INTRODUCTION: This post is about a civil case,
Teltschik vs. Williams & Jensen, PLLC, et. al.. To learn more about this case, click on the "Teltschik" label at the bottom of this entry. Also notice that attorneys for Corwin Teltschik asked for a deposition of Tom DeLay himself regarding decision making at ARMPAC. Because we're told that Mr. DeLay ignored such requests and there doesn't seem to be any subpoenas for Mr. DeLay, I'm assuming that Mr. DeLay was never deposed in this matter.
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This morning, at 9:00 a.m., Christine DeLay was scheduled to appear for a deposition in the civil case
Teltschik vs. Williams & Jensen, PLLC, et. al.. Plaintiff Corwin Teltschik, treasurer of Tom DeLay's leadership PAC ARMPAC, wanted to ask questions regarding the operations at ARMPAC. Mrs. DeLay tried to quash the subpoena, but there is nothing on PACER indicating whether or not she was successful. Consequently, I have no idea whether or not the deposition took place today as scheduled.
On New Year's Eve,
Mr. Teltschik responded to Mrs. DeLay's
motion to quash. There was a whole lot of good stuff in that response. Let's look at Mr. Teltschik's response:
3. Contrary to her averments, Christine DeLay is a person with knowledge relevant to the claims asserted and the defenses raised. Teltschik is entitled to discover any non-privileged matter that is relevant to any party’s claims or defenses.
4. And contrary to her assertions, Christine DeLay has non-privileged information that is relevant to his claims.
Relevant Knowledge
5. ARMPAC (Americans for a Republican Majority Political Action Committee) was set up by then-Congressman Tom DeLay. In 1995, Tom DeLay’s wife, Christine DeLay, asked Teltschik to become treasurer of ARMPAC. This was a position that was then held by Barbara Wixon Bonfiglio. Why did the DeLays, and Christine in particular, feel that it was necessary to replace Ms. Bonfiglio – then a partner at Williams & Jensen – with Mr. Teltschik?
I like the questions in paragraph 5. I have long asked why
ARMPAC needed a naive treasurer. Mr. Teltschik assumes that the DeLays wanted the naive treasurer, too. I suppose it wasn't anyone at Williams & Jensen who wanted a naive treasurer. After all, Barbara Bonfiglio remained treasurer at dozens of PACs and politicians' charities. The W&J crew was perfectly willing to serve as treasurer as such entities. There was something unique about ARMPAC.
6. To assuage Mr. Teltschik’s concerns regarding the filing and reporting requirement of ARMPAC, Christine DeLay told Mr. Teltschik that Williams & Jensen were know to be well versed and competent in matters pertaining to PACs.
7. Christine DeLay (and Barbara Wixon Bonfiglio) told Mr. Teltschik that Williams & Jensen:
a. were very competent in matters regarding PACs and would provide comprehensive compliance and administrative services so as to make sure that all “i”s were dotted and “t”s were crossed;
b. had prepared all the formation documents for ARMPAC;
c. would continue to prepare and keep all internal corporate documents;
d. would received and disburse all funds;
e. would open and maintain all bank accounts; and
f. would prepare and file all necessary compliance documents (reports) that were required by the FEC and other government agencies….
9. In 1995, Mr. Teltschik became Treasurer of ARMPAC. According to Williams & Jensen, ARMPAC has no organizational minutes, no by-laws, no minutes of meetings of officers or directors, and the Treasurer is the only person ultimately responsible for the running of the PAC. But such was not the case with ARMPAC. Apparently, Christine DeLay was ultimately responsible for the running of ARMPAC.
10. In 2007, Tom DeLay published his book, No Retreat, No Surrender. According to “Lie No. 6” in Tom DeLay’s book, Christine DeLay was employed by ARMPAC, was involved with all facets of the PAC, including accounting, and was “the ultimate decision maker” in ARMPAC, with her “wisdom and many hours on the job” taking “ARMPAC to new heights”…
Interestingly, in my
2007 review of No Retreat, No Surrender, I paid special attention to "Lie Number 6", too. Lie Number Six was:
Tom DeLay hired his wife and daughter to do nothing - except party in Las Vegas. My objection was that Mr. DeLay employed misdirection when he denied his family had no-show jobs for his campaign and PAC. The allegation of a no-show job was the "job" given to Christine DeLay by Ed Buckham's Alexander Strategy Group. Christine and Dani DeLay may have had very real jobs with various campaigns and PACs, including ARMPAC. While I've said that is "stinky", I don't think it is unlawful. My position that Christine DeLay had a no-show job at Alexander Strategy Group does not conflict with Mr. Teltschik's position that Christine DeLay was the "ultimate decision maker" at ARMPAC.
11. According to information now available to Mr. Teltschik, Christine DeLay became an employee of ARMPAC in or about 1998, or about 3 years after Mr. Teltschik became Treasurer of ARMPAC. Mr. Teltschik was not consulted about hiring Christine DeLay as an employee of ARMPAC. And Mr. Teltschik did not even learn that Christine DeLay was an employee of ARMPAC until 2004. Mr. Teltschik was not consulted about hiring anyone to work for ARMPAC. Since Christine DeLay was the “ultimate decision maker for ARMPAC”, she should know how ARMPAC’s employees came to be hired, who hired them, what their compensation was and what their responsibilities were. Those facts are all relevant to the issues presented in this case.
I believe Mr. Teltschik is making the case here that Mrs. DeLay has knowledge of the events leading up to ARMPAC’s hiring of campaign finance lawyer and current chairman of the Federal Election Commission Don McGahn. I don’t know what information lawyers for Mr. Teltschik possess that “Christine DeLay became an employee of ARMPAC in or about 1998”, but the dates here are consistent with what Mr. DeLay wrote in his book (p.153):
Ed Buckham had left his chief of staff position with me and was running a PAC I had started called Americans for a Republican Majority Political Action Committee (ARMPAC). Eventually he chose to leave and start his own business. I asked Christine to help me run ARMPAC as a partnership … So the PAC hired her …Ed Buckham founded Alexander Strategy Group in September 1997 and left employment with Mr. DeLay in December 1997. So if Mr. DeLay is truthful in his book, Christine DeLay was hired in late 1997 or sometime in 1998. This is consistent with the assertions by Mr. Teltschik.
12. While Christine DeLay was an employee of, and the ultimate decision maker at ARMPAC, someone forged Mr. Teltschik’s name on correspondence to the FEC, changing his address for notice regarding ARMPAC from his home in Sugar Land, Texas, to the offices of Williams & Jensen. Someone also forged Mr. Teltschik’s signature on reports filed with the Federal Election Commission. These reports became the subject of an audit by the FEC.
15. Christine DeLay was the ultimate decision maker at ARMPAC while all of this was happening. Mr. Teltschik did not learn of any of this until after the Conciliation Agreement was finalized. The Conciliation Agreement is the culmination of violations (the “Mis-Allocations”) disclosed by an audit by the FEC of the books, records and filed reports of ARMPAC regarding its financial activities for the period beginning on January 1, 2001 and ending on December 31, 2002 (the “Audit Period”).
16. The underlying complaint to the FEC and the Conciliation Agreement should not and would not have occurred if the contributions and expenditure of ARMPAC funds had properly been accounted for and properly reported. ARMPAC staff was apparently opposed to any conciliation with the FEC. According to a Memo dated May 2, 2005, staff (Jim Ellis) expressed strong opposition to any conciliation with the FEC. A copy of such Memo is attached as Exhibit 3. Someone had to make the management decisions to improperly allocate ARMPAC funds in the FEC filing for the Audit Period.
a. Either Williams & Jensen, through negligence or intent, acting alone and contravention of its express and acknowledged instructions, failed to properly account for and report ARMPAC funds, or
b. Someone else, presumptively Christine DeLay who was the ultimate decision maker for ARMPAC, instructed Williams & Jensen to improperly allocate ARMPAC funds when it filed the FEC reports for the Audit Period. Robert Martinez has implied that someone else instructed them to file the Mis-Allocations when Mr. Teltschik related to him that Don McGahn told him that Williams & Jensen had just “dropped the ball” when it filed the improper reports.
17. Christine DeLay claims to have no knowledge of the Conciliation Agreement, or its negotiation, or the facts underlying the complaint that ultimately gave rise to the Conciliation Agreement. But she does not address how she, as the “ultimate decision maker for ARMPAC,” allowed these misallocations to occur, or how those Mis-Allocations came to be attributed to Mr. Teltschik, instead of Ms. DeLay, or Ms. Bonfiglio, or whomever else was involved in the allocations, making the reports, etc..
18. Further, someone had to make the decision to not defend the charges raised in MUR 5675 and to enter into the Conciliation Agreement. Someone also had to make the decision to withhold information regarding the audit findings and the Conciliation Agreement from Mr. Teltschik. As the “ultimate decision maker” in ARMPAC, it is to be assumed that Christine DeLay had some part in those decisions. Why Mr. Teltschik, as Treasurer of ARMPAC, was not consulted on any such matters, is important in the context of the claims that he has asserted in his suit.
19. Who made those decisions, when they were made, and why they were made are important in the context of Mr. Teltschik’s case. Especially since Robert Martinez told Mr. Teltschik that Williams & Jensen had authorization for all allocations and expenditures for ARMPAC. Who that authorization ultimately came from is material to Mr. Teltschik’s claims.
20. Robert Martinez, a defendant and partner in Williams & Jensen, told Mr. Teltschik that there were no ARMPAC minutes – organizational or otherwise – regarding decisions of ARMPAC management. Who was actually acting as management, who made those decisions, who was involved in making those decisions when they were made, are important to Mr. Teltschik’s claims. As the “ultimate decision maker in ARMPAC”, Christine DeLay is to be presumed to have knowledge about same. That is relevant to Mr. Teltschik’s claims against Williams & Jensen and the other individual defendants.
Mr. Teltschik and his attorneys rely heavily on the characterizations of Christine DeLay as the “ultimate decision maker in ARMPAC” found in Tom DeLay’s book. It seems to me that two possibilities exist here.
1) Tom DeLay accurately described Christine DeLay’s role at ARMPAC and Mrs. DeLay was in a position to know how matters in MUR 5675. Therefore, a deposition is appropriate to determine whether or not Mrs. DeLay has discoverable information; or
2) Tom DeLay exaggerated Christine DeLay’s role at ARMPAC almost to the point of untruthfulness. Let’s assume for a second that Tom DeLay’s description of Christine’s role at ARMPAC is entirely false. Since Tom DeLay was chairman of ARMPAC, Mr. Teltschik can’t so easily dismiss the statements by Tom DeLay. A deposition of Christine DeLay would determine a) if Tom DeLay’s characterization of her role is accurate; and b) if so, what Mrs. DeLay’s role was in the decision making process with respect to MUR 5675.
Either way, it appears to me that lawyers for Mr. Teltschik have demonstrated that Mrs. DeLay possibly has enough knowledge to make a deposition worthwhile.
Attorney-Client Privilege
21. Christine DeLay asserts that some of her knowledge may fall with the “attorney-client privilege.” But not all communications with an attorney are privileged. And until the question is asked, there is no way of knowing whether the attorney-client privilege might apply to the communication sought to be protected by the privilege. An unfounded concern that a question might impinge upon some attorney-client privilege is not a reason to quash a subpoena.
22. Assuming that Christine DeLay were to invoke the attorney-client privilege to avoid answering questions about her communications with Williams & Jensen and its attorneys, the question would arise as to whose attorney-client privilege she would be attempting to invoke.
23. ARMAC is (was) an entity, separate and apart from Christine DeLay. Presumptively, the attorney-client privilege would exist between ARMPAC and its attorneys, Williams & Jensen. As such, the ARMPAC’s privilege belongs to ARMPAC and not to Christine DeLay. As Treasurer and the only existing officer of ARMPAC, Mr. Teltschik is the only person who can decide to waive ARMPAC’s privilege.
24. To the extent that Williams & Jensen was communicating with Christine DeLay about ARMPAC, those communications could be privileged since attorneys have to communicate with corporate employees in order to find out facts so that [sic] can provide legal advice to corporate entities and subsequently to have that advice implemented. If Christine DeLay’s communications with Williams & Jensen fall within the privilege, then she will have knowledge of facts relevant to Mr. Teltscik’s claims.
25. On the other hand, if the attorney-client privilege asserted is Christine DeLay’s personal privilege, then Williams & Jensen is in the position of representing clients with conflicting interests, without disclosure and without obtaining a waiver from all concerned. This is discoverable in the context of Mr. Teltschik’s suit.
I briefly
mentioned this attorney-client privilege issue. Lawyers for Williams & Jensen are constructing some sort of logic pretzel with these claims. I admit that I didn’t flesh it out as comprehensively as lawyers for Mr. Teltschik have in paragraphs 21-25. Therefore, this discussion is more complete than I could have dreamed of making. Honestly, I still can’t see what kind of attorney-client privilege Mrs. DeLay would like to invoke.
[Basically, my thought process was that if the privilege belonged to ARMPAC, then Christine DeLay and ARMPAC are essentially admitting that Mrs. DeLay was involved in high-level management decisions at ARMPAC. Since Mrs. DeLay clearly stated that she did not participate in high-level decisions regarding the Conciliation Agreement in her affidavit, it would be highly unlikely there would be attorney–client privilege belonging to ARMPAC. I never considered that Mr. Teltschik is the only person available to invoke attorney-client privilege on behalf of ARMPAC. I mentioned the troublesome possibility that Mrs. DeLay had some sort of personal attorney-client privilege with Williams & Jensen.]
No Spousal Immunity
26. Christine DeLay claims that “any testimony regarding her dealings with her husband may be protected by spousal immunity…” The privilege against adverse spousal testimony protects the marital relationship by preventing the prosecution in a criminal case from forcing one spouse to testify against the other. But this is not a criminal case. And if Mr. DeLay is as innocent as he (and Christine DeLay) claim, why is Mrs. DeLay afraid of giving full and complete testimony about her and Mr. DeLay’s involvement in the acts that ultimately gave rise to this lawsuit?
27. Again, concern that a question might impinge upon a privilege is not a reason to quash a subpoena. It is only a basis of objecting to a question posed during the deposition.
I like the reasoning given in paragraph 27 more than the reasoning of paragraph 26. Although the case at hand is a civil case, Mr. DeLay is under criminal indictment. Recall the partisan money-laundering indictment by rogue DA Ronnie Earle in Travis County. Although that case involves ARMPAC’s sister PAC, TRMPAC, Mr. DeLay does have a legitimate criminal indictment to deal with. It is a shame that Ronnie Earle’s overzealous prosecution is preventing us from learning facts about Mr. DeLay’s activities. I don’t know the limits of spousal privilege, but it certainly would have been instructive if Mr. DeLay claimed spousal privilege for acts related to the serious yet unindicted federal case.
No Undue BurdenI have quoted verbatim much of plaintiff’s response in this post. Mrs. DeLay says responding to the subpoena is burdensome; Mr. Teltschik says it is not. Here are some facts I gleaned from plaintiff’s response in this section:
1. Counsel for Mr. Teltschik sent a letter to
Tom DeLay requesting a deposition. Mr. DeLay did not respond (paragraph 30). It is not clear to me if counsel for Mr. Teltschik gave up on deposing Mr. DeLay or not. I don’t see anything leading me to believe that such a deposition ever took place. Of course, absence of evidence isn’t evidence of absence, so we don’t know what happened to the request to depose Mr. DeLay.
2. I had noticed a subpoena for Mrs. DeLay to provide a deposition on December 16, 2008. Court documents didn’t make it clear what happened to that subpoena. In paragraph 31, we learn that the original subpoena was never served on Mrs. DeLay “as Christine DeLay was no place to be found”. I interpret that to mean that Mrs. DeLay successfully ducked service on the first subpoena.
3. It took a process server 16 attempts to serve Mrs. DeLay before he was successful. I like this narrative on the successful attempt (paragraph 35):
Counsel’s process server was able to serve Christine DeLay only because one of her pet dogs escaped and jumped into the process server’s car, where he served her when she came to retrieve the dog.
4. Discovery cut-off deadline is January 5, 2009 (paragraph 39). This is reason enough to have the deposition today (January 2, 2009) as scheduled. Since we’ve also learned that Mrs. DeLay ignored requests for a deposition at her convenience and the fact that she successfully ducked 15 attempts to serve her with the subpoena, I have a whole lot less patience with her claim that she wasn’t given enough time to prepare for the subpoena.
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