Terence Dougherty — Direct/Cross
1,035 linesCOURT BAILIFF: All rise.
COURT BAILIFF: Please be seated and come to order.
THE COURT: All right. Good morning. All right. Do we have any preliminary matters before we bring the jury out?
MS. BREDEHOFT: No, Your Honor.
THE COURT: Okay. Good.
MS. BREDEHOFT: Actually, Your Honor, I do. I have an exhibit I need to hand up.
THE COURT: Okay. That's fine.
MS. BREDEHOFT: It's the one from yesterday, it's Defendant's 1246.
MS. BREDEHOFT: Yes. It's redacted.
THE COURT: All right. Thank you.
THE COURT: Okay. You can get the jury.
THE COURT: All right. Good morning, ladies and gentlemen. All right Your next witness.
MR. CHEW: Good morning, Your Honor, ladies and gentlemen. Mr. Depp calls Terence Dougherty, D-O-U-G-H-E-R-T-Y.
THE COURT: And, for the first part of the deposition, it will be Mr. Depp's counsel asking the questions, and then it will change and we'll let you know. Thank you.
MS. BREDEHOFT: Your Honor, we have a video. Do you want to try ours?
THE COURT: I think I heard the sound, so I think it's okay.
TERENCE DOUGHERTY: Terence Dougherty.
TERENCE DOUGHERTY: 360 Riverside Drive, New York, New York. 10025. I went to Oberlin College. I got a BA there, and with majors in history and in English, and I studied Viola da Gamba performance at the Oberlin Conservatory. I then spent - took four years - four years after I graduated, I went to Columbia Law School.
MR. CHEW: And what did you do in the four years between your graduation from your Oberlin -- from Oberlin and going to law school?
TERENCE DOUGHERTY: I was a kindergarten teacher in the South Bronx at a homeless shelter for a few years, then I did freelance editing work for an academic press called Routledge, and, simultaneously, was the writer, research assistant to feminist cultural critic Bell Hooks.
TERENCE DOUGHERTY: Columbia.
TERENCE DOUGHERTY: I did.
MR. CHEW: Having received a JD from Columbia, I take it you know what a statute of limitations is; is that correct?
TERENCE DOUGHERTY: Correct.
MR. CHEW: After receiving your JD from Columbia, what did you do, in terms of your professional life?
TERENCE DOUGHERTY: I worked at Fried, Frank, Harris, Shriver & Jacobson, for about four years, three and a half, four years. I was in their tax department. And after that, I went to work at Patterson Belknap. And I was also in the tax department there, but worked on, primarily, with their exempt-organization clients. Patterson has a large exempt-organization client practice.
MR. CHEW: Is it fair to say that you worked for Mr. Schwartz's firm, Patterson Belknap, from about 2002 to about 2005?
TERENCE DOUGHERTY: That's exactly right.
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Correct, correct.
MR. CHEW: Was there any time, between 2005 and today, where Patterson Belknap ceased to be a client of the ACLU?
TERENCE DOUGHERTY: No. You mean where the ACLU ceased to be a client of Patterson, right?
TERENCE DOUGHERTY: Yeah, no, we've been a client the whole time. Not always with active matters, of course, but a client the whole time.
TERENCE DOUGHERTY: I was ACLU's first in-house lawyer. My title was senior corporate counsel.
MR. CHEW: What were your responsibilities, generally, when you began as senior corporate counsel at the ACLU Foundation?
TERENCE DOUGHERTY: My role was to serve as the organization's in-house lawyer and to assess what the needs were for an in-house counsel department or practice at the ACLU.
MR. CHEW: And I take it you have continued to work as a lawyer at the ACLU, on an uninterrupted basis, from 2005 to the current day?
TERENCE DOUGHERTY: Correct. My title changed relatively soon after 2005; in either 2006 or early 2007, my title was changed to general counsel.
TERENCE DOUGHERTY: It's part of my title. I'm general counsel, and I'm also chief operating officer.
TERENCE DOUGHERTY: I report to Anthony Romero, the executive director, chief executive officer.
TERENCE DOUGHERTY: Direct report.
MR. CHEW: Sitting here today, do you know how much money Ms. Heard has actually donated to the ACLU, actually remitted to the ACLU?
TERENCE DOUGHERTY: Yes, I do.
TERENCE DOUGHERTY: So, when you say "remitted," do you mean direct payments from her, personally, or do you mean something -- payments on her behalf, or payments, you know, from a donor-advised fund that she might have set up?
TERENCE DOUGHERTY: That would be $350,000 paid directly.
TERENCE DOUGHERTY: There was $100,000, which was a check from Johnny Depp; there was a 5,000 -- $500,000 payment from a donor-advised fund at Vanguard; and then there was a $350,000 payment that appears to be from a donor-advised fund at Fidelity, making a total $1.2 million.
TERENCE DOUGHERTY: So -- and I think I might have done the math wrong. Let me just do the math in my head, 700, 800, plus the five. I think 1.3 is the amount.
TERENCE DOUGHERTY: So, we received a check from -- for the $100,000 payment, we received a check from Johnny Depp's representatives, and it was said to be a payment in connection with -- on behalf of Amber Heard. She confirmed that.
TERENCE DOUGHERTY: The $500,000 payment from Vanguard Charitable, she confirmed was a payment in connect -- on her behalf. And the $350,000 payment as well.
TERENCE DOUGHERTY: Well, she had -- when we initially had contact with Amber Heard in 2016, she indicated her desire to pay $3.5 million to the ACLU, and that was -- and these were amounts that were in relation to that -- her having expressed that that's what she wanted to pay to the ACLU.
MR. CHEW: So it's fair to say that she has not donated $3.5 million, as of today, to the ACLU, 31: .3 true?
MR. CHEW: I True. When you say that Mr. Depp, our client, donated $100,000 to be credited toward Amber Heard, did the ACLU, in fact, credit that $100,000 ! toward the $3.5 million Ms. Heard promised to donate to the ACLU?
TERENCE DOUGHERTY: We do credit it.
TERENCE DOUGHERTY: We asked Ms. Heard if we should credit it, and she said that we should.
TERENCE DOUGHERTY: So, Vanguard Charitable is a nonprofit that Vanguard, the financial institution, has set up that allows provides for a wide variety of donor-advised funds for individuals to use for their charitable giving So there are many many there are thousands of Vanguard Charitable donor-advised funds If you are asking specifically about the one that we received the $500,000 contribution from, we believe that that is a donor-advised fund that was set up by Elon Musk.
TERENCE DOUGHERTY: He's a tech entrepreneur.
TERENCE DOUGHERTY: Yes.
MR. CHEW: But it's your testimony that as to the $500,000 that came from Vanguard Charitable, that that was associated with Elon Musk, correct?
TERENCE DOUGHERTY: We don't -- we believe so. But it is not conclusive.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: There is a document that we produced that Elon Musk emailed Anthony Romero regarding the 500000 contribution
MR. CHEW: What did Ms. Heard tell Mr. Romero or the ACLU about her donation and how much she was going to contribute?
TERENCE DOUGHERTY: There were communications back and forth between the ACLU and Ms. Heard, including a thank-you acknowledgment letter that was sent under Mr. Romero's name to Ms. Heard, thanking her for the $350,000 contribution, noting that it was part of her intention to make a $3.5 million contribution to the ACLU, and Mr. Romero attached, to that communication, a standard ACLU pledge form that -- so that was the communication.
TERENCE DOUGHERTY: We were aware, very early on, that the -- her intention to contribute the $3.5 million to us was half of her $7 million divorce proceedings. I'm not -- I don't recall which specific communication with us gave us that knowledge.
MR. CHEW: What if any understanding did the ACLU have prior to the publication of the op-ed about Ms. Heard's plans to dispose of the other half of the 7 million settlement or the other 3.5 million
TERENCE DOUGHERTY: Yes, we understood that the other $3.5 million, the other half, was going to a Children's Hospital in Los Angeles.
TERENCE DOUGHERTY: It was very soon after the communication between Elon Musk and Anthony, and I believe that it was -- that communication was in August of 2016, and it was shortly thereafter.
TERENCE DOUGHERTY: I asked Ms. Weitz whether it was her decision to ask Ms. Heard to be an ACLU ambassador, and she indicated that it was. I asked Ms. Weitz to describe what are the criteria for -- sorry, a calendar thing popped up. What are the criteria for asking -- for becoming an ACLU ambassador. Yes, and what were the reasons why she thought that Ms. Heard would be an appropriate ACLU ambassador.
TERENCE DOUGHERTY: She said that ACLU ambassadors are people who are artists or influencers that are aligned with one or two ACLU policy issues, and the criteria for determining whether somebody can be an ambassador is that they have prior expertise in that policy area; that they can speak in detail about the area; that they're aligned with the ACLU's policy views of the area; and that they have significant following so that their communications to the public that need support I are - reach a wide variety of people.
TERENCE DOUGHERTY: I don't think there's any that she - she did not identify any as the most important.
MR. CHEW: What, if anything, did Ms. Weitz tell you about Ms. Heard's expertise in women's rights?
TERENCE DOUGHERTY: Ms. Weitz said that she had a meeting - arranged a meeting between Ms. Heard and representatives of our women's rights project and our reproductive freedom project, and Ms. Heard spoke with such clarity and expertise on issues of gender-based violence that she decided that she would be an appropriate person to ask to become an ACLU ambassador, and she did so.
TERENCE DOUGHERTY: Ms. Heard -- Ms. Weitz said that she looked at Ms. Heard's social media.
MR. CHEW: No. Not that she said to me. All right. Let's look to topic 6. What, if anything, did you do to prepare to testify about your role, the ACLU's role in the conception, preparation, drafting and/or publication of the op-ed?
TERENCE DOUGHERTY: I reviewed the documents that we produced. I had three meetings with our lawyers. I spoke with Ms. Weitz and Mr. Romero.
TERENCE DOUGHERTY: I asked Ms. Weitz whether she was involved and what her involvement was, with respect to the conception, preparation, drafting and/or publication of the op-ed, and she indicated that because of her role as our director of artistic engagement, she was involved in all aspects of the conception, preparation, drafting, and publication, and that the other members of the communications department, who worked on this, even though they didn't necessarily report to her, in terms of our hierarchy, they reported to her in terms of this specific task. She was the person who was - who was the director of this project.
TERENCE DOUGHERTY: She was in - she -yes, yes. Yes.
MR. CHEW: Other than Ms. Weitz, were there any other lawyers at the ACLU involved in the drafting of the op-ed?
TERENCE DOUGHERTY: Ms. Weitz is not a lawyer. So, were there were there lawyers involved in the in the drafting of the op-ed? I believe it was the drafting of the op-ed was all done within the communications department.
TERENCE DOUGHERTY: I don't know her academic background.
MR. CHEW: Was any ACLU lawyer, and I mean :5 in-house lawyer, involved in the drafting of the op-ed?
TERENCE DOUGHERTY: I believe the answer is yes. I believe that there are documents that support back-and-forths between support for the op-ed, but I don't recall. I don't recall.
MR. CHEW: Sitting here today, do you know how many ACLU lawyers were involved in the drafting of the op-ed?
TERENCE DOUGHERTY: No, I don't.
MR. CHEW: Were there any ACLU lawyers involved in the reviewing of the op-ed before it was submitted to the Washington Post?
TERENCE DOUGHERTY: Yes, there were.
TERENCE DOUGHERTY: I think there were four.
TERENCE DOUGHERTY: No, I was not one of the four. And to be clear, when you were -- what I was referring to were people in our legal department who are experts on women's rights issues. I was -- there was nobody from -- neither I nor anybody from the in-house counsel team was involved in the drafting of the op-ed or the review of the op-ed.
TERENCE DOUGHERTY: We were not involved. We were not brought into the loop. I don't know why.
MR. CHEW: Is it fair to say that the ACLU didn't think there was any -- there were any potential legal implications to the ACLU involved in the publication of the op-ed?
TERENCE DOUGHERTY: I have not spoken with any of the lawyers in the legal department about whether they thought it would be, you know, would be necessary to involve any member of my in-house counsel team in the review of the op-ed.
MR. CHEW: Who were the four attorneys, in-house at the ACLU, who were involved in reviewing the op-ed before it was submitted to the Washington Post?
TERENCE DOUGHERTY: Okay. So I was referring to the people in the legal department, not the in-house counsel's office. The legal department who do our work, our civil liberties litigation and advising on legal issues relating to civil liberties.
TERENCE DOUGHERTY: And I believe that the op-ed, before, it was reviewed by Lenora Lapidus, David Cole, I believe Louise Melling was involved, and there may have also been a fellow that was involved in reviewing it. These are all -- there are a number of back-and-forth emails that we produced that will indicate, specifically, who those people were.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: These are conversations within the ACLU communications department about Ms. Heard's donations to the ACLU and the possible engagement of that issue as a communications matter for the ACLU.
MR. CHEW: Mr. Dougherty, if we could start in the email in the middle of the first page of Exhibit 2.
TERENCE DOUGHERTY: The middle of the first page?
TERENCE DOUGHERTY: Okay. Go ahead.
TERENCE DOUGHERTY: Stacy Sullivan was a senior person in our communications department.
TERENCE DOUGHERTY: I don't recall the date.
TERENCE DOUGHERTY: Stephen Smith, at the time, was our associate director for strategic communications. Now he is the deputy communications director.
MR. CHEW: And I believe you testified earlier that Mr. Romero came -- first came to learn about this through Elon Musk; is that right?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: It's an email account that is monitored by members of the communications staff, so that when media inquiries come in, rather than them going to a specific individual in the communications department, who could be working on something else or on leave, it goes to a central email account that is, then, monitored and direct -- and emails within it are directed to the appropriate people.
TERENCE DOUGHERTY: I assume that is Sandra Park, who is a lawyer in our women's rights project.
MR. CHEW: Was she, was Ms. Park involved in the op-ed in any way, either reviewing or approving?
TERENCE DOUGHERTY: I believe she was.
TERENCE DOUGHERTY: Yes.
MR. CHEW: And the press coverage, among other things, enabled the ACLU to promote its work helping victims of domestic violence, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: We record donations in our donor database. It's referred, in the trade, as a "CRM" a constituent record management system. And, at this time, we are -- our CRM was a company called PIDI. At this point, our CRM is with Salesforce.
TERENCE DOUGHERTY: There are many members of our development department that interact with -- interacted with PIDI with respect to the functioning support of that system and the vendor relationship. And then, and I'm not sure if you're asking me this, but then there are a number of people in the development department who can input donor information into this database. I don't see them as having interaction with PIDI, but it's with our database.
TERENCE DOUGHERTY: It's very broad. The names, address, contact information, donations, prior history with donations, issues that they are particularly interested in. It also differs depending on the nature of the donor. If somebody gives a $50 annual donation, that is recorded. If somebody is a $3 million a year donor to the ACLU, a different level of information is reported in this system -- recorded in the system.
MR. CHEW: If someone makes a donation on behalf of another person or to be credited to another person, how is that recorded by the ACLU?
TERENCE DOUGHERTY: It is recorded as -- it is recorded as such, as relating to. But there's many different ways that that could -- somebody could give on behalf of somebody else. People could make a gift in honor _of somebody else. People could make a gift in order to fill someone else's pledge. People can make a gift, you know, a donor may help bring another donor to the ACLU. All of that 3 1 information is recorded in our systems.
TERENCE DOUGHERTY: Absolutely.
MR. CHEW: After Ms. Heard announced her donation to the ACLU, what, specifically, did the ACLU do to document that donation?
TERENCE DOUGHERTY: Well, we sent out a note to Amber thanking her for the donation. That is, likely, the contribution acknowledgment letter that Mimi is referring to, and that information is kept in our files. And the information regarding Ms. Heard was recorded in our Salesforce - or, at the time, PIDI database.
MR. CHEW: At the time that ACLU sent Ms. Heard the acknowledgment letter, was it the ACLU's expectation that the $3.5 million be paid by Ms. Heard all at once, in a lump sum?
TERENCE DOUGHERTY: No. I do not believe it was. I believe that we believed that it would - based on the - based on the Elon Musk email, we thought that it might be - that it was intended to be over a ten-year period, although, that was never specifically confirmed.
TERENCE DOUGHERTY: I believe that the first email from Elon Musk to Anthony Romero said that it was over a ten-year period.
MR. CHEW: Anything else to make the ACLU believe that Ms. Heard was not paying the money right away out of her divorce settlement with Mr. Depp?
TERENCE DOUGHERTY: Anthony, in his communications with Ms. Heard, referred to the amount as a pledge. And a pledge is generally -- what a pledge means is that the amount is not necessarily paid all at once, it's pledged to the organization. Rather than just sending a check, there's a -- some kind of varying levels of commitment made to give amounts over a period of time, which is, excuse me, useful for the charity to know so that it can make future projections as to income.
MR. CHEW: Mr. Dougherty, who, if anyone, at the ACLU was assigned to handle or track Ms. Heard's 59 ---------- ------------3-l-61-- donation?
TERENCE DOUGHERTY: That would have been two different people, depending on what you mean by "track."
TERENCE DOUGHERTY: There is a person in our leadership gifts department, which is the department that deals with high-level donors, his name is Jon Maresco, and his role is to, in addition to facilitating, maintaining the relationship with those donors, is to oversee the back-and-forth with those donors for annual giving. So, in this case, that would include Ms. Heard's gifts to the ACLU. And then there's a second group within the development department that is the team that maintains the overall donor database, the then-PIDI, now Salesforce, database.
TERENCE DOUGHERTY: It's not back up on the screen yet. Okay. Here it is. Yes, it was.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Were these emails, to your knowledge, prepared contemporaneously with people having knowledge of the contents?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Okay. I see it.
TERENCE DOUGHERTY: I have.
MR. CHEW: Is this one of the documents that you reviewed in preparation for your deposition today?
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: It was prepared by someone in our development department, who I believed to be Mimi Clara. But, yes, to the rest of your question.
TERENCE DOUGHERTY: Yes.
MR. CHEW: So he states to Ms. Heard, "Thank you for your wonderful gift of $350,000 to the ACLU, the first installment of your very generous pledge of 3.5 million."
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Correct.
MR. CHEW: Now, if you would, please, tum to the next page. I believe you referred to this before, but if you could just clear it up for the record.
MR. CHEW: Have you ever seen this page before? And it's called "Pledge Form," Bates number ACLU 3033.
TERENCE DOUGHERTY: Yes, I have.
TERENCE DOUGHERTY: This is a document that is used - well, in - the generic document is one that is used regularly by the development department. This one, in particular, is branded in connection with our 100th year anniversary, but that's just a branding thing.
TERENCE DOUGHERTY: What the form is, is a form for people ! who are making pledges to the ACLU, to document that promise in the - in a form like this. When a form like this is filled out, we see that as a - that documents the full amount that they intend to contribute and the time period over which those gifts are going to be made.
MR. CHEW: And is it your understanding, sir, that these -- this pledge form and the two documents after, ACLU 3034 and 3035, were, in fact, attached to a letter Mr. Romero sent Ms. Heard on September 9th, 2016?
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: I believe that - well, it was somebody in our development department. I don't know whether it was Mimi Clara or Jon Maresco, or someone else, but it was somebody who was preparing it in connection with the preparation of the tax acknowledgment letter.
MR. CHEW: There's a reference on top of the pledge form, "Amber Heard, care of Pierce O'Donnell, Greenberg Glusker," and then there's some other names. Do you know what the firm Greenberg Glusker had to do with Amber Heard?
MR. CHEW: And you have no idea why it was sent to Ms. Heard, care of Mr. O'Donnell, at Greenberg Glusker?
TERENCE DOUGHERTY: I expect that it is the case that - many of our significant donors have representatives that we work directly with on technical things, such as a pledge form.
MR. CHEW: Okay. And directing your attention to the next page that was attached to Mr. Romero's letter. It also says "Pledge Form," but it has some columns.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Is it fair to say that this is a proposed schedule for payment of the remaining $3.5 million donation?
TERENCE DOUGHERTY: That is what it is.
TERENCE DOUGHERTY: I don't know who prepared this form, and don't know who told the person who prepared this form to do the gift payment schedule in this way.
MR. CHEW: Do you see, at the bottom of that page, ACLU 3034, part of Exhibit 11, that there is a signature line?
TERENCE DOUGHERTY: Correct. Yes, I do.
MR. CHEW: Did anyone at Greenberg Glusker, or anybody else on behalf of Ms. Heard, ever sign this form?
TERENCE DOUGHERTY: I don't know the answer.
MR. CHEW: Did Ms. Heard ever agree to any schedule for the payment of her $3.5 million donation?
TERENCE DOUGHERTY: There are documents that we produced that point to Ms. Heard being aware of this as a multi-year commitment, including the Elon Musk email to Anthony, and back-and-forth between Anthony and Amber, on an annual basis, about her- about this gift.
MR. CHEW: My question is actually a simple one. Did Ms. Heard ever agree to any schedule for the payment of the remainder of the $3.5 million donation?
TERENCE DOUGHERTY: I don't recall her having seen anything where she agreed to a ten-year schedule like this.
TERENCE DOUGHERTY: !have.
TERENCE DOUGHERTY: This is an email exchange that includes Anthony Romero, our director of development, Mark Wier, the executive director of our Southern California affiliate, which encompasses LA, and me, regarding the check that we received from Johnny Depp's representatives in the amount of $100,000.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Were these emails prepared I contemporaneously by people having knowledge of the contents?
TERENCE DOUGHERTY: Yes.
MR. CHEW: Okay. Let's move, please, to the Is second page of the exhibit, the email from Hector Villagra, to Anthony Romero, dated August 25, 2015, at 12:44 p.m.
TERENCE DOUGHERTY: At the bottom of the page. 12:44, yeah. Uh-huh.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Hector is the executive director of the ACLU of Southern California.
MR. CHEW: And you see where he informs Mr. Romero, "The actual check is from Mr. Depp, care of his CPA, and handwritten on the check it says 'Donation being made in the name of Amber Heard." So I think you've testified that the ACLU, in fact, received a $100,000 check from Johnny Depp, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: No, I don't.
MR. CHEW: Mr. Villagra tells Mr. Romero that he has been designated -- or that he has been the point person.
TERENCE DOUGHERTY: Hold on. Let me just find that.
TERENCE DOUGHERTY: Oh, okay. "My staff let me know that you have been the point person."
TERENCE DOUGHERTY: Yeah, Hector is saying Anthony is the main person with the relationship with Amber as a donor.
TERENCE DOUGHERTY: Mr. Romero is our - one of our most significant fundraisers at the organization, and he has a specific portfolio of donors that he and his team, such as Jon Maresco, support.
MR. CHEW: And do you see, going back to the second page of the exhibit, Mr. Romero's response to Mr. Villagra, copied to Mark Wier, that same I did or -- strike that.
TERENCE DOUGHERTY: I do.
MR. CHEW: Now, let's move back to the first page. And do you see the email from Mark Wier to Hector Villagra, copied to Mimi Clara, on or about August 25th, at 11:12 a.m?
TERENCE DOUGHERTY: Yes.
MR. CHEW: "Just spoke with Anthony, who just got off the phone with Elon Musk." And "Anthony" refers to Anthony Romero, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: My understanding is that Anthony reached out to Elon Musk because he had a prior relationship with Elon Musk and Elon Musk was the person who first contacted Anthony about the donation -- about a donation from Amber.
MR. CHEW: And wasn't Mr. Romero specifically asking about Mr. Depp's donation of a hundred thousand dollars?
TERENCE DOUGHERTY: That's how I read this email, yes.
MR. CHEW: And if you look down, just below that, the email from Mr. Villagra to Mark Wier. And he said, "Got it. We will hold the check."
TERENCE DOUGHERTY: That's how I read this.
MR. CHEW: Okay. So, now, moving back up to that email from Mr. Wier to Mr. Villagra, copied to Mimi Clara, he says, "We're going to draft an email from Anthony, to Amber, explaining the situation and asking for her advice."
TERENCE DOUGHERTY: I take that to mean that we wanted to hear from Amber regarding whether this gift was attributable to the amount that she wanted to contribute to the ACLU.
TERENCE DOUGHERTY: Yes. There are documents that we ls produced that show a back-and-forth on that point, between Anthony and Ms. Heard.
MR. CHEW: And Mr. Wier -- or Mr. Wier writes, "I'll keep you in the loop, but definitely hold the check until we get clearance from Amber."
MR. CHEW: Why would the ACLU need clearance from Amber Heard before it accepted a $100,000 donation from Johnny Depp?
TERENCE DOUGHERTY: My understanding of this is that we would have - that we wanted to know whether this - before we cashed this check, whether it was in relation to the Amber Heard desire to contribute to the ACLU as opposed to a separate desire by Johnny Depp to contribute to us individually. And, in fact, the communication from Johnny Depp's representative said it was in connection with Amber Heard, so we wanted to clarify what was going on.
MR. CHEW: So moving to the email directly above that, from Hector Villagra to Mark Wier, he says, "We have more folks than I knew who followed TMZ. Here's the latest report: Amber Heard calls BS on Johnny's charity donation. Now you owe double."
TERENCE DOUGHERTY: I don't really know specifically, other than to say that this is more indication that we were unclear of whether this - the Johnny Depp gift would count toward the amounts that Amber said she wanted to contribute to the ACLU.
MR. CHEW: And, then, directing your attention to the top email in Exhibit 10. Mr. Wier responds, "She's calling Johnny out on the $14 million in the press."
TERENCE DOUGHERTY: I don't know. I don't know. I'm not aware of how 14 million plays into any of this.
TERENCE DOUGHERTY: Just making it larger. Yes, I have. please.
TERENCE DOUGHERTY: This is Amber confirming that we can - that we can cash Mr. Depp's check.
TERENCE DOUGHERTY: Yes.
MR. CHEW: And is this a document that was created ordinary -- was maintained in the ordinary course of the ACLUs business?
TERENCE DOUGHERTY: Yes.
MR. CHEW: And it's true that the ACLU, ultimately, deposited Mr. Depp's check for $100,000, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: We do credit that hundred thousand PLANE dollars amount towards Amber Heard's charitable giving to the ACLU.
TERENCE DOUGHERTY: There are documents that we produced that show the fact that this was considered part of Amber Heard's charitable giving to the ACLU.
MR. CHEW: And after the ACLU received Ms. Beard's l initial $350,000 payment, it received press inquiries about the Heard donation, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Oh, I don't know the specific number; sorry.
MR. CHEW: Was this document, Exhibit 20, maintained in the ordinary course of the ACLUs business?
TERENCE DOUGHERTY: Yes.
MR. CHEW: Was it prepared in the ordinary course of the ACLUs business contemporaneously by people 121 having knowledge of the contents? ,22
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: I ACLU ambassador?
TERENCE DOUGHERTY: It was in October of 2018.
MR. CHEW: Okay. Let's move ahead, please, to On what date was Ms. Heard appointed an Exhibit 22.
TERENCE DOUGHERTY: I don't believe we ever issued a press release, in 2017, regarding Amber Heard's donation to the ACLU.
TERENCE DOUGHERTY: There -- we received an email from Amber, that is in the documents, that says, that we -- says that we don't need to do this. We shouldn't do this, this press release.
MR. CHEW: Let's go to Exhibit 24, please. AV TECHNICIAN: Stand by. Mr. Dougherty, have you ever seen this I document, Exhibit 24, before?
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: This is Anthony, in his email to -- the same one we just saw, said that his comms people are going to be reaching out to Amber's people. So Steve, then, starts that process and Amber then -- he -- then Amber responds and says that she's no longer working with Pierce and introduces Steve to her new lawyer, Eric George. And she indicates that she has a concern about issuing a press statement.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Do you see the email at the top of the page from Ms. Heard to Jodi Gottlieb and others, dated July 6th, 2017?
TERENCE DOUGHERTY: I do.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: This is Amber letting Steve know that she's no longer working with Pierce, but, instead, working with a new lawyer. And indicating to Steve that she's going to be talking with her PR team about whether - about issuing a press statement about her 2017 - issuing a press statement about her 2017 gift.
MR. CHEW: And directing your attention, she writes, "Their concern is that the press could potentially spin the fact that this is an installment and not the entire lump sum, as you well know isn't possible, due to the structure of the settlement agreement."
MR. CHEW: The settlement agreement is a reference to the settlement agreement between Johnny Depp and Amber Heard in their divorce, correct?
TERENCE DOUGHERTY: I read that to - the reference to the p settlement agreement, to be the settlement agreement between her and Depp. But I don't have any independent knowledge of that.
TERENCE DOUGHERTY: The original communications and her response to us when we reached out to her and she indicated, you know, on a number of occasions, that this was something that she was going to be taking -- she was going to be looking into.
TERENCE DOUGHERTY: What we did receive was the $500,000 Vanguard Charitable contribution, and, then, the next year, the $350,000 contribution.
TERENCE DOUGHERTY: Yes, we didn't receive any amounts from 2019 and on.
MR. CHEW: Let's move up to the middle email on the page. Mr. Wier to Steve Smith. "Thanks, Steve. Her gift is technically unrestricted, but" it is weighted towards women's rights issues.
TERENCE DOUGHERTY: What that means is that there's a particular type of gift that is legally restricted !s for a specific purpose. And that could be - the restriction could be done in a number of ways. That was not done in this situation, but, .8 nonetheless, the intention in making gifts to the ACLU was to support that work.
TERENCE DOUGHERTY: So there's that subtle distinction, and this is not an uncommon one at the ACLU.
MR. CHEW: After the Vanguard payment of 500,000 in July of 2017, what, if any, payments did Ms. Heard make to the ACLU?
TERENCE DOUGHERTY: There was one more payment of $350,000 that came from Fidelity Charitable, so it looked to be from a donor-advised fund from Fidelity.
TERENCE DOUGHERTY: In 2018.
TERENCE DOUGHERTY: Go ahead, sorry.
TERENCE DOUGHERTY: Oh, we have a document that we produced that shows the contributions that we received from Fidelity Charitable and the timing for each of those, one of which includes a - includes the Amber Heard 350.
AV TECHNICIAN: Yes, sir. Stand by.
MS. BREDEHOFT: Hold on. Can we get the Bates stamp number, please?
MS. BREDEHOFT: Thank you.
TERENCE DOUGHERTY: Yes.
MR. CHEW: There appears to be a reference -- first of all, have you ever seen this document before?
TERENCE DOUGHERTY: I have.
TERENCE DOUGHERTY: This is a document that we created that lists the contributions made to the ACLU on a specific date, December 11, 2018, that came from the online at Fidelity Charitable account.
TERENCE DOUGHERTY: The information in this is maintained in the ordinary course of this business. We created this document in response to the discovery requests.
MR. CHEW: And does it truthfully and accurately reflect the donations made to the ACLU online, on or about December 11th, 2018?
TERENCE DOUGHERTY: I believe that it does. It is a department pulled information from Salesforce, our document that, I believe, our development current CRM, into an Excel, and that's what this is.
MR. CHEW: So directing your attention to the penultimate entry on this page, it says "$350,000 designation: Donation from Amber Heard."
TERENCE DOUGHERTY: Uh-huh.
TERENCE DOUGHERTY: What that refers to is that, since the giving account are the names of the Fidelity Charitable donor-advised funds, which is the column in the right, this one is designated as anonymous, meaning that the person who set up the donor-advised funds, in this case, I believe, Amber, wanted it to be an anonymous donor-advised funds. So that would be within her discretion to decide which gifts were -- that she recommended were her recommendations or not. And so, we put into this special purpose category, we marked that this was a donation from Amber Heard, meaning a 119 recommendation from her to make that contribution from her donor-advised funds.
TERENCE DOUGHERTY: It is anonymous to -- this is -- when this donor-advised fund was set up, it was determined that it would be -- that the gifts would presumptively be anonymous, unless she were to recommend -- to state otherwise.
TERENCE DOUGHERTY: We were -- we believed that this was -- s that she indicated that this was her $350,000 gift, and that's why we put into the column that 110 this was a donation recommended by her, from her donor-advised fund.
TERENCE DOUGHERTY: The money went from her to her donor-advised fund, and then she recommended that the funds be paid from Fidelity to us. So, the amount of 350 we received did not come from her directly, it came from what we believed to be her donor-advised fund at Fidelity that she set up.
MR. CHEW: What basis, other than Ms. Heard telling you, does the ACLU have for the proposition that Ms. Heard paid the money to Fidelity before it came and was given to the ACLU?
TERENCE DOUGHERTY: The - what we have is what she told us, which is how this - how donor-advised funds that are anonymous work. The only amount - the only thing that we legally needed to know was that this came from the Fidelity Charitable, and that's the kind of recording that we would do on this, for example, if we were reporting on this gift in our tax filings or anything like that. We then - our donors who have donor-advised funds, they, then, let us know that they made that recommendation, and we, then, credit it to them as being associated with their giving to us in our CRM.
MR. CHEW: Well, Mr. Dougherty, I didn't ask you what the ACLU is legally required to do. I asked you, what, if anything, the ACLU did to investigate whether, in fact, Ms. Heard provided the funds to Fidelity. And your answer is nothing, right?
TERENCE DOUGHERTY: I don't - I don't, I don't believe there's anything else. I don't know what else we would have gotten.
MR. CHEW: So, just so the record is clear, the ACLU relied only on Ms. Heard, that she was the ultimate source of the Fidelity funds, correct?
TERENCE DOUGHERTY: Yes.
MR. CHEW: Because you've already testified that Ms. Heard was not the original source of the funds for the $500,000 Vanguard contribution, correct?
TERENCE DOUGHERTY: We received that $500,000 from Vanguard, their 501(c)(3), not from any other person.
TERENCE DOUGHERTY: We believe that to be the case, yes.
MR. CHEW: Okay. So after this December 2018 donation, has Ms. Heard made any donations, directly or indirectly, to the ACLU?
TERENCE DOUGHERTY: No. Those are the four contributions, the one that we - four that we've discussed.
MR. CHEW: Well, we're almost three years since her last contribution. What, if any, efforts has the ACLU made to get Amber Heard to pay?
TERENCE DOUGHERTY: We reached out to -- we reached out to Ms. Heard, starting in 2019, for the next installment of her giving, and we learned that she was having financial difficulties.
MR. CHEW: So, when, in 2019, did the ACLU reach out to Ms. Heard about making her promised contributions?
TERENCE DOUGHERTY: I don't recall the date, but there is a document that we produced that was an email from Anthony to Amber about this, in 2019.
TERENCE DOUGHERTY: Yes. I've seen these.
TERENCE DOUGHERTY: Sure.
TERENCE DOUGHERTY: Uh-huh.
TERENCE DOUGHERTY: I believe this is - this tracks with the Excel spreadsheet that we looked at, just a ,6 few moments ago, that talks about online giving through the Fidelity Charitable funds, and the - whereas, the prior one listed all of the December 11, 2018 gifts, this one lists the $300,000 gift from - that - from Amber's donor-advised funds.
MR. CHEW: And moving to the next page, it says "Designation: Donation from Amber Heard." Do you see that?
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: So this was the column in Salesforce that allows us to include additional information about gifts; in particular, whether they were restricted in a certain way. And so, that's why the term "designation" is used. And here, I think we filled into the designation field the information that we knew to be the case, which was that this was a recommendation from Amber Heard's donor-advised fund.
MR. CHEW: Okay. Now, if you move to the next page, 4675, there's just one word on that, and it's "anonymous."
TERENCE DOUGHERTY: This corresponds to the column of that same spreadsheet that listed the names of the donor-advised funds that individuals set up at Fidelity and that the name of the Amber one was anonymous.
MR. CHEW: Now, when Ms. Heard made her direct payment, her first contribution of $350,000, that was not designated as anonymous, was it?
TERENCE DOUGHERTY: That was not a gift from a donor-advised funds, so there weren't those columns for us to fill out. It was just a gift to the ACLU. And I do believe that in Anthony's acknowledgment letter to that, that included the pledge form that wasn't signed, he included a question about anonymity and whether we can list her as a donor in our annual report. So that was our first connection with her, so we weren't sure whether her giving would be anonymous or not.
TERENCE DOUGHERTY: No. Because we - no, it was not anonymous. But what I'm saying here is that this is - this is the name - I believe this is the name of her donor-advised fund at Fidelity. The first time she gave us a gift, I think it came right out of her own, you know, her own banking account.
MR. CHEW: Right. And between the time Ms. Heard made her first donation of $350,000 directly, which is attributed directly to her, and the time this anonymous donation comes in, did anybody at the ACLU have any discussion with Ms. Heard as to whether she wanted anonymity?
TERENCE DOUGHERTY: I don't believe she did. I don't believe she did.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: This is the document that Vanguard Charitable, so Vanguard's 501(c)(3), nonprofit, uses when someone makes a recommendation from a Vanguard Charitable donor-advised funds to give an amount to a charity. And they, then, send this letter saying that they, Vanguard, are giving this amount to the charity. And it describes whether -- this is the document that would describe whether or not the donor wants to be anonymous or even wants to indicate to us who they are.
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: I have.
MR. CHEW: Arid is this one of the documents that I 5 you reviewed in the context of preparing for this deposition?
TERENCE DOUGHERTY: Yes.
MR. CHEW: And directing your attention to the middle of the page, it says "remark from Amber po Heard." What does that signify?
TERENCE DOUGHERTY: I'm sorry, I'm counting to three seconds. This is a record of a wire into our accounts at JPMorgan Chase, in the amount of $350,000, from Amber Heard's account at City National Bank.
TERENCE DOUGHERTY: Yes, this is the 2016 August contribution.
MR. CHEW: Okay. If you could move ahead, please, to the next page, ACLU 4680. Have you ever seen this document before?
TERENCE DOUGHERTY: I have.
TERENCE DOUGHERTY: This is the original email, from Elon, to Amber and Anthony, describing her plan to donate to the ACLU over the next ten years, and her support for our work, and that she wasn't restricting the gift, she just had a preference about the use of the funds, and that Anthony would forward her the wiring instructions. And then he did so. And then the 350 was wired, as we saw in that last JPMorgan Chase ACLU bank account wire record. And, so, Anthony let Amber know that we received it, yes.
MR. CHEW: So the email in the middle of the page was an email sent to Mr. Romero from Elon Musk, on or about August 18th, 2016, at 1:14 p.m., correct?
TERENCE DOUGHERTY: Correct.
MR. CHEW: It says Amber, I described your plan to donate 3.5 million to the ACLU over the next ten years, as you very much believe in what they are doing.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: I don't know the answer to that question. But I assume it's because of Elon's prior to relationship with Anthony and that he indicated "I will make that introduction for you."
MR. CHEW: He is representing that Ms. Heard's plan was to donate $3.5 million over the next J 5 ten years; is that correct?
TERENCE DOUGHERTY: Correct. That that was her plan.
MR. CHEW: Did Ms. Heard ever say, in words or substance, that Mr. Musk was not correct and that wasn't her plan?
TERENCE DOUGHERTY: I do not believe she ever said that.
MR. CHEW: So, she never refuted Mr. Musk's representation that she was going to pay the full $3.5 million, correct?
TERENCE DOUGHERTY: It isn't the case that she didn't object to -- that she was going to pay the 3.5; It's just that she didn't object that that was her plan as of August 18th, 2016.
TERENCE DOUGHERTY: Yes.
MR. CHEW: And you see, at the top, it says "Salesforce screenshot." Would you remind us, please, what Salesforce is?
TERENCE DOUGHERTY: It's our current CRM, our constituent records management system, which is where we store all the information we have about our donors. We call it our donor database.
MR. CHEW: And I believe that we've seen a version of this in an email from Mr. Marino -- or Maresco, correct?
TERENCE DOUGHERTY: I do recall that this document, this is part of documents that we produced.
TERENCE DOUGHERTY: Sure.
MR. CHEW: If you look at the bottom entry in the column, the entry that has a close date, 8/19/2016, "completed $350,000."
TERENCE DOUGHERTY: That's a record of her $350,000 contribution to us.
TERENCE DOUGHERTY: I do.
TERENCE DOUGHERTY: That this was in connection with her overall plan to make a contribution to us of 15$3.5 million.
MR. CHEW: Okay. Now, let's move up to the entry in the middle of the chart. Says "Ms. Amber Heard- soft credit- 2017. Close date, June 12th, 2017. Completed $500,000." What does that mean?
TERENCE DOUGHERTY: That's the record of the Vanguard ,22 Charitable contribution in 2017.
TERENCE DOUGHERTY: Because it didn't come directly from Amber Heard, it came from the Vanguard Charitable trust, charitable fund, and we wanted to continue to associate it, though, with Amber in our donor database.
MR. CHEW: Is it customary for the ACLU to make distinctions between hard donations, that is coming directly from the donor, and donations made by others in the donor's name?
TERENCE DOUGHERTY: It's extremely important for us to understand who -- whether funds came directly to us from a donor, for a donor-advised fund, or from another donor altogether. That's very helpful information to us as we think through our fundraising program.
MR. CHEW: But my question was, is it common practice? And it sounds like it is common practice because you say it's important, correct?
TERENCE DOUGHERTY: Yeah, I believe it's a common practice. I believe it's a common practice.
TERENCE DOUGHERTY: Yes.
MR. CHEW: This is for the December 2018 payment, and I believe you testified this is the last payment Ms. Heard has made, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: This signifies - this relates to the 2018, $350,000 gift that we got, which I believe came from Amber's donor-advised fund at Fidelity.
MR. CHEW: Okay. And let's close this out by looking at 4682, which purports to be an email from Liz Fitzgerald to Jonathan Maresco.
TERENCE DOUGHERTY: Liz Fitzgerald's then title was director of special gifts, but her current tile is the director of development. She's the number two in our development department. She reports directly to Mark Wier.
TERENCE DOUGHERTY: And even then, as director of gifts, she reported directly to Mark Wier.
MR. CHEW: All right. And with respect to Exhibit 67, the attachments that we've described, were they created in the ordinary course of the ACLUs business?
TERENCE DOUGHERTY: The only one that I would not say was in our ordinary course of business is number 4681, in that this was created in connection with a discussion with Amber Heard's attorneys about Amber's donations to the ACLU.
MR. CHEW: But all of the other documents in this exhibit were created in the ordinary course of the ACLUs business, correct?
TERENCE DOUGHERTY: Correct And even this one came from our donor database, which is something we keep in I the ordinary course of our business. '!
MR. CHEW: And it's your testimony, sitting here today, that the AC -- the information depicted on ACLU 4681 is accurate and reflects the accounting records kept in the ACLUs ordinary course of business, correct?
TERENCE DOUGHERTY: It is correct that we received the 350, 500, and the 350, and that we associated them all, in some way, with Amber. It does not list the $100,000 Johnny Depp payment. And, yeah, and there's differing terms that are used in that. I'm not sure we would use the term "soft credit." We might refer to it in another way now. After that 2017 gift, that's when we launched the new databases system, the Salesforce system, and prior, it had been the PIDI system. So we had been doing some changes to definitions about how we record gifts.
TERENCE DOUGHERTY: But the basics, which is that these are all associated with Amber Heard, these three gifts, that is absolutely accurate.
MR. CHEW: Well, you raised a good point. Why isn't the $100,000 donated by Johnny Depp credited to Amber Heard?
TERENCE DOUGHERTY: I think it should have been recorded in our databases because it's information that we would want to have, in that database, about gifts relating to our relationship with Amber Heard. And we, now, do consider that gift as part of the constellation of gifts that are attributed to our relationship with Amber Heard.
TERENCE DOUGHERTY: Yes, 700 plus 8 - plus that 800, plus 500 is 1.3, correct.
MR. CHEW: So the ACLU, sitting here today, attributes $1.3 million toward Ms. Beard's $3.5 million pledge, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Correct.
MR. CHEW: So putting aside 4681, were all of the emails prepared by ACLU employees in the course of their ordinary business?
TERENCE DOUGHERTY: I'm just reminding myself.
TERENCE DOUGHERTY: Well, I believe that was also created - downloaded from our records in relation to this litigation matter. I don't believe that we created this document and had it in a paper file somewhere. But I think we, you know, pulled this information, this wiring information. It may be the same wiring information that was looked at, at the time that the donation was made.
MR. CHEW: So exhibit 67, it's fair to say, is comprised of ACLU business records kept and maintained in the ordinary course, correct?
TERENCE DOUGHERTY: Correct.
THE COURT: Let's take our morning break.
THE COURT: All right. Let's go ahead and take our 15-minute recess. Do not discuss the case with anybody, and don't do any outside research, and we'll see you then.
THE COURT: All right. Let's go ahead and come back and take a break until 11:45.
THE COURT: All right. Thank you.
COURT BAILIFF: All rise.
COURT BAILIFF: (Recess taken from : ) I to All rise.
COURT BAILIFF: Please be seated and come to order.
THE COURT: All right. Are we ready for the jury?
MS. BREDEHOFT: Yes, Your Honor.
THE COURT: Okay.
THE COURT: All right. If you want to continue.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: This is a series of communications, among people in our communications department around engaging Amber on our programmatic work, specifically relating to her being an ACLU's ambassador.
MR. CHEW: Let's, now, turn back to the email on ACLU 47, bottom of the page, from Gerry Johnson, to Jodi Gottlieb and others.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Gerry Johnson was a more junior person in our communications department. His title was communications department strategist, and his strategists are often communications department associates that have expertise in and do work in a select number of our issue areas.
MR. CHEW: And he writes. "I'd like your and ! Amber's thoughts on doing an op-ed in which she discusses the ways in which survivors of gender-based violence have been made less safe under the Trump administration and how people can I take action.
TERENCE DOUGHERTY: With Amber agreeing to be an ambassador and to work on women's rights issues and, in particular, issues of gender-based violence, Gerry was coming up with specific things that were things that were of significant policy importance to the ACLU that could be the subject matter of an op-ed written by Amber.
TERENCE DOUGHERTY: Gender-based violence.
MR. CHEW: Then further down, he says, "If she feels comfortable, she can interweave her personal story, saying how painful it is, as a GBV survivor, to witness these setbacks."
TERENCE DOUGHERTY: There were a number of things that Amber had expressed, from her personal story, about her having been a survivor of gender-based violence. And so, one of the things that we do with ambassadors is we want them to tell authentic stories about our issues in the public. And to the extent that they have any personal direct experiences, for that to be part of their story for the public.
MR. CHEW: So the ACLU was not forcing her to relate her own experience with GBV, it was leaving it up to Ms. Heard's discretion, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Correct.
MR. CHEW: Mr. Dougherty, asking you to, please, look at exhibit 33, and ask whether you've ever seen this before?
TERENCE DOUGHERTY: I have.
MR. CHEW: Do you see an email from Robin Shulman to Jessica Weitz, dated November 14th, at 10:58 a.m.?
TERENCE DOUGHERTY: Yes, sir.
TERENCE DOUGHERTY: Robin Shulman is a person in the communications department who is no longer with us, but who had expertise in interests involving gender issues.
TERENCE DOUGHERTY: I don't know whether she's an attorney. A number of our communications department staff members are, but I don't know. She wasn't working as an attorney.
TERENCE DOUGHERTY: The situation is whether we are going to be doing an op-ed with Amber.
MR. CHEW: Okay. And moving up on the page, there's an email from Gerry Johnson, who says, "Jess had drinks with Amber last night, and it sounds like she was able to confirm with her that we'll be doing the first draft."
TERENCE DOUGHERTY: Uh-huh.
TERENCE DOUGHERTY: It is -- often a decision has to be made, when we're working with ambassadors or with other people who are speaking to the public, who does the first draft of the document. So it sounds, here, that Gerry is saying that we are -- that from Jess's conversation with Amber, we are moving forward with some kind of an op-ed, and that ACLU communications department staff members would be writing the first draft of it.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Okay. Let's, please, turn to Exhibit 35, please. Have you ever seen this document before, Mr. Dougherty?
TERENCE DOUGHERTY: Yes, I have seen this document. Thanks, Michael. I have
TERENCE DOUGHERTY: This is a series of communications about-- it's the result of a series of communications about the op-ed that Amber -- under Amber's name that took place with a media outlet. So this is Jessica Weitz sending a draft of that to Amber.
MR. CHEW: Great. And let's go to the first email first. The email that starts on the second half of ACLU 185. It purports to be from Robin Shulman to Jessica Weitz, on November 29. Do you see that?
TERENCE DOUGHERTY: I do.
TERENCE DOUGHERTY: So I assumed that it was not an attachment, but it was just pasted into an email, but I can't tell from this.
TERENCE DOUGHERTY: I don't see anybody saying "attached." So it could be either. But what I see this as is Robin sending a note to Jessica Weitz, for Jessica Weitz to forward to Amber.
MR. CHEW: Understood. Robin says "I tried to gather your fire and rage and really interesting analysis and shape that into an op-ed form."
TERENCE DOUGHERTY: That refers to the effort for our ACLU ambassadors to speak publicly in a way that is impactful, that is - shows the importance of the issues and how pertinent they are, personally, to the individuals. In this case, they are for Amber's passion for working on gender-based violence issues and speaking about it and that she has an analysis that is one that Robin finds interesting.
MR. CHEW: And so when she's referring to "fire and rage," that's Ms. Beard's fire and rage, correct?
TERENCE DOUGHERTY: Yes, that's my read of this, even though I recognize that it is confusing because I: 1 it's an email from Robin to Jess.
MR. CHEW: And the rage would be directed against Johnny Depp, who purportedly abused her, correct?
TERENCE DOUGHERTY: I didn't take it to mean that. I took it to be fire and rage about gender-based issues.
MR. CHEW: Was it your understanding that it was Robin Shulman who drafted -- who prepared the first draft of the op-ed?
TERENCE DOUGHERTY: Yes.
MR. CHEW: Okay. And Robin says to Jessica, "Your lawyers should review this for the way I skirted around talking about your marriage."
TERENCE DOUGHERTY: I believe these are Amber's regular advisors, or who were involved in the review negotiation of the NDA between Amber and Johnny Depp.
MR. CHEW: And then if you look at -- direct your attention to the top email from Jess to -- Jessica apologies for the delay, but we have needed to pass this through quite a few lawyers." What lawyers did Jessica Weitz pass these through, pass the op-ed through?
TERENCE DOUGHERTY: These were lawyers in the women's rights project of the ACLU, plus the director of the Center for Liberty, the deputy legal director of the ACLU, who runs the Center for Liberty, within which is the women's rights project, and even the legal director of the ACLU, who runs the whole legal department, our programmatic litigation work on behalf of civil liberties, David Cole.
TERENCE DOUGHERTY: Well, David Cole is at my level. Just to be clear, he also reports to the executive director, but it never got to me or anybody on my team
MR. CHEW: Did anybody ever ask you to review any drafts of the op-ed, including the final draft that was published in the Washington Post?
MR. CHEW: She says, "I want to make sure nothing was said in here that puts you in jeopardy with your NDA"
TERENCE DOUGHERTY: The nondisclosure agreement that was entered into between Depp and Heard in connection with the dissolution of their marriage and the settlement agreement.
MR. CHEW: Okay. And is this a document that was prepared in the ordinary course of the ACLU's business?
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: I have. This is a draft of the op-ed that Robin is sending to Amber, after a conversation that they had to discuss the issues in the op-ed, and, in particular, my -yeah, to have a conversation about the op-ed.
TERENCE DOUGHERTY: And then she sends her changes that were made to the op-ed that were relating to things that Robin and Amber discussed during that meeting.
MR. CHEW: And to be clear, this next draft of the op-ed reflects changes that Robin Shulman made after she met, in person, with Amber Heard; is that correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: My understanding is that they discussed some of the personal experiences of - that Amber Heard has had that were - that Robin used to incorporate into the op-ed.
MR. CHEW: Isn't it true that Ms. Beard's advisors initially revised the draft to remove any reference to Ms. Beard's marriage or divorce?
TERENCE DOUGHERTY: I recall a number of email communications back and forth among ACLU personnel and Ms. Heard's attorneys, where they were suggesting edits to the op-ed relating to matters , Is covered in the NDA.
MR. CHEW: And then, isn't it also true that there were some, at the ACLU, who expressed their belief that excising those references to her marriage and divorce from Johnny Depp made the op-ed less impactful, correct?
TERENCE DOUGHERTY: It is correct. That is correct.
MR. CHEW: But ultimately, based on those voices, Ms. Heard pushed to get that excised material back into the op-ed so it could be more impactful, it's true?
TERENCE DOUGHERTY: That's not my understanding. My understanding is that the language that wound up in the final op-ed piece was very different from the original language that Robin included in the op-ed, after having spoken with Amber about her personal experiences.
TERENCE DOUGHERTY: It was - it did not refer directly to Ms. Heard's relationship with Johnny Depp.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: So this relates to Stacy Sullivan, who reported to Terry Tang, and her role, with respect to this op-ed piece, was to think about the best place to place it, and to make the contacts with the media in order to get it placed
MR. CHEW: And she suggests here that the outlets that the ACLU and Ms. Heard was considering were the New York Times, The Washington Post, Teen Vogue, and USA Today; is that correct?
TERENCE DOUGHERTY: So not Stacy, but Gerry, who I think you said "she," Gerry is a he, and Gerry wrote some suggested places to place this after having had conversations with Amber.
MR. CHEW: And Gerry's suggestions were the New York Times, Washington Post, Teen Vogue, or USA Today; is that correct?
TERENCE DOUGHERTY: Correct.
MR. CHEW: Whose responsibility was it to place the op-ed? Was it the ACLU's, Ms. Heard's or some combination of the two?
TERENCE DOUGHERTY: The work to place the op-ed was taken on by the ACLU, in that we have, in our communications department, people with expertise and people who regularly do that kind of work. But as we can see from this email, it was done in consultation with Amber Heard.
MR. CHEW: And Mr. Johnson writes, "Since the draft turned out pretty strong and Aquaman is slated to do large numbers, I'm wondering what you t think about it.
TERENCE DOUGHERTY: This appears to be the analysis of how broad-based and how - what kind of reach the media outlets where we can place this, will have, and that media outlets are more likely to take on publishing an op-ed like this if it is a strong one and if it is - and to the extent that it is written by a public person who is an entertainer, a well-known person, that the more they are in the public eye at the time, the more likely it will be accepted by a more prominent or broader-reach media outlet.
TERENCE DOUGHERTY: And so, that's the sort of descending - media outlets in descending terms of descending likelihood - well, descending importance and reach, but greater likelihood from, you know, for example, as we go down that list.
MR. CHEW: And Amber is referencing her own direct personal experience and her marriage to Johnny Depp makes it a strong product, correct?
TERENCE DOUGHERTY: I think that the -Amber's contributions to the, you know, the portion of the op-ed that talks about personal experiences is part of what informed the view that this was a strong op-ed, and the importance of the women's rights issues referred to in the op-ed, in that some of them were very timely women's rights issues before Congress.
TERENCE DOUGHERTY: I don't know whether she was a costar, but I know that that was a film that she was in.
MR. CHEW: And didn't she tell the ACLU that she wanted the op-ed to come out just after Aquaman was released?
TERENCE DOUGHERTY: I do recall that there was a conversation about the optimal timing for the op-ed piece.
MR. CHEW: And as part of that conversation, Ms. Heard said, in words or substance, that she wanted the op-ed to come out soon after Aquaman, correct?
TERENCE DOUGHERTY: I believe that's correct.
TERENCE DOUGHERTY: I don't recall. Although I believe that there are documents that we produced that can shed some light on that.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes, it was.
TERENCE DOUGHERTY: True.
MR. CHEW: Okay. If we could move ahead, please, to Exhibit 41. This is another one of these -- well, it's not that long. AV TECHNICIAN: Yes, sir. Stand by.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: These are further communications among employees, staff members, in the development department, regarding Amber's - the placement of Amber's ad and the finalization of the op-ed piece - not ad, I'm sorry, op-ed. The finalization of it.
MR. CHEW: If we could move ahead, please, to ACLU 257, and, specifically, the email from Robin O Shulman to Jessica Weitz December 11th, continuing on to the next -- strike that.
MR. CHEW: Okay. And she says, "Amber sent back the op-ed with final edits from her legal team," which specifically neutered much of the copy regarding her marriage and the domestic violence.
TERENCE DOUGHERTY: I do.
TERENCE DOUGHERTY: I'm not sure of the term "neutered" here. But I do know that her lawyers removed references to her marriage and divorce.
MR. CHEW: And then she writes, "The goal is to get this out this week to capitalize on the tremendous campaign for Aquaman."
TERENCE DOUGHERTY: That means, from the ACLU's perspective, that Amber is about to receive an incredible amount of press and be in the public eye. So what better time would it be than now to put out this op-ed so that it generates significant readership about our issues.
TERENCE DOUGHERTY: I believe the answer is yes. Every p step of the way, we were making these decisions with Amber's PR representatives involved
TERENCE DOUGHERTY: Okay.
TERENCE DOUGHERTY: Okay.
MR. CHEW: "Robin, her lawyers omitted the below, but Amber would love to see a way to have that part in bold somehow put back in. Is there an artful way to do that? Otherwise, she is okay with the final. 'Two years ago, I sought a temporary restraining order from my then-husband' was changed to 'two years ago, after successfully acquiring a temporary restraining order,' but still not cleared by her lawyers."
TERENCE DOUGHERTY: I do.
TERENCE DOUGHERTY: Yeah. I trust Jessica Weitz's relationship with Amber, so that when Jessica told Robin that that was something Amber wanted, I had no reason to think that that's not correct.
MR. CHEW: Okay. Finally, let's look at the beginning, the first email in Exhibit 41, from Stacy Sullivan to Jessica Weitz, and says "Yes, and I need to read the latest version. Robin told me Amber's lawyers took out some of the stuff that made it really powerful, so let me look to see if I think it's strong enough for top tier."
TERENCE DOUGHERTY: I think, from Stacy's perspective, the more powerful a document is, the more likely it will go into a top tier news outlet, such as New York Times or The Washington Post, you know, that sort of descending tiering that was in Gerry Johnson's email.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Was it prepared in the ordinary course of the ACLU's business by people having knowledge and done so contemporaneously?
TERENCE DOUGHERTY: Yes.
MR. CHEW: Okay. Directing your attention to the first page in exhibit 43, from Jessica Weitz to Sean Walsh.
TERENCE DOUGHERTY: Seanwalsh@wwgrconsulting.com.
TERENCE DOUGHERTY: I don't know who that is. This is an email that includes in it people other than ACLU employees and ACLU consultants, so I'm assuming it's somebody relating to, you know, one of Amber's representatives, but I don't know for sure.
TERENCE DOUGHERTY: Yeah, george@bgrfirm. Yeah, Eric George was one of Amber's attorneys.
MR. CHEW: And she's announcing to the group that "It's going to The Washington Post," and triple exclamation points?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Correct.
MR. CHEW: And I believe you testified earlier, but I just want to confirm for the record, the ACLU took on the responsibility of attempting to place the op-ed, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: Placing op-eds about matters such as this is the kind of thing that is the bread and butter for the ACLU. And, so, I don't recall if conversation happened about whether her PR people or our PR people should place -- should be the ones that do the work to place this, but it is fully consistent with how we do our work, that we place this one.
TERENCE DOUGHERTY: I am familiar with this document.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Was it made in the ordinary course of ACLU's business by people having knowledge and doing so contemporaneously?
TERENCE DOUGHERTY: Correct, yes.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Would you, please, direct your attention, sir, to page Bates number 1181. In the middle of the page, purports to be an email from Stacy Sullivan to Michael Larabee, and others at The Washington -- well, I'll just say Michael Larabee. Who is Michael Larabee?
TERENCE DOUGHERTY: Michael Larabee appears to be a person who is a contact that Stacy Sullivan had at The Washington Post. And so, she sent she reached out to him first about placing the ad. And then because she received a bounce back out of office from Mike Larabee she sent the original request to Michael Duffy and Mark Lasswell also at The Washington Post.
TERENCE DOUGHERTY: This was her attempt to get the op-ed placed.
MR. CHEW: And she writes, "Hey, Michael. Wondering if we might interest you in a piece by Amber Heard (who, as you may recall, was beaten up during her brief marriage to Johnny Depp) on what the incoming Congress can do to help protect women in similar situations."
TERENCE DOUGHERTY: Yes, you read it correctly.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Directing your attention to the title, "Amber Heard: I spoke up against sexual violence and faced our culture's wrath. That has to change."
TERENCE DOUGHERTY: Based on my investigation, I'm not aware of any - I'm not aware that the ACLU had any role in writing the name of the op-ed piece. And my understanding of how op-ed pieces work is that it is the media, in this case, The Washington Post, would have drafted the name of the - the title of the op-ed and not the person who wrote the op-ed.
TERENCE DOUGHERTY: I believe the answer to that is no. There's nothing in the evidence that shows that they reached out to us to do that, and it's consistent with my understanding that these news outlets do not usually ask for the permission of the author of the op-ed to, you know, for when they come up with the title.
MR. CHEW: Mr. Dougherty, have you ever seen Plaintiff's Exhibit 45, which is Bates number ACLU 623?
TERENCE DOUGHERTY: Hold on. I'm just making it a little bigger.
TERENCE DOUGHERTY: Okay. Yes, I have seen this document.
TERENCE DOUGHERTY: That's correct.
TERENCE DOUGHERTY: This is an article that was in US Today [sic] and, specifically, ties Amber's statements in her op-ed piece to Johnny Depp.
TERENCE DOUGHERTY: I speculate that she was saying that there was significant efforts made by Amber's attorneys to take out the references to Johnny Depp and her marriage and, yet, nonetheless, people made that connection.
MR. CHEW: And in particular, the reporter for the USA Today took her to be referring to Johnny Depp when she spoke of being the victim of domestic violence, correct?
TERENCE DOUGHERTY: Correct.
MR. CHEW: Was this document prepared in the ordinary course of the ACLU's business s ! 14 contemporaneously by people having knowledge?
TERENCE DOUGHERTY: Yes, it was.
TERENCE DOUGHERTY: Yes.
AV TECHNICIAN: Yes, sir. Stand by.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: This is a statement by Robin Shulman i saying that the article that they're referring to, basically, you know, recasts everything that's said but ties it to Johnny Depp.
MR. CHEW: So, Ms. Shulman is agreeing with Ms. Weitz's characterization that the USA took Ms. Heard to be referring to her allegations of physical violence by Johnny Depp, correct?
TERENCE DOUGHERTY: Yes.
MR. CHEW: And she says "It's kind of amazing that they just grabbed the entire op-ed and rewrote it p5 using Johnny's name."
TERENCE DOUGHERTY: I don't know why she found it amazing.
MR. CHEW: If that was consistent with your understanding, she was referring, at least in part, to Johnny Depp, correct?
TERENCE DOUGHERTY: Based on my review of prior drafts of the op-ed, I knew that they were that she was referring to Johnny Depp and her marriage.
MR. CHEW: Was Exhibit 46 prepared in the ordinary course of business by people having knowledge contemporaneously?
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Okay. Let's move to Exhibit 59, please, which is Bates numbers ACLU 2614 through 2616.
TERENCE DOUGHERTY: Okay.
TERENCE DOUGHERTY: Scroll to the beginning. Yes.
TERENCE DOUGHERTY: This is a conversation among ACLU employees regarding what were the amounts contributed to the ACLU that were connected to our relationship with Ms. Heard.
TERENCE DOUGHERTY: Yes.
MR. CHEW: And it was prepared contemporaneously by people with knowledge in the ordinary course of the ACLU's business, correct?
TERENCE DOUGHERTY: Correct.
MR. CHEW: And looking at the chart on ACLU 2615, this is the same contributions chart that you testified about earlier, from Salesforce, correct?
TERENCE DOUGHERTY: Correct.
MR. CHEW: And, again, as in the prior exhibit, this chart or ledger does not reflect the $100,000 contribution from Johnny Depp, in Amber Beard's name, in August of 2016, correct?
TERENCE DOUGHERTY: Correct.
TERENCE DOUGHERTY: We assumed that there was an error made in not including that in Ms. Heard's account, you know, where we keep the records of her in Salesforce. Although, Anthony, as you see, then, raised the very question, "What about the $100,000?"
MR. CHEW: And directing your attention to the first page in this exhibit, do you see the email from Mr. Romero to Mr. Maresco, subject, "a quick ,: question." Mr. Romero asked, "Did Elon's other gifts come from Vanguard?" To what does that refer?
TERENCE DOUGHERTY: My personal knowledge is that Anthony was just asking whether other gifts from Elon Musk had been issued from recommendations he made to Vanguard regarding his donor-advised fund at Vanguard.
MR. CHEW: And Mr. Maresco then responds, "One of them, yes. His $5 million gift in February 2017 was from Vanguard."
TERENCE DOUGHERTY: I see it.
MR. CHEW: And if you look at the next page, Vanguard was the same entity that made the soft credit contribution, in Amber Beard's name, to the tune of $500,000, correct?
TERENCE DOUGHERTY: Correct. •22
MR. CHEW: And he says, In any case, my I I understanding was that the 500000 from Vanguard was recommended by EM Do you see that?
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Correct.
MR. CHEW: And, also, in that email above that, Mr. Maresco states that Mr. Musk's "$1 million gift in May of 2018 was from Fidelity."
TERENCE DOUGHERTY: Yeah, he must- either that means a separate donor-advised fund that he has at Fidelity, or from- Fidelity, you know, a direct investment accounts that he has at Fidelity. I'm assuming the former, but I don't know.
MR. CHEW: And if you look at the next page in the Salesforce chart, the second payment credited to Ms. Heard, for $350,000, as of December 11th, 2018, came from that same Fidelity, correct?
TERENCE DOUGHERTY: I don't know the answer to that question. I know that it came from a Fidelity donor-advised fund for 350,000, but I don't know if it is Elon Musk's donor-advised fund at Fidelity.
TERENCE DOUGHERTY: It could be.
MR. CHEW: Okay. Let's move, thank you, on to 61, please, which is the Bates numbers ACLU 1669 through 71.
MR. CHEW: Directing your attention to the last email in this exhibit, from Jill Serjeant, to Inga O Sarda-Sorenson, and Tyler Richard.
TERENCE DOUGHERTY: Inga and Tyler are both senior communications department strategists in our communications department.
MR. CHEW: Okay. And Ms. Serjeant, from Reuters., asks, "I'm preparing material while awaiting a verdict in the Johnny Depp libel trial in London and wanted to fact check Amber Heard's current/previous links with the ACLU."
MR. CHEW: Do you recall Mr. Depp's -- that this is a reference to Mr. Depp's defamation case in the U.K. against The Sun?
TERENCE DOUGHERTY: It appears, to me, that that's the trial she's referring to.
MR. CHEW: Okay. Directing your attention, please, to Bates number ACLU 1670, the email from Jessica Weitz to Tyler Richard.
TERENCE DOUGHERTY: Correct.
MR. CHEW: Then Ms. Weitz writes, "She donated her full settlement to charity, 50 percent to the ACLU and 50 percent to another organization."
MR. CHEW: That's a reference to Ms. Heard's representation that she donated the full amount of her divorce settlement from Johnny Depp to charity, correct?
TERENCE DOUGHERTY: Correct.
MR. CHEW: And that statement was not true. She had not donated the full amount of her settlement, $7 million, to the ACLU or the Children's Hospital p of Los Angeles, correct?
TERENCE DOUGHERTY: At the time that Jess Weitz wrote this, in July of 2020, Ms. Heard had not donated her full settlement to the ACLU, and I'm not aware of what she did to the other organization.
MR. CHEW: At the time Ms. Weitz wrote that, the ' ACLU was still $2.2 million short, even if you credit Ms. Heard with the 100,000 that Johnny Depp gave to the ACLU, right?
TERENCE DOUGHERTY: At the time that she wrote this, we had received the 1.3. So, yes, 2.2 million of the full 3.5 million, we had not received.
TERENCE DOUGHERTY: Yes.
MR. CHEW: Was it prepared in the ordinary course of the business by people having knowledge contemporaneously?
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: This is Jessica Weitz reaching out to the communications department in order to come up with a correct statement that we could make in response to the Reuters article. And she comes up with recommended language on this that she, then, wants to confirm with our development department. So, she is doing diligence to ensure that anything we say to the media is going to be correct.
TERENCE DOUGHERTY: I'm making it larger.
TERENCE DOUGHERTY: Yes.
TERENCE DOUGHERTY: This is back-and-forth between Richard Tyler, in the communications department, Jessica Weitz, and another communications department junior person, Eva Lopez. And it all concerns what we can say to -- what we should say to Reuters in response to their question about Amber and her contribution to the ACLU.
TERENCE DOUGHERTY: Correct.
MR. CHEW: And this was prepared and maintained in the ordinary course of the ACLUs business, true?
TERENCE DOUGHERTY: True. Correct.
MR. CHEW: Let's look at the second page of the exhibit, an email from Tyler Richard to Jessica Weitz.
TERENCE DOUGHERTY: Uh-huh.
TERENCE DOUGHERTY: It's Richard Tyler, and - no, it's Tyler Richard, Tyler Richard, and he's a senior person in our communications department.
MR. CHEW: Mr. Richard says, "Amber Heard is an ACLU ambassador for women's rights since 2018. She also pledged her full settlement to charity."
TERENCE DOUGHERTY: I do.
MR. CHEW: And Ms. Weitz responds, "Yeah, I think that's safer. I had nightmares about this last night. I'm very upset. Do you think this is okay?
MR. CHEW: Why was Ms. Weitz so upset about the characterization of Ms. Heard' s charitable donations or lack thereof?
TERENCE DOUGHERTY: My understanding is that the communications department professional, Jessica was concerned about these news articles that were appearing and what impact they would have on, you know, the -- how the ACLU and its work with Amber is seen.
MR. CHEW: She was concerned that the ACLU was not telling the truth about Amber's paying the 3.5 million, correct?
TERENCE DOUGHERTY: I don't see it that way. I see it as her doing everything she can in order to produce a correct statement to the press.
TERENCE DOUGHERTY: As I testified earlier, that's not the kind of thing we would ever say about a donor to the ACLU. Instead, we would, especially when it isn't the fact that there was any specific time period by which we were supposed to have received, you know, any specific amount of money, considering that she didn't sign the pledge agreement and, therefore, you know, there's an attempt -- so as an organization, we attempt to work with our donors who are having financial difficulties in order to receive, you know, the funding from them that they want to give to us.
TERENCE DOUGHERTY: So, no, I don't see this -- we would -- in that sort of scenario, we would never say she's short anything.
TERENCE DOUGHERTY: Okay.
MR. CHEW: From Ms. Weitz to Mr. Richard, dated July 31. She says "I'm just stressed about her and the difficulties with all this."
TERENCE DOUGHERTY: I assume that is Amber Heard.
TERENCE DOUGHERTY: Because this is a stressful thing, to have these kinds of news reports out there, and, in particular, about an ACLU ambassador.
TERENCE DOUGHERTY: What I believe the Reuters article - from the Reuters article.
TERENCE DOUGHERTY: I think it was the tie between the attempts to make Ms. Heard look poorly in the press regarding her donations.
TERENCE DOUGHERTY: Yes, I did.
TERENCE DOUGHERTY: Ms. Weitz didn't say anything specific about that
MR. CHEW: You didn't ask her about why she said I she was stressed about Amber Heard and the difficulties with all this?
TERENCE DOUGHERTY: I believed, in reviewing the documents, that I had an understanding of why this was a difficult situation for many people.
TERENCE DOUGHERTY: I did not ask her that question.
MR. CHEW: Did you ask her about the nightmare she had about Amber Heard and why she had -- what the substance of her nightmares were about Amber Heard?
TERENCE DOUGHERTY: No, I did not.
THE COURT: All right. Thank you.
MS. BREDEHOFT: Exhibit Number 1, it is Bates-stamped 2866. It was introduced, as well, by counsel for Mr. Depp, but it's easier for me to just jump into this one.
MS. BREDEHOFT: Do you recognize this document?
TERENCE DOUGHERTY: Yes.
MS. BREDEHOFT: It says here "Amber, I described your plan to donate 3.5 million to the ACLU over the next 10 years, as you very much believe that they're doing."
MS. BREDEHOFT: Now, the way in which "donate" is used here, how would you interpret that?
TERENCE DOUGHERTY: I would say that, at the very least, it was expressing an intention to make that donation -
MS. BREDEHOFT: And it's --
TERENCE DOUGHERTY: By the term "plan."
MS. BREDEHOFT: Okay. And would you distinguish between donate and pledge, given the reference to the "next 10 years"?
TERENCE DOUGHERTY: I would read this to mean that it isn't clear whether this is - intended to be a pledge or legally binding pledge to create a receivable. This is something that I would want to -- that I would hope would be a legally binding pledge, but 1: I wouldn't necessarily say that this was.
MS. BREDEHOFT: All right. And the term "donate" here, how would you interpret that, based on the description that you gave earlier?
TERENCE DOUGHERTY: I would take "donate" to mean contributions from Ms. Heard.
MS. BREDEHOFT: And what, if any, interpretation do you have that this also meant "pledge"?
TERENCE DOUGHERTY: So, two things in response to your question. One is, plan to donate. When I said it would come from Ms. Heard, I would think that that would be either Ms. Heard directly or from a donor-advised fund that she has set up and would recommend.
TERENCE DOUGHERTY: But, "over the next 10 years" makes me think that, you know, donate could, theoretically, be a pledge, but that's something that we would want to attempt to confirm.
MS. BREDEHOFT: And just so I understand, what's the difference between donate and pledge in how you were interpreting this?
TERENCE DOUGHERTY: If this used the word pledge, I would Is have more assurance that this was intended to be a, you know, hard-and-fast promise that even could, potentially, be a legally binding process -- promise.
MS. BREDEHOFT: I'm going to show you what's been marked as Defendant's Exhibit Number 2.
MS. BREDEHOFT: Do you recognize this document, Bates 2632?
TERENCE DOUGHERTY: I do recognize this document.
MS. BREDEHOFT: And what is your understanding of what this is?
TERENCE DOUGHERTY: This is the cover letter to which the check for $100,000 was attached, which related to Johnny Depp's contribution to the ACLU in the name of Amber Heard.
MS. BREDEHOFT: Now, you've used the term ''binding" a few times here in responding to these.
MS. BREDEHOFT: What is your distinction with the words pledge and donate that relate specifically to binding?
TERENCE DOUGHERTY: Pledge is - if something is legally binding, it is a pledge, but it doesn't necessarily mean that everybody that uses the term pledge means something that's legally binding. Donate is a much, much broader term.
MS. BREDEHOFT: And donate can mean pledge?
TERENCE DOUGHERTY: Yeah, I think the word donate can be used in connection with a pledge.
MS. BREDEHOFT: Do you have any understanding of what Amber Heard believed was a pledge versus a donation?
TERENCE DOUGHERTY: I don't know.
MS. BREDEHOFT: Did the ACLU have any reason to believe that Amber Heard would not be pay the ACLU $3.5 million?
TERENCE DOUGHERTY: I think that everybody at the ACLU was hoping - we were hoping - the ACLU was hoping and expecting that the full 3.5 million would be paid to the ACLU. The fact that the pledge form wasn't signed was, you know, cast some potential doubt on that, and then once Ms. Heard began having financial difficulties, we, obviously, recognized that that might impact whether the full 3.5 million is paid or impact whether it's paid over a much longer period of time, in some intermittent way.
MS. BREDEHOFT: Do you have any evidence to suggest that Amber Heard still does not intend to pay the ACLU the full 3.5 million?
TERENCE DOUGHERTY: I have no - based on my investigation, I'm not aware of any indication that Ms. Heard has decided to no longer pay additional amounts to the ACLU.
MS. BREDEHOFT: I'm going to ask you to bring up Number 4, please. I'm going to ask you to take a look at this document, and it starts out, on the bottom, with Amber, on October 17, 2016, to "arp"
MS. BREDEHOFT: Who's that?
TERENCE DOUGHERTY: That's Anthony Romero's private email. Anthony Romero private.
MS. BREDEHOFT: And she's telling him to go ahead and cash Mr. Depp's check.
MS. BREDEHOFT: Do you see that?
TERENCE DOUGHERTY: I do.
MS. BREDEHOFT: And Mr. Romero responds to her, "Thank you for the response. We will cash the check, but that means you 'overpaid' for this year, as you wired 350,000, and then the $100,000 from Mr. Depp. So you can keep track of where you are on the overall amounts." Do you see that?
TERENCE DOUGHERTY: I do.
MS. BREDEHOFT: I'm going to show you what's been marked as deposition -- Defendant's Exhibit Number 14, and it's Bates stamp ACLU 2588 through 89. This is -- and I realize there is a version of this that Mr. Chew showed you. But this includes an email from Mr. Romero to Jonathan Maresco, Mr. Maresco to Mr. Romero, with a copy to Mark Wier. And it says here, "Hi, Anthony. If you get a chance on Sunday, can you please check in with Amber on her next pledge payment? She has a balance of $2.55 million on her $350,000 10-year pledge. Below is a summary of her other payments." Do you see that?
TERENCE DOUGHERTY: I do.
MS. BREDEHOFT: Okay. And so, this has the 500,000 and the 350,000 and the 100,000 on it, correct?
TERENCE DOUGHERTY: Correct.
MS. BREDEHOFT: Okay. And that was September 28th, 2018. I'm going to show you what has been marked as Defendant's Exhibit 15, it's Bates-stamped 2595, and I'm going to make it larger. And if I can show you, we have an email from Mr. Romero saying, "Is there anything I can do to help facilitate your next pledge payment of 350,000?" And it's dated November 27, 2018.
MS. BREDEHOFT: Do you see that?
TERENCE DOUGHERTY: I do.
MS. BREDEHOFT: All right. And then, Amber comes back, on 11/29, and says, "Hang on. I'll be right with I you." s Do you see that?
TERENCE DOUGHERTY: Correct. Yeah, I see it.
MS. BREDEHOFT: Okay. And then the $350,000 payment came in on December 11, 2018, correct?
TERENCE DOUGHERTY: Correct.
MS. BREDEHOFT: And that made it a total of, what, 1.3 million, we've decided, right? What was the total amount of the donations after the 12/11/2018 that was made toward Ms. Heard's $3.5 million pledge to ACLU?
TERENCE DOUGHERTY: 1.3 million.
MS. BREDEHOFT: All right. Now, if Ms. Heard had just given 350,000 each year, what would the amount have been as of December 2018?
TERENCE DOUGHERTY: It would be 350,000, 350,000, 350,000, so that's 1,050,000.
MS. BREDEHOFT: Okay. And so she was, effectively, 250,000 ahead of that, as of December 2018, correct?
MS. BREDEHOFT: After Mr. Depp filed suit against Amber Heard on March 1, 2019, were there any payments that Ms. Heard made to the ACLU toward her $3.5 million pledge?
TERENCE DOUGHERTY: No additional payments.
MS. BREDEHOFT: Now, this was also shown to you by Mr. Chew in one of his documents. I'm just -- it's ACLU Document 3037, with 12/11/2018, $350000, Designation: Donation from Amber Heard, Anonymous.
MS. BREDEHOFT: Do you see that?
TERENCE DOUGHERTY: I do.
MS. BREDEHOFT: Now, the ACLU continues to recognize Amber Heard as an ambassador for the ACLU; is that correct?
TERENCE DOUGHERTY: We do. She - and she continues to be listed on our website.
MS. BREDEHOFT: Can a donor deduct a donation before they actually make the payment to the ACLU?
TERENCE DOUGHERTY: No. Yeah, a deduction cannot be taken prior to when the deduction is made. A deduction is taken with respect to a tax year, so the . deduction would have to be made within a tax year in order for it to be deducted that year.
MS. BREDEHOFT: Okay. Now, you also testified earlier about different sources of donations, and you said that someone can make a donation in honor, to fulfill someone else's pledge.
MS. BREDEHOFT: Do you recall that testimony?
TERENCE DOUGHERTY: Person can make a donor in honor of someone else. And when I said in honor of a person," I was more referring to, you know, in memory of a person or in honor of, you know, a new executive director of an organization, people make donations in honor of them.
TERENCE DOUGHERTY: But a person certainly can make a gift and say that I would like to make this gift to the organization because I know that this other person has committed something to the organization and I'd like to pay that amount. A person can do that
MS. BREDEHOFT: Now, was it your understanding, with the letter from Ms. Weitz, that Mr. Depp was making a $100,000 payment on behalf of Amber Heard's $3.5 million pledge?
TERENCE DOUGHERTY: Yes. That gift from - was in connection with the amounts that Amber said that she wanted to contribute to the organization.
MS. BREDEHOFT: And it's been your testimony, I think, that there was an error in not including that in your Salesforce; is that correct?
TERENCE DOUGHERTY: Correct.
MS. BREDEHOFT: Okay. Now, is it also your understanding that Elon Musk made the $500,000 payment towards Amber Heard's $3.5 million pledge?
TERENCE DOUGHERTY: Yes. We don't know that with absolute certainty, but that is our organization's understanding.
MS. BREDEHOFT: Okay. And you credited it toward I Ms. Heard's pledge, correct?
TERENCE DOUGHERTY: Yes.
MS. BREDEHOFT: Does it matter, to the ACLU, where it comes from if it's tagged and said it's as part of this person's pledge?
TERENCE DOUGHERTY: We're always happy to receive funds from donors, and if a donor is unable to make a contribution of an amount that they said they intended to make, if they're able to have someone else make a contribution to the organization, that's completely fine by us.
MS. BREDEHOFT: It's still more money to the ACLU, correct?
TERENCE DOUGHERTY: Correct.
MS. BREDEHOFT: And its toward a pledge that youre hoping you can count on correct
TERENCE DOUGHERTY: Toward a pledge in the weak form of it, which is that someone is making an intention. It would not be able to be satisfied in connection with a legally binding pledge.
MS. BREDEHOFT: Well, you did credit the $500,000 toward Amber Heard's pledge, correct?
TERENCE DOUGHERTY: Yes, we did.
MS. BREDEHOFT: And although you didn't initially credit the $100,000 payment by Mr. Depp towards her pledge, you agree that that should have been credited towards Amber Heard's pledge as well, correct?
TERENCE DOUGHERTY: Correct.
MS. BREDEHOFT: We saw a document that Mr. Chew showed you a short while ago that indicated that Elon Musk made some other significant contributions, including $1 million and $5 million that were separate and apart from the 500,000, correct?
TERENCE DOUGHERTY: Correct.
MS. BREDEHOFT: Now Mr Depp Mr Chew asked you if the ACLU benefited from the fact that Amber Heard pledged or donated the 3.5 million And I think your answer was that you benefit whenever there is donations made and the publicity associated with it What, if anything, would the ACLU have had if Amber Heard pledged or donated 1.3 million, as opposed to 3.5 million?
TERENCE DOUGHERTY: If I understand your question correctly, I think that it is always a positive O thing to report on donation made to the ACLU.
MS. BREDEHOFT: Mr. Dougherty, you testified to a number of documents about the op-ed and the back-and-forths with the attorneys and everything else.
MS. BREDEHOFT: Are you aware of any evidence, in any stage of the op-ed drafts, through publication, that Amber Heard did not rely on her counsel's advice?
TERENCE DOUGHERTY: From what I know, Ms. Heard involved her attorneys and made changes to the op-ed based on the advice of her attorneys.
MS. BREDEHOFT: And so, my question is, are you aware I of any evidence that would suggest that Amber Heard did not rely on the advice of her attorneys?
TERENCE DOUGHERTY: Based on my investigation, I'm not aware of a situation where she did not rely on her attorneys.
MS. BREDEHOFT: Thank you.
MS. BREDEHOFT: And I'm going to make a reference to their Exhibit Number 31, this is -- just call it Exhibit 31, Mr. Chew put it in. Gerry Johnson was O writing an email, and he listed a number of topics.
MS. BREDEHOFT: Was it your understanding that the ACLU chose a number of those topics, of course subject to Amber's approval but it was their idea on some of these issues, to address in the op-ed?
TERENCE DOUGHERTY: My understanding is that those were ACLU issues that Gerry Johnson came up with that might have been issues that could be covered in the op-ed.
THE COURT: All right.
THE COURT: I assume, for your next witness, it's a remote witness, correct? And I assume it will I take longer than 30 minutes; is that a fair assumption?
MS. LECAROZ: Yes, that's right, Your Honor.
MR. MONIZ: Yes, Your Honor. I think it will take a little longer than 30 minutes.
THE COURT: I think what I propose, . 8 ladies and gentlemen, what I might have you do is take an extended lunch until 2:30, because I have an obligation at 2. So then that means, though, that we would go through until 5 :30 tonight.
THE COURT: Is that agreeable with everybody on the jury? Is that agreeable with everybody here? Let's go ahead and do that. Let's go ahead and give you a lunch break until 2:30, okay?
THE COURT: Do not discuss the case, and do not do any outside research, okay? Thank you.
THE COURT: All right. So be in recess until 2.
MS. BREDEHOFT: Thank you, Your Honor.
COURT BAILIFF: All rise.
COURT BAILIFF: All rise. Please be seated and come to order.
THE COURT: All right. Are we ready for the jury?
THE COURT: Okay.
THE COURT: All right. Thank you, ladies and gentlemen.
THE COURT: All right. Your next witness.
MR. DENNISON: Yes, Your Honor. Plaintiff calls Edward White.
THE COURT: Okay. Thank you.
THE COURT: EDWARD WHITE, being first duly sworn, was examined and testified as follows: Good afternoon, sir.