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Russ Whitney schedules depositions of Rob Yates and his wife On June 20, 2005, Russ Whitney' latest lawyer assigned to the Reed case, Christopher Sharp, sent notices to me and to Gary Bass, the attorney for Rob Yates, that the Whitney crew was going to take Yates" deposition and that of Yates" wife on July 22, 2005 in Fort Myers. Yates is the former Whitney paralegal who refused to carry out Russ Whitney' order to pose as a book author wanting information about me. See my article on Yates and Whitney. He is also my co-defendant in the Lee County case filed by Whitney against me. Conflict with my schedule On June 15, 2005, I told a federal magistrate judge in a telephonic hearing that I was working at a football coaching camp in California on the weekdays of July 11-15 and July 18-22. Whitney' lawyers were on the phone with me and the magistrate judge during that hearing. I also said the same thing in writing in a motion I filed on May 27, 2005 with the Lee County, FL court. You always have to send the opposing side a copy of such motions. So Whitney' lawyers knew that I was busy on July 22, 2005, but they scheduled a deposition that I would be entitled to attend on that date anyway. Cute. Chlidish, but cute. And not the first time they have pulled that stunt. I have asked them to reschedule it for a later date. If they refuse to do so promptly, I have to file a motion for a protective order with the federal court. Yates witnesses Over the June 18-19 weekend, I discovered a bunch of papers I had from the Yates lawsuits. I wrote an article about them which I alluded to above. I also decided to add Yates and his wife to my witness list for the Whitney federal trial. Whitney' lawyer Sharp said in his cover letter announcing the depositions that they needed to take Yates" depositions before the evidentiary hearing in the federal case because I said I was going to have the Yates" testify at that hearing. That is a hearing to be scheduled after July 22, 2005 for the purpose of deciding whether Whitney' motion for a preliminary injunction should be granted. The preliminary

injunction would prohibit me from criticizing Russ Whitney or his companies by name anywhere. (See my opposition to that motion) That is the hearing that was supposed to have occurred on May 13th, then June 15th. But Whitney keeps postponing it because his lawyer Scott Rothstein is sick. (See https://www.johntreed.com/Whitneycontinuance.html, Whitneydelay.html, Whitneydelay2.html) I said no such thing. Here is the full text of the email: June 18, 2005 subject: Additional witnesses for federal case Robert Eugene Yates 2200 Sunrise Boulevard Fort Myers, FL 33907 239-274-9859 Mrs. Robert Eugene Yates (nee Janice Lee Modersohn) 2200 Sunrise Boulevard Fort Myers, FL 33907 239-274-9859 John T. Reed Whitney lawyer Scott Rothstein had previously requested my witness list for the evidentiary hearing. The only one I named was Russ Whitney. I had given him a number of names of other witnesses previously. He never scheduled depositions of any of them. I surmise that the Whitney law firm thinks we are intimidated by depositions. On a couple of occasions years ago, Rothstein demanded dates for my deposition in California. I immediately gave him dates. Never heard from him about it again. Yates is a paralegal. So is his wife. I wouldn"t think they would be intimidated by depositions. I have been in a number of them. They are a pain, but so is the rest of litigation. I get the impression that Whitney and his lawyers figure Yates can"t say anything because of attorney-client privilege. We"ll see about that. As I understand it, attorney-client privilege lets Russ Whitney prevent Yates from disclosing confidential communications between he and his attorney (or paralegal). Fine. Let Yates testify about all the communications that went to a wider group like when a non-attorney or non-paralegal was in the conversation or an addressee on the email. Also, there has been litigation between Whitney and Yates with regard to the job Yates did. I understand that if you sue your lawyer for malpractice, attorney-client privilege is then over between that lawyer and that client. Has Russ Whitney or his company done the equivalent of suing Yates for malpractice by firing him? If so, one would expect Yates could get a ruling that attorney-client privilege is over with regard to Whitney so Yates can defend himself adequately. To be covered by attorney-client privilege, the communication must originate in a confidence. So if Russ was running his mouth in from of a group that included both Yates, and, say, the janitor, threat particular communication is not privileged. Wigmore, who is arguably the legal profession' biggest expert on evidence, says, "[attorney-client privilege] is an obstacle to the investigation of the truth. It ought to be strictly construed within the narrowest possible limits, consistent with the logic of its principle." Attorney-client privilege only covers communications relating to the purpose of seeking legal advice. Once the privilege is waived, it cannot be unwaived. That is, if Russ Whitney said something in an email or in a public place where the audience included non-employees, he waived attorney-client privilege with regard to that communication and cannot later get it back. In order to claim attorney-client privilege about a particular piece of information, the client"”Russ Whitney"”must never have behaved in a way that let that information out to persons not in a legal-advice-seeking setting. The burden of proof is on Whitney to prove that each piece of information he claims is privileged was never let out beyond the lawyers or paralegals by him"”even if it was inadvertent. Must concern legal advice Courts have said that a client getting business or accounting advice from a lawyer is not covered by attorney-client privilege. This is significant because Yates says Whitney was sending emails around the company saying that the Reed matter was a marketing issue, not a legal one. Just so, Russ. and you may have flushed attorney-client privilege down the toilet with that announcement. To get paid A lawyer or paralegal may reveal some otherwise attorney-client privilege information if necessary to collect his fee. Again, given the litigious nature of the Whitney-Yates employment, there may be some basis for Yates to disclose some facts in conjunction with efforts to get the full compensation to which he was entitled. His various complaints against Whitney include claims of lost compensation. To defend self A lawyer or paralegal may reveal otherwise privileged information when necessary to defend himself against accusations of wrongful conduct. Do we have those in this case? Oh, you betcha! Yates says Whitney filed criminal charges against him. Boy, that Whitney sure is a tough customer! And in the process of being such a tough customer, he may have waived attorney-client privilege with regard to the guy he accused of criminal conduct: Rob Yates. He is also accusing Yates of wrongful conduct in the suit in which Yates and I are co-defendants. Whitney is accusing Yates of breach of contract and violation of the Florida Trade Secrets Act. The law does not expect Yates to remain silent with regard to evidence that he could use to defend himself when his former client is suing him. So filing a civil suit against Yates is yet another way in which Russ Whitney has waived attorney-client privilege. Future crime Here is a line from a law book, "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." Yates says that Whiney ordered him to pose as an author writing a book about me to get my friends and acquaintances to divulge information about me to Yates and, thereby, to Whitney. Yates says he was told not to divulge his connection to Whitney in this ploy. Sounds like fraud to me. Also sounds like it would not be covered by attorney-client privilege. This also applies to misleading a court. In short attorney-client privilege is not absolute. As you can see above, acting like a jerk, among other things, can waive or defeat it. Spousal privilege I suspect the Whitney crowd also thinks Mrs. Yates won"t want to say anything and will invoke spousal privilege. I don"t know if she or her husband will do that. Spousal privilege is not mandatory, you know. They can waive it. Also, Yates and his wife have no spousal privilege for before they were married on May 6, 2004. She was apparently involved in activities directed at me before that. But she was not employed by Russ Whitney or his company as far as I know. She worked for another law firm unrelated to Whitney if my information is correct. As with attorney-client privilege, spousal privilege only relates to confidential communications between only the husband and wife. Communications between, say, a husband and wife and one of their parents, are not covered by spousal privilege. One purpose of privilege is to suppress the truth. That' Russ Whitney' need. Seems to me it is in the interests of Whitney' various opponents to invoke privilege as little as possible and to prevent Whitney from invoking it as often as possible. John T. Reed Copyright 2005 by John T. Reed John T. Reed, a.k.a. John Reed, Jack Reed, 342 Bryan Drive, Alamo, CA 94507, Voice: 925-820-7262, Fax: 925-820-1259, www.johntreed.com

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