: I think we've just got a 21
few. 22
CROSS EXAMINATION BY MR. PETERS: 23
Q Ms. Boyce, I believe you were asked earlier24
76
whether -- you were asked some questions about the 1
procedure you would follow when a public records 2
request came in to the press office. And I'm going 3
to ask a couple of things. 4
One is, did the press office deal with 5
all public records requests that came in to the 6
Governor's Office, or did it deal just with the 7
ones that came from media groups or organizations, 8
from the press? 9
A I believe that they handled all of them. 10
Q Okay. 11
A There -- there may have some that were handled 12
directly by counsel, that they came from -- not 13
from a media outlet, but the majority of them were 14
handled by the press office. 15
Q Okay. And you were asked a question about 16
whether -- I believe you said you would send an e- 17
mail or word of some kind to appropriate people in 18
the Governor's Office, to say, "We've received this 19
request." 20
A Uh-huh. 21
Q Can you describe a little bit how you might have 22
done that? 23
A We, typically -- if they had sent an e-mail, we24
77
often just forwarded the e-mail to say, "These are 1
the documents." You know, "Please see the attached 2
e-mail request. If you have any documents that are 3
responsive, please provide them to us." And we 4
usually gave a deadline. Or, "If you can't meet 5
that deadline for some reason, let us know." 6
If it was a letter, since we didn't have 7
a scanner at that time, we would transcribe the 8
relevant request into the e-mail and ask for it 9
that way. 10
Q And I believe you said earlier that you don't 11
recall ever specifically saying, "Check your 12
private e-mail -- personal e-mail on this as well." 13
But, specifically, what did you say to the people? 14
A The responses -- or the requests were, typically, 15
"Please provide any documents that you have that 16
may be responsive to this request." 17
Q Okay. And I believe you also said that, typically, 18
you would -- when the documents came in, you would 19
give them to counsel, to Hampton or Reuben or 20
whoever. But I think you said that, sometimes, 21
when they were simple, you would just deal with it 22
yourself. 23
And could -- could you describe a little24
78
bit about what would have been a simple request 1
that you would have dealt with yourself? 2
A Sure. We would have -- whenever the Governor gave 3
a press conference or a speech, we -- we, 4
typically, tape recorded it and transcribed that. 5
And, frequently, reporters would call and ask, 6
either if they had missed the event or if something 7
wasn't clear in their own notes, if they could get 8
copies of that. And I wouldn't call counsel to ask 9
if it was okay to turn those over. I just did. 10
Q Can you think of any other examples of that? 11
A If they had called and asked me for copies of press 12
releases or wanted a copy, for example, of the 13
Governor's budget, and we just turned that over. 14
Q Okay. And, finally, you've been asked a number of 15
questions about communicating with the Governor 16
through his personal e-mail account. 17
Do you recall whether you ever received 18
an e-mail from him that he sent from his personal 19
account that came to you at your state account, on 20
your state -- through your state account? 21
A I don't recall the specific e-mail, but I do 22
remember having conversations with him on at least 23
one occasion where he said, "Where should I send24
79
this? Where are you? Should I send it to the 1
state or personal?" 2
Q So, he did, at least sometimes, send you e-mails 3
from his personal account to your state account? 4
A Yes. 5
MR. PETERS: Okay. I've got no further 6
questions. 7
MR. STEVENS: I don't think I have any 8
further questions. Thank you. 9
(WITNESS EXCUSED) 10
(WHEREUPON, THE DEPOSITION WAS CONCLUDED AT 11:10 A.M.) 11
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.) 12
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80
STATE OF NORTH CAROLINA 1
COUNTY OF ROCKINGHAM
CERTIFICATE 2
I, Brenda J. Thissen, a Notary Public in and for 3
the State of North Carolina duly commissioned and 4
authorized to administer oaths and to take and certify 5
depositions, do hereby certify that on January 28, 2010, 6
Cari Boyce, being by me personally duly sworn to tell the 7
truth, thereupon testified as above set forth as found in 8
the preceding 79 pages, this examination being reported by 9
me verbatim and then reduced to typewritten form under my 10
direct supervision; that the foregoing is a true and 11
correct transcript of said proceedings to the best of my 12
ability and understanding; that I am not related to any of 13
the parties to this action; that I am not interested in the 14
outcome of this case; that I am not of counsel nor in the 15
employ of any of the parties to this action. 16
IN WITNESS WHEREOF, I have hereto set my hand, this 17
the 3rd day of February, 2010. 18
___________________________
Notary Public 19
Notary Number Brenda J. Thissen 20
19982640138 Worley Reporting 21
6511 Creedmoor Road, Ste. 205 22
Raleigh, North Carolina 27613 23
(919) 870-807024
81
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE 1 SUPERIOR COURT DIVISION COUNTY OF WAKE 08 CVS 6528 2 THE NEWS AND OBSERVER PUBLISHING ) 3 COMPANY d/b/a The News & Observer, ) et al.; ) 4 Plaintiffs; ) ) 5 v. ) ) 6 MICHAEL F. EASLEY, in his official ) capacity as former Governor of North ) 7 Carolina, and in his individual ) capacity; et al.; ) 8 Defendants. ) ___________________________________________________________ 9 DEPOSITION OF CARI BOYCE CERTIFICATE OF DEPONENT 10 ___________________________________________________________ 11 I, Cari Boyce, hereby certify that I was first duly sworn prior to the commencement of my deposition, which was 12 given before Brenda J. Thissen, on January 28, 2010, in Raleigh, North Carolina; review, examination and signing of 13 the deposition was not waived. The foregoing constitutes a true and accurate transcript of said deposition; 14 (a) and no changes are necessary. 15 (b) however, I desire that the changes attached hereto on the errata sheet be incorporated into said 16 deposition. 17 ______________________________ 18 Cari Boyce 19 Witness, my hand and seal, on this, the _____ day of ________________, 2010, 20 ____________________________ 21 Notary Public 22 23 My Commission Expires: __________24
82
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE 1 SUPERIOR COURT DIVISION COUNTY OF WAKE 08 CVS 6528 2 THE NEWS AND OBSERVER PUBLISHING ) 3 COMPANY d/b/a The News & Observer, ) et al.; ) 4 Plaintiffs; ) ) 5 v. ) ) 6 MICHAEL F. EASLEY, in his official ) capacity as former Governor of North ) 7 Carolina, and in his individual ) capacity; et al.; ) 8 Defendants. ) ___________________________________________________________ 9 ERRATA SHEET TO THE DEPOSITION OF CARI BOYCE 10 ___________________________________________________________ PAGE LINE SHOULD READ REASON FOR CHANGE 11 12 13 14 15 16 17 18 19 20 Signed this the ______ day of ___________________, 2010. 21 22 ______________________________ 23 Cari Boyce 24