DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS 

DUE TO SPOLIATION OF EVIDENCE

(Case No. 06-5195)– Page 1 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

AMERICAN CIVIL LIBERTIES UNION 

OF WASHINGTON FOUNDATION

901 Fifth Avenue #630

Seattle, Washington 98164

(206) 624-2184

Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT

WESTERN WASHINGTON

AT TACOMA DIVISION

MAJOR MARGARET WITT,

Plaintiff,

v. 

UNITED STATES DEPARTMENT OF 

THE AIR FORCE; ET AL., 

Defendants.

No. C06-5195 RBL 

DECLARATION OF SHER KUNG 

IN SUPPORT OF MOTION FOR 

SANCTIONS DUE TO 

SPOLIATION OF EVIDENCE

NOTE ON MOTION CALENDAR: 

AUGUST 6, 2010 

ORAL ARGUMENT REQUESTED

Pursuant to 28 U.S.C. § 1746, I, Sher Kung, hereby declare as follows:

1. I am counsel for the plaintiff and have personal knowledge of the facts contained 

in this Declaration.

2. Attached hereto as Exhibit A is a chronology of events relevant to this motion, 

created to aid the court in following the timeline of events. 

3. Attached hereto as Exhibit B is a true and correct copy of excerpts from the 

deposition of Lieutenant General Charles E. Stenner, dated May 17, 2010. 

4. Attached hereto as Exhibit C is a true and correct copy of excerpts of Defendants’ 

Objections and Responses to Plaintiff’s First Requests for Admission, Interrogatories, and 

Requests for Production. 

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 1 of 86
DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS 

DUE TO SPOLIATION OF EVIDENCE

(Case No. 06-5195)– Page 2 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

AMERICAN CIVIL LIBERTIES UNION 

OF WASHINGTON FOUNDATION

901 Fifth Avenue #630

Seattle, Washington 98164

(206) 624-2184

5. Attached hereto as Exhibit D is a true and correct copy of excerpts from the 

deposition of Colonel Mary L. Walker, dated January 8, 2010. 

6. Attached hereto as Exhibit E is a true and correct copy of excerpts from the 

deposition of Colonel Janette Moore-Harbert, dated February 25, 2010. 

7. Attached hereto as Exhibit F is a true and correct copy of excerpts from the 

deposition of Captain Jill Robinson, dated March 16, 2010. 

8. Attached hereto as Exhibit G is a true and correct copy of document AF027162, 

the CDI memo from Colonel Janette Moore-Harbert to Lieutenant Colonel Patrick Kearney, 

dated 24 January 2008, which was produced by Defendants (filed under seal).

9. Attached hereto as Exhibit H is a true and correct copy of documents AF027164-

AF027168, a the Incident Report Summary issued by McChord AFB, which includes a 

transcription of the Tacoma Police Report, which was produced by Defendants (filed under seal).

10. Attached hereto as Exhibit I is a true and correct copy of document AF027163, 

the Investigating Officer’s Report from Lieutenant Colonel Patrick Kearney to 446 AES/CC, 

dated 4 February 2008, which was produced by Defendants (filed under seal).

11. Attached hereto as Exhibit J is a true and correct copy of AF027091 and 

AF027098, excerpts from the “AFRC Courts-Martial and Serious Incident Report,” dated 

January 2008, which was produced by Defendants (filed under seal).

12. Attached hereto as Exhibit K is a true and correct copy of AF027136, excerpts 

from the “AFRC Special Interest Cases,” dated May 2008, which was produced by Defendants 

(filed under seal).

13. Attached hereto as Exhibit L is a true and correct copy of excerpts from the 

deposition of Major General Eric Crabtree, dated March 24, 2010. 

14. Attached hereto as Exhibit M is a true and correct copy of AF001613, a memo 

from Major General Duignan to 4 AF/CC, dated July 7, 2004, which was produced by 

Defendants.

15. Attached hereto as Exhibit N is a true and correct copy of AF000153, a letter 

dated July 27, 2004, from James Lobsenz to Major Adam Torem. 

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 2 of 86
DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS 

DUE TO SPOLIATION OF EVIDENCE

(Case No. 06-5195)– Page 3 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

AMERICAN CIVIL LIBERTIES UNION 

OF WASHINGTON FOUNDATION

901 Fifth Avenue #630

Seattle, Washington 98164

(206) 624-2184

16. Attached hereto as Exhibit O is a true and correct copy of excerpts of Plaintiff’s 

Second Set of Requests for Production of Documents and Things. 

17. On May 10, 2010, government counsel, Sarah Dunne and I participated in a 

telephonic conference to discuss outstanding discovery matters. Attached hereto as Exhibit P is 

a true and correct copy of a letter dated May 11, 2010, from Sarah Dunne to Bryan Diederich, 

memorializing the May 10 conversation. 

18. Attached hereto as Exhibit Q is a true and correct copy of a letter dated May 12, 

2010, from Bryan Diederich to Sarah Dunne. 

19. Attached hereto as Exhibit R are true and correct copies of Defendants’ cover 

letters for supplemental productions of documents, dated June 11, 16, and 18. 

20. Attached hereto as Exhibit S is a true and correct copy of a letter dated June 24, 

2010, from Bryan Diederich to Sarah Dunne. 

21. On July 1, 2010, government counsel, Sarah Dunne and I participated in a 

telephonic conference to discuss our understanding of Defendants’ actions to locate, search and 

preserve documents as detailed in their June 24 letter. Attached hereto as Exhibit T is a true and 

correct copy of a letter dated July 2, 2010 from Sarah Dunne to Bryan Diederich, memorializing 

the conversation. 

22. Attached hereto as Exhibit U is a true and correct copy of a letter dated July 9, 

2010, from Bryan Diederich to Sarah Dunne. 

23. Attached hereto as Exhibit V is a true and correct copy of a letter dated July 14, 

2010, from Sarah Dunne to Bryan Diederich. 

24. Attached hereto as Exhibit W is a true and correct copy of a memorandum dated 

June 21, 2010, from the Air Force to Major Margaret Witt, including attachments. 

25. Attached hereto as Exhibit X is a true and correct copy of a records request dated 

June 28, 2010, and an Honorable Discharge certificate sent to Plaintiff. 

26. Attached hereto as Exhibit Y is a true and correct copy of excerpts from the 

deposition of Major Margaret Witt, dated May 24, 2010. 

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 3 of 86
DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS 

DUE TO SPOLIATION OF EVIDENCE

(Case No. 06-5195)– Page 4 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

AMERICAN CIVIL LIBERTIES UNION 

OF WASHINGTON FOUNDATION

901 Fifth Avenue #630

Seattle, Washington 98164

(206) 624-2184

27. Attached hereto as Exhibit Z is a true and correct copy of AF000402, the cover 

page of the Record of Board Proceedings of Major Margaret Witt dated 28 & 29 September 

2006, which was produced by Defendants. 

28. Attached hereto as Exhibit AA is a true and correct copy of AF001612, a 

memorandum dated 7 July 2004, from Major General Eric Crabtree to Adam Torem, which was 

produced by Defendants. 

29. Attached hereto as Exhibit BB is a true and correct copy of AF000009, a 

memorandum dated 5 Nov 2004, from Colonel Mary L. Walker to Major Margaret Witt, which 

was produced by Defendants. 

I declare under penalty of perjury that the foregoing is true and correct, and that this 

Declaration was executed on July 22, 2010 in Seattle, Washington. 

 /s/ Sher S. Kung______________ 

Sher Kung, WSBA # 42077 

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 4 of 86
DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS 

DUE TO SPOLIATION OF EVIDENCE

(Case No. 06-5195)– Page 5 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

AMERICAN CIVIL LIBERTIES UNION 

OF WASHINGTON FOUNDATION

901 Fifth Avenue #630

Seattle, Washington 98164

(206) 624-2184

CERTIFICATE OF SERVICE

I hereby certify that on July 22, 2010, I electronically filed this Declaration of Sher Kung in 

Support of Motion for Sanctions Due to Spoliation of Evidence with the Clerk of the Court using 

the CM/ECF system which will send notification of such filing to the following:

Peter Phipps 

peter.phipps@usdoj.gov

Marion J. Mittet

Jamie.Mittet@usdoj.gov

Bryan R. Diederich

bryan.diederich@usdoj.gov

Stephen J. Buckingham 

Stephen.Buckingham@usdoj.gov

Attorneys for Defendants

DATED this 22nd day of July, 2010. 

AMERICAN CIVIL LIBERTIES UNION OF 

WASHINGTON FOUNDATION

By: /s/ Nina Jenkins 

Legal Program Assistant

Nina Jenkins 

901 Fifth Avenue #630 

Seattle, WA 98164 

Tel. (206) 624-2184 

njenkins@aclu-wa.org 

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 5 of 86
EXHIBIT A 

6

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 6 of 86
Witt v. U.S. Air Force et al.

Chronology of Significant Events In Support of 

Plaintiff’s Motion for Sanctions Due to Spoliation of Evidence 

Date Subject Source

June 14, 2004 A third party civilian notifies the Air Force that 

Maj Witt has engaged in homosexual conduct 

Kung Decl. Ex. Y (16:1-

17:23) 

? 

Col Crabtree receives “order” from Air Force 

Reserve Headquarters concerning Maj Witt

Kung Decl. Ex. L

(14:21-15:17, 16:6-10) 

? 

Crabtree seeks authorization from Maj Gen 

Duignan, 4th AF, forwarding him evidence of the 

allegations

Kung Decl. Ex. L

(28:13-22, 29:16-23) 

July 7, 2004 Maj Gen Duignan authorizes a fact-finding inquiry 

after review of evidence

Kung Decl. Ex. M

July 7, 2004 Crabtree appoints Maj Adam Torem to conduct a 

fact-finding inquiry 

Kung Decl. Ex. AA

July 27, 2004 James Lobsenz gives notice of his representation 

of Maj Witt to the JAG investigation officer 

Kung Decl. Ex. N

July 27, 2004 Defendants are on notice that Witt intends to 

challenge any adverse actions. Defendants do not 

put a litigation hold on any key decision makers. 

Kung Decl. Exs. P, Q, S, 

T, U, V 

Nov 5, 2004 Witt is suspended from duty and is notified of the 

administrative discharge action against her

Kung Decl. Ex. BB

Oct 2005 Col Moore-Harbert becomes commander of 446th

AES

Kung Decl. Ex. E 

(18:16-18) 

Apr 12, 2006 Witt files complaint in District Court, naming as 

defendants the Dept of the Air Force, Secretary of 

Defense, Donald Rumsfeld, Dept of the Air Force 

Michael Wynne, and Commander of the 446th

AES, Col Mary Walker. 

Dkt. No. 1

Apr 24, 2006 Witt files declarations of fellow 446th AES 

members in support of the Complaint 

Dkt. Nos. 9-18

7

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 7 of 86
Apr 24, 2006 Defendants do not put a litigation hold on party 

defendants, key decision makers, or any 446th AES 

unit members. Defendants instruct someone at Air 

Force Reserve Headquarters and someone at the 

446th Air Wing to segregate Maj Witt’s personnel 

file, the inquiry file, and documents relating to her 

discharge proceedings

Kung Decl. Exs. P, Q, S, 

T, U, V 

Sept 28-29, 

2006 

Witt Discharge Board Proceedings at Robins AFB Kung Decl. Ex. Z

July 10, 2007 Secretary of the Air Force directs that Witt be 

discharged with an Honorable discharge 

Dkt. No. 84 (Dunne 

Decl. Ex. C)

July 12, 2007 Reserve Order issued discharging Witt with 

“Honorable Conditions Discharge” 

Dkt. No. 84 (Dunne 

Decl. Ex. D)

Sept 2007 Crabtree leaves McChord Kung Decl. Ex. L (10:4-

5) 

Oct 23, 2007 Domestic incident at the residence of SM-C and 

SM-D 

Kung Decl. Ex. E (84:5-

11); Ex. F (40:2-23); Ex. 

H 

Oct 23, 2007 Defendants supplement Ninth Circuit record with 

July 10 Action document but fail to disclose the 

July 12 Reserve Order

Dkt. No. 84 (Dunne 

Decl. Ex. C)

Oct 25, 2007 McChord Incident Report Summary issued 

containing transcription of Tacoma Police Report 

concerning domestic incident, in which SM-C 

makes homosexual statement. 

Kung Decl. Ex. H 

? 

Moore-Harbert receives police report Kung Decl. Ex. E (84:5-

11); Ex. F(45:2-17) 

? 

Moore-Harbert consults with JAG officer about 

administrative action based on possible 

fraternization

Kung Decl. Ex. E 

(84:18-21) 

Nov 5, 2007 Oral argument in Ninth Circuit Dkt. No. 49-2

8

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 8 of 86
Jan 24, 2008 Moore-Harbert orders LTC Patrick Kearney to 

investigate fraternization between SM-C and SMD, attaching a Police Blotter

Kung Decl. Ex. G

? 

Moore-Harbert issues SM-C a Letter of 

Admonishment and SM-D a Letter of Counseling 

Kung Decl. Ex. E 

(86:20-25); Ex. K 

? 

Moore-Harbert meets with SM-C and Robinson. 

Moore-Harbert tells SM-C that Robinson did not 

out her. 

Kung Decl. Ex. F 

(44:12-45:21) 

May 21, 2008 Ninth Circuit issues its decision requiring an 

individualized analysis under DADT 

 

Dkt. No. 49-2

May 21, 2008 Defendants do not put a litigation hold on party 

defendants, key decision makers, or any 446th AES 

unit members 

Kung Decl. Exs. P, Q, S, 

T, U, V 

June 10, 2009 Defendants searched and gathered documents 

related to this case, and confirmed that previously 

segregated documents were maintained

Kung Decl. Ex. U

Feb 23, 2010 Plaintiff propounds a Second Set of Requests for 

Production of Documents and Things to 

Defendants 

Kung Decl. Ex. O

May 10, 2010 Parties discuss outstanding discovery matters Kung Decl. ¶ 17, Ex. P

June 1, 2010 The Court grants Plaintiff’s motion to compel 

production of documents 

Dkt. No. 91

June 21, 2010 Air Force notifies Maj Witt of the amended order 

to correct the characterization of her discharge

Kung Decl. Ex. W

June 28, 2010 Air Force issues an Honorable Discharge 

certificate to Maj Witt

Kung Decl. Ex. X

July 1, 2010 Parties discuss file preservation and confirm that

Defendants did not place litigation holds on 

Defendants’ key decision-makers or 446th AES 

members

Kung Decl. ¶ 21, Exs. T, 

U, V

9

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 9 of 86
EXHIBIT B 

10

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 10 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 1

 U.S. DISTRICT COURT

 WESTERN DISTRICT OF WASHINGTON

 AT TACOMA

MAJOR MARGARET WITT,

 Plaintiff,

vs FILE NO.

 C06-5195 RBL

UNITED STATES DEPARTMENT OF THE

AIR FORCE; DONALD H. RUMSFELD,

Secretary of Defense; MICHAEL W.

WYNNE, Secretary of the Department

of Air Force; and COLONEL MARY L.

WALKER, Commander, 446th

Aeromedical Evacuation Squadron,

McChord AFB,

 Defendants.

_____________________________________/

 DEPOSITION OF

 LIEUTENANT GENERAL CHARLES EDWIN STENNER, JR.

 Monday, May 17, 2010

 8:50 a.m.

 Taken by counsel for the Plaintiff at:

 Robins Air Force Base

 Warner Robins, Georgia

Stenographically Reported By:

Gaye D. Traynor

Certified Court Reporter-B2209

State of Georgia

11

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 11 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 32

1 this deposition?

2 A Other than...

3 Q Other than counsel?

4 A No.

5 Q Okay. And for how long did you speak with

6 counsel?

7 A Over a period of two days, probably four or

8 five hours.

9 Q Okay. Do you understand that Major Witt is

10 seeking reinstatement to the Air Force Reserve, sir?

11 A I do not know.

12 MR. PHIPPS: Objection: Calls for a legal

13 conclusion.

14 BY MS. DUNNE:

15 Q Have you read the decision issued in this case

16 by the 9th Circuit in May of 2008?

17 A No.

18 Q What do you understand this case is now

19 about --

20 MR. PHIPPS: Objection.

21 A (No response.)

22 BY MS. DUNNE:

23 Q -- since the 9th Circuit issued its ruling?

24 MR. PHIPPS: Objection: Calls for a legal

25 conclusion, beyond personal knowledge, foundation.

12

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 12 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 34

1 MR. PHIPPS: If I instruct you not to answer,

2 and every now and then I may have to interrupt an

3 answer if it treads into an area of privilege. But, in

4 general, my objections simply preserve our ability to

5 raise that later. It would be convenient if we had a

6 Judge every time there was a deposition, but I'm

7 objecting.

8 THE WITNESS: Okay. Okay. You give me the

9 question again.

10 BY MS. DUNNE:

11 Q So I'm going to restate the question. What do

12 you think the parties are disagreeing over right now?

13 MR. PHIPPS: And I object: Lack of foundation

14 and seeks a legal conclusion.

15 THE WITNESS: I really don't know what the

16 disagreements are about. Okay.

17 BY MS. DUNNE:

18 Q Now, I'm going to ask you some questions with

19 respect to key individuals. Do you know Major General

20 Robert Duignon? Am I pronouncing that right?

21 A Duignon, D-U-I-G-N-O-N. Yes.

22 Q How would you characterize your relationship

23 with him?

24 A He preceded me in one of the jobs I had as the

25 Plans and Programs so I knew him. And then he worked for

13

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 13 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 35

1 me briefly when I took the job that I've got now.

2 Q Okay. When did he work for you? What dates?

3 A From June of 2008 until he retired in February

4 of 2009.

5 Q February 2009. Were you friends?

6 A Acquaintances.

7 Q Acquaintances. How frequently do you speak

8 with General Duignon --

9 A Duignon.

10 Q -- Duignon now since he's retired.

11 A I have not spoken to him since he retired.

12 Q Have you ever spoken to General Duignon

13 regarding Major Witt?

14 A No.

15 Q Have you ever spoken to the General -- General

16 Duignon regarding this litigation?

17 A No.

18 Q Do you know General John Jumper?

19 A Only by virtue of his position as the Chief of

20 Staff.

21 Q So if you know him at all, it's only

22 professionally?

23 A I've never had a conversation with him.

24 Q So you've never spoken to him regarding

25 Major Witt or this litigation?

14

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 14 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 36

1 A No.

2 Q How about General James Sherard? Do you know

3 him?

4 A Yes.

5 Q How would you characterize your relationship?

6 A He was my boss.

7 Q Oh. When was he your boss?

8 A For the entire period of time that he was the

9 Chief of Staff or the Chief of the Air Force Reserve.

10 Q So I think he was between -- I'm going to say

11 2000 to 2004, but I might be wrong on that.

12 A He actually had a six-year tenure.

13 Q Six-year?

14 A So whatever period of time that covers.

15 Q Okay. And would you characterize your

16 relationship? Are you friends?

17 A Acquaintances.

18 Q Acquaintances. Do you still socialize after

19 -- since he's retired?

20 MR. PHIPPS: Objection: Characterization.

21 THE WITNESS: Can you say that one more time?

22 BY MS. DUNNE:

23 Q Yes. Are you friends with General Sherard?

24 A Acquaintances.

25 Q Acquaintances. Have you spoken to him since

15

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 15 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 37

1 he retired in 2004?

2 A Yes.

3 Q How frequently do you speak with him?

4 A Very infrequently. Maybe twice.

5 Q Okay. Have you ever spoken to General Sherard

6 regarding Major Witt?

7 A No.

8 Q Have you ever spoken to General Sherard

9 regarding this litigation?

10 A No.

11 Q My next question is, do you know Lieutenant

12 General John Bradley?

13 A I do.

14 Q How would you characterize your relationship?

15 A Friends.

16 Q Friends? How frequently do you speak with

17 General Bradley?

18 A Very infrequently.

19 Q Since he's retired in 2008, how often have you

20 spoken?

21 A Maybe twice.

22 Q Have you ever spoken to General Bradley

23 regarding Major Witt?

24 A No.

25 Q Have you ever spoken to General Bradley

16

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 16 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 38

1 regarding this litigation?

2 A No.

3 Q Do you know General Crabtree?

4 A I do.

5 Q How would you characterize your relationship

6 with him?

7 A Boss.

8 Q Are you also friends as well?

9 A Acquaintance.

10 Q Acquaintance. How frequently do you speak

11 with General Crabtree?

12 A Weekly.

13 Q Weekly?

14 A Minimum.

15 Q Have you spoken to General Crabtree regarding

16 Major Witt?

17 A No.

18 Q Have you spoken to General Crabtree regarding

19 this litigation?

20 A No.

21 Q Have you ever met Major Margaret Witt?

22 A No.

23 Q What do you know about Major Margaret Witt?

24 A Only what I've seen regarding this -- this

25 circumstance.

17

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 17 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 39

1 Q Okay. So I'm going to try to ask a bunch of

2 questions then to get at -- because I don't want to know

3 what work product you've been given.

4 What do you know about her career in the Air

5 Force -- the Regular Air Force?

6 A Nothing.

7 Q Okay. What do you know about her career in

8 the Air Force Reserve?

9 A Nothing.

10 Q Okay. Have you, yourself, done any research

11 on Major Margaret Witt?

12 A No.

13 Q Have you interviewed anyone who served with

14 Major Witt about Major Witt?

15 A No.

16 Q Have you questioned anyone who served with

17 Major Witt about Major Witt?

18 A No.

19 Q Have you read any news articles about

20 Major Witt?

21 A No.

22 Q Have you read her person -- any documents from

23 her personnel file?

24 A No.

25 Q Have you ever communicated to Colonel Janette

18

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 18 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 40

1 Moore-Harbert about Major Witt?

2 A No.

3 Q Do you know who Colonel Janette Moore-Harbert

4 is?

5 A No.

6 Q It's Janette, J-A-N-E-T-T-E. And it's

7 Moore-Harbert, M-O-O-R-E hyphen H-A-R-B-E-R-T.

8 A Let me go back. I've seen that name.

9 Q Okay.

10 A Okay?

11 Q Have you ever directed one of your staff to

12 communicate with Colonel Moore-Harbert about Major Witt?

13 A No.

14 Q Have you ever directed one of your staff to

15 communicate with Colonel Moore-Harbert about this

16 litigation?

17 A No.

18 Q Do you know what unit Major Witt was assigned

19 to?

20 A Yes.

21 Q What is that unit?

22 A 446th AES.

23 Q And what's the home base for the 446th AES?

24 A McChord.

25 Q And not the nickname. Could I get the full

19

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 19 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 41

1 name?

2 A Of the base?

3 Q Uh-huh.

4 A McChord Air Force Base.

5 Q Okay.

6 A Well, okay, they are currently a joint base so

7 it's McChord-Lewis, and I can't tell you the way that

8 would be...

9 Q It's now joint base Lewis-McChord.

10 A Okay.

11 Q I'm not so much of a fan of any name.

12 Sir, what do you know about the 446th AES?

13 What's its primary mission?

14 A Aeromedical evacuation.

15 Q Do you know which airlift wing the 446th is

16 connected to? I would think of it as its host unit, if

17 I'm saying that right.

18 A It's the active-duty wing of McChord, and I

19 can't give you the number.

20 Q Okay. It's the 62nd Airlift Wing.

21 A Okay.

22 Q Have you ever communicated with anyone in the

23 62nd Airlift Wing about Major Witt?

24 A No.

25 Q Have you ever communicated with anyone in the

20

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 20 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 42

1 62nd Airlift Wing about this litigation?

2 A No.

3 Q What do you know, if anything, about the 446th

4 unit members and their social interactions with Major Witt

5 since she's been discharged?

6 A Nothing.

7 Q I have to ask these questions.

8 Have you ever served in the 446th AES?

9 A No.

10 Q Have you ever served with the 446th AES?

11 A No.

12 Q Have you ever visited the 446th at joint base

13 Lewis-McChord?

14 A Yes.

15 Q And when was that?

16 A It was last year, 2009. And I can't tell you

17 exactly when.

18 Q Uh-huh. Could you describe the unit culture

19 of the 446th AES?

20 A No.

21 MR. PHIPPS: Objection: Foundation but...

22 BY MS. DUNNE:

23 Q Have you ever served with the 4th Air Force?

24 A No.

25 Q Have you ever served...

21

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 21 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 44

1 commanders missions and how they executed those missions.

2 Q Did you do anything else?

3 A No.

4 Q No? Other than Major Witt, have you had any

5 experience with investigations, suspensions or discharges

6 of any service member on the grounds that they were

7 suspected of being gay or lesbian?

8 A No.

9 MR. PHIPPS: Objection: Characterization.

10 BY MS. DUNNE:

11 Q Have you ever served on an administrative

12 discharge board that was hearing a case involving

13 homosexual conduct?

14 A No.

15 Q Have you ever participated in a fact-finding

16 inquiry with respect to a service member concerning

17 homosexual conduct?

18 A No.

19 Q Have you ever served with a service member

20 that you knew to be gay or lesbian?

21 A No.

22 Q And by that, I mean they told you?

23 A No.

24 Q Have you ever served with a service member

25 that you suspected might be gay or lesbian?

22

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 22 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 45

1 A No.

2 Q Do you have any friends that are gay or

3 lesbian that you know of?

4 A No, no.

5 Q Do you have any relatives that you know of

6 that are gay or lesbian?

7 A No.

8 Q I'm asking this question in your personal

9 capacity only. What is your opinion of the "Don't Ask;

10 Don't Tell" policy?

11 A It's an Air Force policy.

12 Q Is there anything else? Do you have any other

13 opinion besides it's an Air Force policy in your personal

14 capacity? This is your personal feelings.

15 A I don't think I can separate my personal

16 feelings from my official capacity.

17 Q Do you plan to provide an expert opinion to

18 the Court on the current "Don't Ask; Don't Tell" policy in

19 your official capacity?

20 MR. PHIPPS: Objection: Vague.

21 A (No response.)

22 BY MS. DUNNE:

23 Q Do you plan to provide an expert opinion to

24 the Court as to the efficacy of the current "Don't Ask;

25 Don't Tell" policy?

23

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 23 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 58

1 A It degraded.

2 Q Degraded.

3 Same question but with respect to good order.

4 A Degraded.

5 Q Same question but with respect to discipline.

6 A Degraded.

7 Q Is there anything else -- you just shared

8 those experiences. Is there anything else that helped

9 form the opinion you state in D (1)?

10 A My experiences. Or that's what I said the

11 first time.

12 Q Uh-huh.

13 A I think that's my experience.

14 Q Have you done any particular research to

15 support the opinions that you stated in here?

16 A No.

17 Q So tell me if this is an accurate, fair

18 characterization; that your opinion in D (1) is based on

19 your 38 years of service in the military.

20 A Yes.

21 Q Besides your 38 years of experience in the

22 military, there's nothing else that the opinion you state

23 in D (1) is based on?

24 A No.

25 Q Have you ever asked Commanders or service

24

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 24 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 59

1 members how they felt about a uniform homosexual conduct

2 personnel policy?

3 A No.

4 Q Have you ever asked any Commanders or service

5 members whether they would accept a discretionary

6 personnel policy concerning homosexual conduct?

7 A No.

8 Q What if a different branch of the military

9 allowed certain service members to serve openly? Would

10 that be disruptive to unit morale and cohesion for Air

11 Force Reserve units?

12 A The key point is a policy that's applied

13 uniformly. That's what I'm talking about.

14 Q And so my question is a little bit different.

15 Let's say that a different branch, the Army or the Navy,

16 allowed certain service members who are gay or lesbian to

17 serve openly, that is, people could know they were gay or

18 lesbian. Would that be disruptive to unit morale and

19 cohesion for Air Force Reserve units?

20 A Don't know.

21 Q Don't know?

22 A The application of a policy -- uniform

23 application of a policy is what I'm talking about in here

24 as far as good order and discipline.

25 Q So if the Army had a policy that allowed

25

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 25 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 72

1 don't object to the openly gay service member because the

2 policies have been applied properly and uniformly?

3 MS. DUNNE: Objection: Vague. Objection:

4 Calls for a legal conclusion.

5 THE WITNESS: Any policy that exists that is

6 applied uniformly is good for the unit cohesion, good

7 order and discipline and all of the other pieces and

8 parts of how to generate a capability for the war

9 fighter.

10 BY MS. DUNNE:

11 Q Uh-huh. So I hear that, is it fair to say

12 that your objection is not with the fact of their

13 homosexuality. It's whether or not the policies are being

14 applied appropriately, correct?

15 MR. PHIPPS: Objection: Characterization.

16 THE WITNESS: Uniformly.

17 MR. PHIPPS: I'm going to object based on

18 characterization.

19 THE WITNESS: Uniform application of the

20 policy is absolutely appropriate for and necessary for

21 unit cohesion, good order and discipline.

22 BY MS. DUNNE:

23 Q Let me ask this. Is it your understanding

24 that if Air Force conduct policies are applied uniformly

25 and regularly as to homosexual conduct, that would

26

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 26 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 73

1 necessarily result in no gay or lesbian members serving

2 openly?

3 MR. PHIPPS: Objection: Vague, calls for

4 legal conclusion, calls for speculation.

5 THE WITNESS: A policy that's not applied

6 uniformly degrades. A policy that is applied uniformly

7 sustains unit cohesion, good order and discipline and

8 ultimately readiness for the war fighter.

9 BY MS. DUNNE:

10 Q Do you understand what I mean when I say the

11 term "serve openly." So gay or lesbian service members

12 serving openly. Do you understand when I use that term?

13 MR. PHIPPS: Objection: Vague.

14 A (No response.)

15 BY MS. DUNNE:

16 Q What -- how would you define a service member

17 who is gay or lesbian, i.e., engages in acts with a member

18 of the same sex but they are serving in their unit and

19 everyone knows of their sexual orientation? What's the

20 phrase you would use because I'm using...

21 A The other option is for you to define what you

22 mean by openly gay. So I'm -- because...

23 Q So, sir, when I say openly gay and lesbian,

24 that means somebody who's serving within their unit that

25 other unit members and the Commander know they're gay or

27

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 27 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 76

1 MR. PHIPPS: Objection: Assumes facts not in

2 evidence.

3 A (No response.)

4 BY MS. DUNNE:

5 Q You may answer the question.

6 A And the question was, whether I consider

7 myself highly qualified --

8 Q Highly qualified --

9 A -- prior to 1981?

10 Q -- prior to 1981.

11 A No.

12 Q What if you learned that discharge hearing

13 boards prior to 1981 would consider the service member's

14 fitness to serve and his effect on unit cohesion and

15 morale in deciding whether to retain or discharge the

16 service member who had admitted to homosexual conduct?

17 Would this alter your opinion that you're giving here

18 today?

19 A My opinion goes to the uniform application of

20 a policy. I stand on the fact that that uniform

21 application is what leads to good order and discipline.

22 Q Is it fair to say that you're not opining that

23 the military can't logistically have a discretionary

24 conduct policy concerning gays because it already had one

25 historically?

28

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 28 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 78

1 MR. PHIPPS: I'm going to object so I don't

2 interject again after we go to a question.

3 BY MS. DUNNE:

4 Q Have a uniform policy today; didn't have one

5 prior to 1981. Are you testifying today that you think it

6 is better for unit cohesion and morale to have a uniform

7 policy?

8 MR. PHIPPS: I'm going to object to

9 characterization and vagueness.

10 THE WITNESS: Okay. I'm not -- you know, how

11 you use the word uniform is appropriate. I believe the

12 uniform application of that policy is absolutely

13 necessary to sustain and maintain good order and

14 discipline, unit cohesion and subsequent readiness of

15 an individual unit.

16 BY MS. DUNNE:

17 Q Okay. Is there anything -- let me ask you

18 this: Do you believe the U.S. military is incapable of

19 having discretionary conduct policies -- physically and

20 logistically can't have a discretionary conduct policy?

21 A I do. I believe that the policy has to be

22 uniformly applied cross the board.

23 (Plaintiff's Exhibit 5 marked for

24 identification.)

25 BY MS. DUNNE:

29

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 29 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 82

1 Q So that unit is not -- that unit that may be

2 currently allowing gays and lesbians to serve openly is

3 not consistent with current Air Force homosexual conduct

4 policies?

5 MR. PHIPPS: Objection: Calls for a legal

6 conclusion.

7 THE WITNESS: The uniform application of a

8 policy is required.

9 BY MS. DUNNE:

10 Q Okay. Looking back to Exhibit 2, I'm looking

11 at specifically paragraph 2 -- D (2). It's on page 3 and

12 goes over to page 4.

13 I'm going to get into a little bit more what

14 we were just talking about, the differences between the

15 components.

16 So you state in D (2): Because there must be

17 a seamless integration between the Air Force Reserve and

18 the Regular component, there is a need for parity in their

19 personnel policies, including the homosexual conduct

20 policy. It is exception for unit cohesion, morale, good

21 order, and discipline that similar rules of conduct apply

22 to Air Force Reservists and to Regular active-duty

23 members. Is that -- is that your opinion?

24 A It is.

25 Q What's the basis for your opinion?

30

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 30 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 83

1 A My experience.

2 Q Can you -- so, please, describe what in your

3 38 years of service helps you come to the opinion that you

4 came to in D (2).

5 A Having worked in all three components --

6 Q Uh-huh?

7 A -- or with all three components. Working in

8 two, working with the third and having moved many times,

9 that experience in the seamless integration of those three

10 components is absolutely essential for good order and

11 discipline.

12 Q I'm going to break that apart a little bit so

13 the Court -- what do you mean by seamless integration?

14 A I mean the ability to train to the same

15 standards and execute working together is seamless

16 integration.

17 Q Are there challenges that the Regular Air

18 Force and the Reserves face in creating seamless

19 integration?

20 A Always challenges as far as how to ensure we

21 are trained and ready. The financial challenges, airspace

22 challenges. But execution-wise it works very well.

23 Q And maybe I'll ask it this way. What are the

24 -- and can you explain a little bit more? What are the

25 differences between the Reserves and the Regular Air

31

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 31 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 88

1 geographic region, I mean the state of Washington -- would

2 not be consistent with uniform -- with a uniform

3 application of policy across all geographic regions where

4 the Air Force serves?

5 A I don't know that. I don't know.

6 Q You don't know? Okay.

7 I'm going to turn to your third opinion that

8 specifically involves Major Witt. In D (3) on page 4

9 states: Major Witt's discharge from the Air Force

10 Reserves furthers basic military functionality as well as

11 unit cohesion, morale, good order and discipline because

12 if she were not discharged, that would mean that Air Force

13 personnel policies were not uniformly applied across

14 geographical boundaries, which would disrupt unit

15 cohesion, morale, good order, and discipline.

16 What's the basis for that opinion?

17 A My experience.

18 Q Is there anything particular in your

19 experience that leads you to that opinion?

20 A No specific instance.

21 Q Have you done any research? Read any studies?

22 A No.

23 Q When you say "basic military functionality,"

24 what do you mean?

25 A I mean execution of the mission.

32

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 32 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 94

1 Q How does Major Witt's discharge promote unit

2 cohesion as you've just defined it?

3 A The uniform application of the policies that

4 led to the actions that have been taken are what are most

5 important for unit cohesion, good order and discipline.

6 Q Is there any other way in which her discharge

7 promotes unit cohesion?

8 MR. PHIPPS: Objection: Scope of expert

9 testimony, foundation.

10 THE WITNESS: Uniform application. I'll go

11 back to that. The personnel policies that exist.

12 Uniform application of those policies is necessary for

13 good order and discipline and unit cohesion.

14 BY MS. DUNNE:

15 Q And I'm just trying to understand the basis

16 for your opinion or, I guess, just trying to understand as

17 Peter just said, the scope.

18 So you're only testifying -- you know what:

19 Let me strike that.

20 There's no other -- besides the uniform

21 application of the policy, you're not testifying as to any

22 other basis as to how her discharge promotes unit

23 cohesion; is that correct?

24 A I can -- I can go back to this, and it would

25 be predischarge. If she weren't discharged, then the

33

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 33 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 95

1 policies had not been uniformly applied.

2 Q So it sounds like because I'm trying to --

3 trying to make sure we get this accurate -- so it sounds

4 like from what you just said, you're testifying it's your

5 opinion that because there wasn't a uniform -- or, sorry.

6 You're testifying that -- I'm trying to see if

7 there's anything else that you're testifying with respect

8 to how her discharge promotes unit cohesion. And it

9 sounds to me like you're just saying that it's the uniform

10 application of personnel policies, and that's it. There's

11 nothing else.

12 This is what I'm trying to understand, if

13 there's anything else that you have to testify about with

14 respect to unit cohesion, how her discharge promotes unit

15 cohesion besides the application of -- besides the uniform

16 application of conduct policies.

17 A I believe that to be true.

18 Q Okay. How do you define "unit morale"?

19 A How the unit feels about itself and how they

20 perceive they're doing the job and how they get along.

21 Q How do you define "good order" in terms of a

22 unit?

23 A Proper procedures, proper implementation of

24 standards.

25 Q And how do you define "discipline" as you've

34

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 34 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 96

1 used it -- the term here in D (3)?

2 A The ability to be consistent, to be

3 disciplined about and to be consistent with the execution

4 of the jobs that are outlined for each unit.

5 Q Okay. Okay. So getting back to unit morale,

6 how does her -- how does Major Witt's discharge further

7 unit morale?

8 A The discipline that was in the system and the

9 process that was followed to the conclusions were within

10 the guidelines and the standards and the processes and the

11 execution of those personnel policies.

12 Q Is your opinion based on the -- when I say the

13 unit, the 446th? Or do you mean the 446th and other units

14 within the Air Force Reserves?

15 A I'm talking about all units.

16 Q And specific to the 446th, is it correct to

17 say that Major Witt's discharge furthers unit morale

18 because it's consistent with the uniform application of

19 conduct policies?

20 A That uniform application of that led us to the

21 proper application of the standards that were there.

22 Q Is there anything -- is there anything else

23 about Major Witt's discharge that furthers unit morale?

24 MR. PHIPPS: Objection: Foundation, scope of

25 expert opinion.

35

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 35 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 97

1 THE WITNESS: The discharge being the end

2 state. Uniform application of the personnel policies

3 and the processes sustain good order and discipline.

4 BY MS. DUNNE:

5 Q Are you providing any -- do you plan to

6 provide any expert testimony on how Major Witt's -- if --

7 or I should say the reinstatement of Major Witt may

8 further or not further unit morale?

9 MR. PHIPPS: Objection: Vague, misleading.

10 THE WITNESS: Due process took us to the

11 discharge board. And the uniform application of those

12 personnel policies --

13 BY MS. DUNNE:

14 Q Uh-huh?

15 A -- is what I'm talking about.

16 Q And so just to answer this question, do you

17 plan to provide any testimony to the Court as to whether

18 Major Witt's reinstatement furthers or does not further

19 unit morale?

20 MR. PHIPPS: Objection: Vague, misleading and

21 the document speaks for itself.

22 THE WITNESS: No, I don't.

23 BY MS. DUNNE:

24 Q And then how does Major Witt's discharge

25 further unit good order? And I'm saying unit. You say

36

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 36 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 98

1 good order here. Is that -- let me rephrase that.

2 How does Major Witt's discharge further good

3 order for the unit?

4 A If we look at what it was that I stated, if

5 she were not discharged, we would not have been through

6 the uniform application of the personnel policies.

7 Q Is there any other reasons that you plan to

8 testify to as to how Major Witt's discharge furthers unit

9 good order besides the uniform application of the policy?

10 A The discharge -- and, again, I'll just read it

11 to you -- if she were not, that would mean the Air Force

12 personnel policies were not uniformly applied.

13 Q Uh-huh. And how does Major Witt's discharge

14 further unit discipline?

15 A If she had not been discharged, we would not

16 have applied uniformly the policies and processes that

17 need to be followed.

18 Q Is there any other reasons in your opinion

19 that Major Witt's discharge furthers unit discipline

20 besides the application of the uniform policy?

21 MR. PHIPPS: Objection: Scope of expert

22 opinion, foundation.

23 THE WITNESS: Personnel policies and the

24 uniform application thereof led to an appropriate

25 action which sustains unit morale and good order and

37

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 37 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 99

1 discipline.

2 BY MS. DUNNE:

3 Q So it sounds like there's no other reasons

4 that Major Witt's discharge furthers unit discipline

5 besides the uniform application of the conduct policies?

6 MR. PHIPPS: Objection: Characterization,

7 scope of expert opinion, lack of personal knowledge.

8 THE WITNESS: The discharge board did what

9 they did based on the facts that they had and sustained

10 good order and discipline in appropriately applying

11 those policies.

12 BY MS. DUNNE:

13 Q Uh-huh. For the -- for your opinion with

14 respect to how Major Witt's discharge furthers unit

15 morale, was the basis of your opinion your 38 years of

16 experience in the military?

17 A The good order and discipline and the morale

18 was sustained and maintained because we applied the

19 personnel policy that in my 35 -- 38 years is most

20 appropriate.

21 Q And so to get at that opinion that you just

22 stated, is there anything else besides your 38 years of

23 military experience that allows you to offer that opinion

24 to the Court?

25 Were there research studies that you've looked

38

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 38 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 100

1 at? Any academic studies that you can -- that you

2 reviewed in forming the opinions that you set forth in

3 Exhibit 2?

4 A No.

5 Q With respect to D (2), your opinion that you

6 gave in paragraph D (2)?

7 MR. PHIPPS: This is Exhibit...

8 A (No response.)

9 BY MS. DUNNE:

10 Q I'm sorry, Exhibit 2, and then I'm

11 specifically looking at paragraph D, subsection 2, pages 3

12 and 4. Besides your experience of 38 years in the

13 military, is there any other research that you've done to

14 support the opinion that you give in paragraph D (2)?

15 A No.

16 Q No. Have you interviewed service members?

17 A No.

18 Q Sir -- okay. There has been testimony in this

19 case that there are several members of the 446th who are

20 gay and lesbian, and other unit members are aware of their

21 sexual orientation.

22 There's also been testimony that the current

23 Commander of the 446th knows of their sexual orientation.

24 And, for example, that Commander disciplined one same-sex

25 couple within the unit for fraternization but did not

39

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 39 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 102

1 evidence before the witness.

2 THE WITNESS: I don't know about those.

3 BY MS. DUNNE:

4 Q So given that you don't know about those, so

5 let's assume -- okay, let's assume you learn this, right,

6 because this is what's going to come at trial. I mean,

7 the Judge -- let's just assume. We'll raise it as a

8 hypothetical right now.

9 Let's say that we're dealing with the 446th

10 and that hypothetically you learned the current Commander

11 knows there are gays and lesbians in the unit. They've

12 been disciplined for fraternization but not under "Don't

13 Ask; Don't Tell," same-sex couples.

14 How do you reconcile your opinions given today

15 with her behavior?

16 A Who's behavior?

17 Q The Commander.

18 MR. PHIPPS: I'm going to object as

19 misleading.

20 THE WITNESS: I don't know anything about what

21 it is you're saying.

22 BY MS. DUNNE:

23 Q So what if you did learn? Because the Judge

24 may ask you. What if you did learn, sir, that the current

25 unit has gay and lesbian members who have been disciplined

40

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 40 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 106

1 Q Are you aware that there's testimony in this

2 case from multiple unit members that believe her discharge

3 negatively affected unit morale and cohesion?

4 A No.

5 Q If you were made aware of such testimony that

6 they had testified that basically they love Major Witt,

7 she does a great job, they don't care about her sexual

8 orientation, they think her discharge was wrong, they

9 don't have any problem with her being reinstated, does

10 that change your opinions at all that you gave here today?

11 A I stand on the opinions that I gave that a

12 uniform policy -- a uniform application of a policy is

13 necessary for good order and discipline.

14 Q Are you aware that the only evidence thus far

15 that Major Witt's discharge furthers unit cohesion and

16 morale is a statement made by the current Commander and

17 then your opinion here today?

18 MR. PHIPPS: Objection: Characterization,

19 misleading.

20 THE WITNESS: My opinion stands that we

21 followed a process that got us to a point, and it was

22 the uniform application of that process that leads to

23 the good order and sustains the good order and

24 discipline.

25 BY MS. DUNNE:

41

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 41 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 114

1 THE WITNESS: I don't know.

2 BY MS. DUNNE:

3 Q Do you know if Canada is a member of NATO?

4 MR. PHIPPS: Same objection.

5 THE WITNESS: I don't know for 100 percent

6 certainty.

7 BY MS. DUNNE:

8 Q I guess I'll ask it this way. Do you know if

9 the United States military performs joint operations with

10 the Canadian military?

11 A Yes, we do.

12 Q Do you know whether or not Canada allow -- the

13 Canadian military allows their service -- allows gay and

14 lesbians to serve openly in their military?

15 A I don't know.

16 Q You don't know? I'm going to ask about the

17 French military. Do you know if the French military

18 allows gays and lesbians to serve openly?

19 A I don't know.

20 Q I'm going to ask about the German military.

21 Do you know whether the German military allows gay and

22 lesbian service members to serve openly?

23 A I don't know.

24 Q I'm going to ask about the United Kingdom. Do

25 you know if the United Kingdom allows gays and lesbian

42

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 42 of 86
fe59ee42-b5dd-11de-b8ed-ba3f031ab753

Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10

Bull Darity Hopson & Worley, LLC - Board Certified Court Reporters - 478-405-5565

Page 115

1 members to serve openly?

2 A I don't know.

3 Q Have you done any research on foreign

4 militaries and their personnel conduct policies with

5 respect to homosexuality?

6 A I've not.

7 Q Has the United States conducted any joint

8 military operations with Canada or the United Kingdom in

9 the last seven years?

10 A Yes, we have.

11 Q Can you give me -- what would those be? And

12 you don't have to name all of them. I'm thinking of two

13 in particular: Wars.

14 A How about OEF and OIF.

15 Q And for the record, could you explain what

16 those acronyms stand for?

17 A OEF is Operation Enduring Freedom and are

18 those contingency operations in Afghanistan.

19 And OIF is Operation Iraqi Freedom, and those

20 are by definition in Iraq.

21 Q When conducting joint military operations,

22 would U.S. service members ever serve side by side with

23 their NATO allied service members --

24 A Yes.

25 Q -- on a particular mission or assignment?

43

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 43 of 86
EXHIBIT C 

44

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 44 of 86
2 

3 

4 

5 

6 

7 

8 

-

~If (C; ~ ~ ~ IE_@ 

Nnv 1 9 20ng 

Carney 830\ey Spellman 

Judge Ronald B. Leighton 

9 

10 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

II MAJOR MARGARET WITT, 

12 Plaintiff, 

13 v. 

14 UNITED STATES DEPARTMENT OF 

THE AIR FORCE, et ai., 

15 

Defendants. 

16 

17 

) 

) 

) No. C06-5195 RBL 

) 

) DEFENDANTS' OBJECTIONS AND 

) RESPONSES TO PLAINTIFF'S FIRST 

) REQUESTS FOR ADMISSION, 

) INTERROGATORIES, AND 

) REQUESTS FOR PRODUCTION 

) 

) 

) 

) 

) 

18 ---------------------------------) 

19 Pursuant to Rules 33, 34, and 36 of the Federal Rules of Civil Procedure, defendants the 

20 Department of the Air Force; Robert M. Gates, the Secretary of Defense; Michael B. Donley, the 

21 Secretary of the Air Force; and Colonel Janette Moore-Harbert, the commander of the 446th 

22 Aeromedical Evacuation Squadron, McChord Air Force Base, hereby submit the following 

23 objections and responses to Plaintiff's First Requests for Admission, Interrogatories, and 

24 Requests for Production to Defendants. 

25 GENERAL OBJECTIONS 

26 1. Defendants object to the definitions and instructions in Plaintiff's First Requests 

27 for Admission, Interrogatories, and Requests for Production to Defendants to the extent that they 

28 contlict with or purport to expand upon Defendants' obligations under the Federal Rules of Civil 

(C06-5195-RBL) DEFENDANTS' OBJECTIONS 

AND RESPONSES TO PLAINTIFF'S FIRST 

REQUESTS FOR ADMISSION, INTERROGATORIES, 

AND REQUESTS FOR PRODUCTION - I 

UNITED STATES DEPARTMENT OF .IUS liLT 

CIVIL DIVISION, FEDERAL PROGRAMS BRANt'I1 

P.O. Box 883, BEN FRANKLIN STAIION 

WASHINGTON, D.C 20044 

(202) 616-8482 

 

45

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 45 of 86
If your response to this Request for Admission was "DENY" then pursuant to Rule 36(a)(4) state 

2 in detail why you cannot truthfully admit it and answer the following interrogatory: 

3 OBJECTION: Defendants object to this instruction to the extent that it purports to 

4 impose an obligation that is not contained in Rule 36(a)(4). Instead, Rule 36(a)(4) requires a 

5 detailed statement of "why the answering party cannot truthfully admit or deny it," only as an 

6 alternative to admitting or specifically denying the statement. Fed. R. Civ. P. 36(a)(4). 

7 INTERROGATORY NO.3 

8 Identify each person who either currently serves, or who has previously served, in the 446h 

9 Aeromedical Evacuation Squadron, who is of the opinion that the presence of a known lesbian 

10 within the 446th in the past had, or in the future would have, a negative impact on unit cohesion, 

11 unit moral or unit discipline, and state all the facts known to defendants regarding such opinion. 

12 When identifying each such person give their full name, rank, present duty assignment, present 

13 address, or ifnot known the person's last known address, any known telephone number (home 

14 and cell phone) and any known present email address (personal or military). 

15 RESPONSE: Defendants incorporate by reference their objections to Request for 

16 Admission No.3 as objections to this interrogatory. 

17 Defendants further object to this interrogatory because it asks two discrete questions: 

18 (i) an identification of the persons who holds an opinion that the presence ofa "known lesbian" in 

19 the 446th Aeromedical Evacuation Squadron would have a negative impact on unit cohesion, unit 

20 moral or unit discipline and (ii) an identification of all facts known to defendants regarding such 

21 an opinion. Accordingly, this inquiry constitutes two separate interrogatories under Rule 33(a). 

22 Defendants also object to this interrogatory as overly broad to the extent that it seeks 

23 information for time periods predating Margaret Witt's assignment to 446th Aeromedical 

24 Evacuation Squadron. 

25 Defendants further object to this interrogatory as overly broad to the extent that it seeks 

26 "all facts known to defendants regarding such opinion." 

27 Moreover, defendants object to this interrogatory to the extent that it seeks the disclosure 

28 of personal information protected by the Privacy Act. 

(C06-S19S-RBL) DEFENDANTS' OBJECTIONS 

AND RESPONSES TO PLAINTIFF'S FIRST 

REQUESTS FOR ADMISSION, INTERROGATORIES, 

AND REQUESTS FOR PRODUCTION - 9 

UNITED STATES DEPARTMENT OF JLJSTICT 

CIVIL DIVISION, FEDERAL PROGRAMS BRANCII 

PO Box 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044 

(202) 616-8482 

 

46

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 46 of 86
Subject to and without waiving these objections and the General Objections, defendants 

2 identify Colonel Janette Moore-Harbert and state that she is of the opinion that the presence of 

3 Margaret Witt, a known lesbian, would negatively affect unit cohesion, morale, and discipline. 

4 

5 If your response to Request for Admission No.3 was "DENY" then respond to the following 

6 Request for Production: 

7 REQUEST FOR PRODUCTION NO.3 

8 Produce every document which contains evidence supporting your denial. 

9 RESPONSE: Defendants incorporate by reference their objections to Request for 

10 Admission No.3 and Interrogatory No.3 as objections to this request for production. 

I I Defendants further object to this request for production to the extent that it seeks sensitive 

12 information regarding the status and/or evaluation of the readiness of military forces. 

13 Defendants also object to this request for production to the extent that it seeks documents 

14 that are outside of defendants' possession, custody, or control. 

15 Subject to and without waiving these objections, the General Objections and any 

16 applicable privileges, defendants are unaware of any documents responsive to this request, i. e" 

17 that contain evidence of which persons hold opinions described in Request for Admission No.3, 

18 

19 REQUEST FOR ADMISSION NO.4 

20 Admit or deny the truth of this statement: Defendants are unaware of the existence of any person 

21 who either currently serves, or who has previously served, in the 446th Aeromedical Evacuation 

22 Squadron, who has ever made any complaint of any kind regarding Major Witt's conduct or 

23 character. 

24 RESPONSE: Defendants object to this request for admission as unduly burdensome to 

25 the extent that it presupposes or requires information gathering that would be contrary to the 

26 chain-of-command functionality of the military and/or that would compromise unit morale and 

27 unit cohesion - Congress's stated goals underlying 10 U.S.C. § 654. 

28 Defendants also object to this request for admission because plaintiff s use of the term 

(C06-5195-RBL) DEFENDANTS' OBJECTIONS 

AND RESPONSES TO PLAINTIFF'S FIRST 

REQUESTS FOR ADMISSION, INTERROGATORIES, 

AND REQUESTS FOR PRODUCTION - 10 

UNITED STATES DEPARTMI;NT 01' .Il ISTICT 

CIVIL DIVISION, FEDERAL PROGRAMS BRANCII 

1',0. Box 883, BEN FRANKLIN S 1,\ liON 

WASHINGTON, J) C 20044 

(202) 616-8482 

 

47

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 47 of 86
Subject to and without waiving these objections and the General Objections, defendants 

2 state that no substantive answer is required to this interrogatory because their response to Request 

3 for Admission No.8 was not an admission. 

4 

S REQUEST FOR ADMISSION NO.9 

6 Admit or deny the truth of this statement: The reinstatement of Major Witt to service within the 

7 446th Aeromedical Evacuation Squadron would likely have a negative impact upon unit morale, 

8 cohesion or discipline. 

9 RESPONSE: Defendants object to this request for admission as unduly burdensome to 

10 the extent that it presupposes or requires information gathering that would be contrary to the 

I I chain-of-command functionality of the military and/or that would compromise unit morale and 

12 unit cohesion - Congress's stated goals underlying 10 U.S.C. § 654. 

13 Defendants object to the term "negative impact" as vague, capable of multiple meanings, 

14 and potentially misleading because it is unclear whether it refers to a person's overall impact or 

IS whether it refers to the specific impact of a particular act or attribute of that person. 

16 Defendants object to plaintiffs use of the term "unit" because it is vague and ambiguous, 

17 as to whether that term as used by plaintiff refers to only members of the 446th Aeromedical 

18 Evacuation Squadron or whether it applies to other groups of military personnel who on a given 

19 assignment are required to work together as a unit. 

20 Subject to and without waiving these objections and the General Objections, defendants 

21 admit the statement. 

22 

23 If your response to this Request for Admission was "ADMIT" then answer the following 

24 interrogatory: 

2S 

26 INTERROGATORY NO.9 

27 Identify every person known to defendants who holds the opinion that the reinstatement of 

28 Major Witt to service within the 446th Aeromedical Evacuation Squadron would likely have a 

(C06-SI9S-RBL) DEFENDANTS' OBJECTIONS 

AND RESPONSES TO PLAINTIFF'S FIRST 

REQUESTS FOR ADMISSION, INTERROGATORIES, 

AND REQUESTS FOR PRODUCTION - 23 

UNITED STATES DEPARTMENT OF JlJSTICE 

CIVIL DIVISION, FEDERAL PROGRAMS BRANCII 

POBox 883, BEN FRANKLIN STATION 

WASHINGTON, D.C 20044 

(202) 616-8482 

 

48

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 48 of 86
negative impact on the unit morale, cohesion or discipline of the 446th Aeromedical Evacuation 

2 Squadron. When identifying each such person give their full name, rank, present duty assignment, 

3 present address, or if not known the person's last known address, any known telephone number 

4 (home and cell phone) and any known present email address (personal or military). 

S RESPONSE: Defendants incorporate by reference their objections to Request for 

6 Admission No.9 as objections to this interrogatory. 

7 Defendants further object to this interrogatory's request that defendants identify "every 

8 person known to defendants" as overly broad and unduly burdensome to the extent that it requires 

9 an identification of any person, however unrelated to the facts of this litigation, who holds such an 

10 opinion. Defendants likewise object to this interrogatory as inconsistent with Federal Rule of 

II Civil Procedure 26(a) governing the disclosure of expert testimony and the Court's pretrial 

12 scheduling order setting an expert disclosure date of March 17,20 10. Defendants also object to 

13 this interrogatory to the extent that it seeks to learn information protected by the work-product 

14 doctrine. 

IS Moreover, defendants object to this interrogatory to the extent that it seeks the disclosure 

16 of personal information protected by the Privacy Act. 

17 Subject to and without waiving these objections and the General Objections, defendants 

18 identify Colonel Janette Moore-Harbert. 

19 

20 If your response to Request for Admission No.9 was "ADMIT"then respond to the following 

21 Request for Production: 

22 REQUEST FOR PRODUCTION NO.9 

23 Produce every document which contains evidence supporting your admission. 

24 RESPONSE: Defendants incorporate by reference their objections to Request for 

2S Admission No.8 and Interrogatory No.8 as objections to this request for production. 

26 Defendants further object to this request for production to the extent that it seeks sensitive 

27 information regarding the status and/or evaluation of the readiness of military forces. 

28 Defendants also object to this request for production to the extent that it seeks documents 

(C06-SI9S-RBL) DEFENDANTS' OBJECTIONS 

AND RESPONSES TO PLAINTIFF'S FIRST 

REQUESTS FOR ADMISSION, INTERROGATORIES, 

AND REQUESTS FOR PRODUCTION - 24 

UNITED STATES DEPARTMENT OF JUSTICE 

CIVIL DIVISION. FEDERAL PROGRAMS BRANCII 

1'.0. Box 883. BEN FRANKl IN S lATION 

WASHINGTON. D.C 20044 

(202) 616-8482 

 

49

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 49 of 86
EXHIBIT D 

50

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 50 of 86
UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

MAJOR MARGARET WITT, 

Plaintiff, 

v. 

UNITED STATES DEPARTMENT OF 

THE AIR FORCE, et al., 

Defendants. 

No. C06-5195 RBL 

DEPOSITION OF COLONEL MARY L. WALKER 

* * * 

January 8, 2010 

1120 N.W. Couch 

Portland, Oregon 

Cheryl L. Vorhees, CSR, RPR 

Court Reporter 

1 

51

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 51 of 86
Col. Mary Walker, 1/8/2010 witt v. u.s. Department of the Air Force 

1 Q Let me read her comments from this OER from 

2 Exhibit 13 into the record. "Exceptional flight nurse 

3 sith superb clinical skills in the aeromedical 

4 evacuation patient movement system; always ready to 

5 volunteer and support the mission whether in-garrison 

6 at home station or at deployed location; exhibited 

7 remarkable leadership skills as chief of Stan Eval, 

8 meticulously monitoring crew members, currency, 

9 qualification and proficiency ensuring 100 percent of 

10 squadron taskings met and outstandingly performed; 

11 member is unable to participate since November 2004 

12 due to pending administrative discharge." 

13 Is there anything in those comments that of 

14 your personal knowledge you can say I disagree with? 

15 A No. 

16 Q Okay. Have you ever held the opinion that 

17 Major Witt's presence in the 446 has a negative impact 

18 on unit cohesion or morale? 

19 A No. 

20 Q Have you ever held an opinion that if she 

21 were reinstated to the unit that she would by being 

22 reinstated have a negative impact on unit cohesion or 

23 morale? 

24 A 

2S Q 

Never thought about it. 

I think that I'm done. My practice is now if 

Schmitt & Lehmann, Inc. 

(360) 695-5554 ** (503) 223-4040 

145 

52

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 52 of 86
EXHIBIT E 

53

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 53 of 86
MAJOR MARGARET 

v . 

UNITED STATES 

AIR FORCE, et 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

) 

WITT, ) 

) 

Plaintiff, ) 

) 

) No. C06-5195 RBL 

) 

DEPARTMENT OF THE ) 

ai, ) 

) 

Defendants. ) 

DEPOSITI ON UPON ORAL EXAMINATION OF 

COLONEL JANETTE MOORE-HARBERT 

TAKEN AT 

Carney Badley Spellman 

701 Fifth Avenue, Suite 3600 

Seattle, WA 98104 

FEBRUARY 25, 2010 

THURSDAY, 9:00 A.M. 

Reported by: 

MARIE WHITE, CSR # WH-IT-EM-*29906 

54

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 54 of 86
1 Q. 

2 A. 

3 

4 

5 Q. 

6 A. 

7 Q. 

8 

9 A. 

10 Q. 

11 A. 

12 Q. 

13 A. 

14 Q. 

15 A. 

16 Q. 

17 

18 A. 

19 Q. 

20 A. 

21 Q. 

22 

23 A. 

24 

25 Q. 

Okay. 

I remember when I pinned on 0-6, but I literally --

there's so many time elements that are all together 

during that period of time. 

Mm-hmm. 

I don't remember the exact date. 

What was it you remembered in '06, when you became a 

full colonel? 

Yes, when I actually got -- the date, yes, in 2006. 

You said when I pinned on? 

Yes. 

That is the phrase for 

That is the phrase for when you get promoted to 0-6. 

Okay. 

Yes. 

And when were you -- my understanding is you were made 

Commander of the 446th some time in 2005? 

Correct, in October of 2005. 

October? 

Yes. 

You have been the Commander of the 446th ever since 

then? 

Yes, Commander, and I am also the Senior Air Reserve 

Technician, too. 

I'm going to ask you some questions. Go back now. 

18 

- 1_ 

55

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 55 of 86
1 Q. 

2 A. 

3 

4 

5 

6 

7 Q. 

8 

9 A. 

10 Q. 

11 

12 

13 A. 

14 Q. 

15 A. 

16 Q. 

17 A. 

18 

19 Q. 

20 

21 

22 A. 

23 Q. 

24 A. 

25 Q. 

I don't care whether they --

Again, when I look at from the standpoint of an 

association, no, I do not remember anybody that I have 

had as a connection with. It is again it is possible 

that they were, I just it is not something that I'm 

asking or recognizing. 

79 

So first of all, no one ever came to you who was in the 

military and said I am gay or lesbian; right? 

That's correct. 

At any point in your career has anyone in the Air Force 

or any other branch of the service come to you and say 

that they suspect that a person is gay or lesbian? 

I don't remember that happening. 

Really? 

I don't remember that happening. 

You don't remember? 

Someone coming to me to say that I believe that this 

person is gay. 

In your thirty-two years do you remember having any 

responsibilities that caused you to learn that somebody 

was gay or lesbian other than Major Witt? 

To learn that? 

Yes. 

I don't remember of that happening. 

And using suspect the way I said it, that is that it 

56

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 56 of 86
1 

2 

3 

4 

5 

6 

7 A. 

8 Q. 

9 

10 A. 

11 

12 

13 Q. 

14 A. 

15 

16 

17 Q. 

18 

19 

20 A. 

21 

22 

23 Q. 

24 A. 

25 Q. 

crosses your mind to think this person probably is of 

this sexual orientation. In thirty-two years other 

than Major Witt have you ever suspected any other 

person in the Armed Forces to be gay or lesbian? 

MR. PHIPPS: Objection , characterization and 

form. 

I don't know. 

You don't remember ever suspecting any such person? 

MR. PHIPPS, Objection, vague. 

My focus is I focus on the fact that I try to keep 

myself professional. I am not interested in finding 

out. 

I am not asking if you're interested. 

And from the standpoint of I don't lead myself down 

that line of trying to say I am going to suspect one 

way or the other. 

So are you saying that you actively prevent yourself 

from considering the possibility whenever you meet 

anyone, you just don't want to consider it? 

I don't think that is an important avenue unless it 

brought to me specifically against that criteria that 

we discussed with the military. 

Okay. 

That there is a concern. 

How about outside the military? 

80 

57

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 57 of 86
1 Q. 

2 

3 

4 

5 A. 

6 Q. 

7 

8 

9 

10 

11 A. 

12 

13 

14 Q. 

15 

16 

17 

18 A. 

19 Q. 

20 A. 

21 Q. 

22 A. 

23 Q. 

24 

25 

83 

Okay, but so in the case of your husband's friend, 

apparently, your husband's friend was living with 

another man, and that was one of the things that caused 

you to suspect? 

Yes. And that was many years ago. 

Okay. And are you telling me that you in your 

thirty-two years in the military have never had 

occasion to learn that a woman in the military was 

living with another woman in the military in what 

appeared to be a relationship? 

In my thirty-two years of being in the military 

assuming that because two woman are living together 

does not in my mind assume that they're gay. 

That isn't quite what I asked. But in the thirty-two 

years that you have been in the military have you had 

occasion to have it be made known to you that two women 

are living together and having a relationship? 

No. 

That has never happened? 

Not that I can remember. 

What about ? 

Okay, what about ? 

It never happened? You never learned that 

was living with another woman and having a 

relationship with another woman? 

SM-C SM-C SM-C

58

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 58 of 86
1 A. 

2 Q. 

3 A. 

4 

5 Q. 

6 

7 A. 

8 

9 

10 Q. 

11 A. 

12 Q. 

13 A. 

14 Q. 

15 A. 

16 

17 

18 Q. 

19 A. 

20 

21 

22 Q. 

23 A. 

24 Q. 

25 

......... 

I was never told that she was having a relationship. 

Did you learn that she was living with another woman? 

My understanding was that they were renting from each 

other. 

How did you learn that they were renting and living 

together? 

There was a report that came in regarding a conflict 

that occurred, an argument that occurred that involved 

the police. 

Wasn't it a Domestic Violence Report? 

That was what was brought to me. 

Wasn't it a Domestic Violence Report? 

I don't know. 

Didn't it state that right on the report? 

I don't remember if it said domestic violence. I know 

that the concern was was because of the conflict that 

came between the two of them. 

What did you learn about that incident? 

I reported, I talked to the JAG about the issue, my 

concern was fraternization of an officer and an 

enlisted. 

You were concerned 

And that was my concern. 

You were concerned that an officer shouldn't live with 

an enlisted person under their Command? 

...... .... ... 

84 

59

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 59 of 86
1 A. 

2 Q. 

3 

4 A. 

5 Q. 

6 A. 

7 Q. 

8 A. 

9 Q. 

10 A. 

11 Q. 

12 

13 

14 

15 A. 

16 Q. 

17 

18 A. 

19 

20 

21 

22 

23 

24 

25 Q. 

That's correct. It is a fraternization issue. 

Does it cross your mind that they were having a sexual 

relationship? 

Did it cross my mind? 

Yes. 

No, my focus was fraternization. 

It didn't cross your mind? 

My focus was fraternization. 

Did it cross your mind? 

My focus was fraternization. 

Did it cross your mind that they were having a sexual 

relationship? 

I don't care what your focus was. 

Did it cross your mind? 

No, because my issue was fraternization. 

Okay, and did you learn how they came to be living 

together? 

I had someone that I actually bad initiation of what 

was called a command directive investigation on the 

issue of fraternization. And I don't know how they 

came together. The issue was the fact that the 

fraternization issue of the two of them renting, one 

renting from the other, the officer and the enlisted, 

was inappropriate. 

Didn't you learn that -- what is the name of the other 

85 

60

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 60 of 86
1 

2 A. 

3 Q. 

4 A. 

5 Q. 

6 

7 A. 

8 Q. 

9 A. 

10 

11 

12 

13 Q. 

14 

15 A. 

16 

17 Q. 

18 

19 A. 

20 Q. 

21 A. 

22 Q. 

23 A. 

24 

25 

..... 

woman? It was Carlson and the other woman was? 

. 

? 

That's correct? 

Did you learn how where had been 

before she was with the 446th? 

No. 

You never learned that? 

She was -- she came into our squadron as a 

. And the only thing in that I knew 

was that she was also what is called a 

. 

You didn't learn why she came and transferred to the 

446th? 

No, I was unaware why she came, she came over and was 

hired as the . 

So no one ever suggested to you that she came in order 

to live with ? 

Nope. 

Okay. Did you discipline either of these people? 

Yes, I did. 

Who did you discipline? 

I gave , it's now, a 

Letter of Admonishment for the fraternization issue. 

And got a Letter of Counseling. 

• 

86 

SM-D SM-D SM-D SM-C SM-C SM-D SM-C

61

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 61 of 86
1 A. 

2 Q. 

3 A. 

, 

5 Q. 

6 

7 A. 

8 

9 Q. 

10 A. 

11 Q. 

12 A. 

13 

l' Q. 

15 

16 A. 

17 Q. 

18 A. 

19 

20 Q. 

21 

22 

23 A. 

2' 

25 Q . 

.... 

He confirmed fraternization. 

That is not what I am asking. 

I don't have the Police Report in front of me. He 

confirmed fraternization. 

Okay. To you that means that he confirmed they lived 

together in the same house? 

He confirmed that an officer and an enlisted were 

living together. 

Anything else he confirmed? 

Not in the COl. 

Did he confirm they had a domestic incident? 

I don't have the report in front of me to be able to 

refer to. 

Who did he interview? 

MR. PHIPPS: Objection, foundation. 

Again I don't have the report. 

You don't remember who he interviewed? 

It more than likely would have been the parties 

involved. But I don't have it in front of me. 

Okay. And after you got the report did you at that 

point have any reason to suspect that either one of 

these women was a lesbian? 

Suspect based off of the criteria that we talked about 

suspect? 

Suspect the way that I have consistently asked you the 

• 

92 

62

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 62 of 86
SM-C

SM-C

1 

2 A. 

3 

4 Q. 

5 

6 A. 

7 Q. 

8 A. 

9 Q. 

10 

11 A. 

12 

13 

1. Q. 

15 A. 

16 

17 Q. 

18 

19 A. 

20 Q. 

21 

22 A. 

23 Q. 

24 

25 A. 

I , 

question about suspect. Did it cross your mind? 

And in this particular instance, I am using suspect 

based off of the criteria. 

Okay, but I'm not . 11m asking you after you read this 

report did it cross your mind? 

I don't know. 

is still with the unit? 

Yes, she is. 

Did this incident cause in your opinion any morale 

problems in the unit? 

I don't know that the information went out in the unit 

regarding this. This is not something that we will 

discuss --

You think nobody else knows it? 

I have no idea. I don't go out and tell the unit of 

the incident? 

93 

So you have no sense of whether anyone else in the unit 

knows about it? 

That's correct . 

When you gave the Letter of Admonishment to 

was anyone else present? 

There was. I can't remember who it was. 

Did you instruct whoever it was to keep it secret and 

not tell anyone? 

Well, it's an action that occurs between a Commander 

--

63

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 63 of 86
EXHIBIT F 

64

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 64 of 86
UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON AT TACOMA 

MAJOR MARGARET WITT, ) 

) 

Plaintiff, ) 

) 

vs. ) 

) 

UNITED STATES DEPARTMENT OF ) 

THE AIR FORCE; COLONEL MARY L.) 

WALKER, Commander 446th ) 

Aeromedical Evacuation ) 

Squadron, McChord Air Force ) 

Base; and JAMES G. ROCHE, ) 

SECRETARY, DEPARTMENT OF THE ) 

AIR FORCE, ) 

) 

Defendants. ) 

C065195RBL 

DEPOSITION UPON ORAL EXAMINATION OF JILL ROBINSON 

APPEARANCES: 

FOR THE PLAINTIFF: 

FOR THE DEFENDANTS: 

JAMES E. LOBSENZ 

CARNEY, BADLEY, SPELLMAN 

701 FIFTH AVENUE, SUITE 3600 

SEATTLE, WASHINGTON 98104 

PETER J. PHIPPS 

STEPHEN J. BUCKINGHAM 

U.S. DEPARTMENT OF JUSTICE 

20 MASSACHUSETTS AVENUE NW 

WASHINGTON, DC 20044 

MARCH 16, 2010 

65

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 65 of 86
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Q 

A 

Q 

A 

Q 

A 

Q 

Robinson Jill 03-16-2010 

40 

with her partner, or ... Yeah. 

How did you first learn about the alleged domestic 

violence incident? 

I saw bruises on 's arm. 

Did then did you ask about that? 

Yes. 

What did she say? 

Myself and Leslie Pellegrini were in the office and 

asking her about it, and she stated that she's fine, 

that she was fine. And bruises were there. And it carne 

back to be centered on that had caused the 

bruises. And then from there, I believe what was 

transpired was there ended up being an exercise that 

went overseas to Hawaii that the majority of the 

squadron went on, and then at that point somebody had 

stated that I had gone in and up-channeled information 

related to up the chain of the Air Force. And 

approached me about it asking why. And I had no 

part of up-channeling of any information. So, ... There 

was an accusation made that I had turned her in, I had 

access to Col. Moore-Harbert's office while she was gone 

as the commander on this deployment and floated this 

upward. 

So, is this right, basically approached you, 

approached you and accused you of outing her? 

Carrie J. Dehuff, RPR CSR - Groshong Quaintance - 253-838-1282 

SM-DSM-DSM-C SM-C SM-C SM-C

66

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 66 of 86
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

Robinson Jill 03-16-2010 

Yes. 

You said that it began with a discussion I guess 

somewhere in the building in the office about bruises. 

At that point, did you know prior to that day that 

lived with ? 

Yes. 

41 

Prior to that day, did you believe and to 

be having a relationship? 

Yes. 

And I take it that's something never told you; 

right? She never said, "I am a lesbian"? 

Correct. 

And never said, "I am a lesbian"? 

Correct. 

But it's something you believed? 

Correct. 

Prior to this day that you saw the bruises on 

, did you know anything about how 

and had corne to be together? 

I believe it was started as, I believe -- and this is 

where I can be wrong, that it was on a deployment 

overseas. 

That they met? 

Yes. 

Had you ever been to their house that they shared? 

Carrie J. Dehuff, RPR CSR - Groshong Quaintance - 253-838-1282 

SM-D SM-D SM-D SM-D SM-D SM-C SM-C SM-C SM-C

67

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 67 of 86
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

Robinson Jill 03-16-2010 

42 

Yes. 

Had you been to their house prior to there domestic 

violence incident? 

Yes. 

One thing I didn't understand is you mentioned something 

about an exercise that the whole unit was on, an 

exercise; is that what you said? 

Yes. There was -- I forgot the -- I don't remember the 

name of it. But it was over in Hawaii. And so 

Col. Moore-Harbert was over there along with many other 

people. And there was only a few people in the squadron 

back here just coming in to do their requirements. 

So, I don't understand. What happened while you were in 

Hawaii that's related to this? 

I wasn't in Hawaii. I was at the squadron. 

Okay. 

And so what came back was while I was at the squadron, 

was also there, and all doing our own independent 

things. And then I got a call while I was at home from 

her stating that information had gotten back to people 

in Hawaii that I had up-channeled information. 

Oh, I see. 

And so, I -- Yeah, I spent a good couple hours talking 

to about it, and I don't ... 

So, at this point, when most of the unit is in Hawaii, 

Carrie J. Dehuff, RPR CSR - Groshong Quaintance - 253-838-1282 

SM-CSM-C

68

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 68 of 86
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

l7 

18 

19 

20 

21 

22 

23 

24 

25 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Robinson Jill 03-16-2010 

43 

you and are not in Hawaii? 

Correct. 

And when you're saying you spent a couple hours talking 

to , is that in person or over the phone? 

Over the phone. 

I take it in this conversation is upset? 

Yes. 

Angry at you? 

Maybe. Confused. Not understanding why I got 

information. 

And because you're the executive assistant, you have 

access to the commander's desk; is that right? 

I do not. 

You do not? 

I do not. 

But thought you did? 

Correct. Or there was, there was a belief assumed that 

I did, therefore I was the one that was responsible for 

the information getting out there, and that I had 

up-channeled it. 

So, you told , I take it, "I did not up-channel 

it. I did not tell Moore-Harbert anything"? 

I -- Right. I mean, Col. Moore-Harbert was over there, 

and I went through the whole explanation of my access, 

my inability to get access to that information. I don't 

Carrie J. Dehuff, RPR CSR - Groshong Quaintance - 253-838-1282 

SM-C SM-C SM-C SM-C SM-C

69

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 69 of 86
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

l3 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Robinson Jill 03-16-2010 

have access to her office. Don't have access to the 

information that she thought was forwarded upward. 

So, you told this? 

Correct. 

And what did she say? 

I felt as though I lost a friendship. 

Did she say whether she believed you or not when you 

said, "I didn't do this"? 

No, I don't believe that she actually said anything. 

was a matter of I was put in a place to convince. 

Then what happened? 

I spoke to Col. Moore-Harbert about it when she got 

back 

What did --

-- and asked her to explain it to , that I don't 

have this information. 

And was she willing to do that? 

Yes. 

Did she do that? 

I believe she did. 

What makes you say you believe that she spoke to --

-- because I was there when the three of us talked. 

So --

44 

It 

-- And so it was explained in her office that while this 

allegation was there, that I wasn't the source, that I 

Carrie J. Dehuff, RPR CSR - Groshong Quaintance - 253-838-1282 

SM-C SM-C

70

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 70 of 86
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Q 

A 

Robinson Jill 03-16-2010 

45 

didn't have access. 

Did Col. Moore-Harbert explain what was the source of 

her information? 

No. 

Did she mention the police report? 

The police report was part of what the source was, but I 

don't recall her actually explaining it to about 

the specific police report. I remember the 

conversations that when reports come through with 

domestic violence and the police officers arrive at the 

house and they're military, it still gets crossed over 

to the military side. So, that I recall is information, 

and so ... 

That information that the police share their reports 

with the military, was that information, did it come 

from Col. Moore-Harbert or someone else? 

I believe it came from Col. Moore-Harbert. 

In this three-person conversation, did you form an 

opinion as to whether was convinced that you were 

not the person who outed her? 

I don't think she'll ever be convinced. 

You don't? 

(Non-verbal negative response.) 

So, did it permanently damage the friendship? 

Uh-huh. 

Carrie J. Dehuff, RPR CSR - Groshong Quaintance - 253-838-1282 

SM-C SM-C

71

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 71 of 86
EXHIBIT G 

(filed under seal) 

72

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 72 of 86
EXHIBIT G 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

73

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 73 of 86
EXHIBIT H 

(filed under seal) 

74

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 74 of 86
EXHIBIT H 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

75

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 75 of 86
EXHIBIT H 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

76

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 76 of 86
EXHIBIT H 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

77

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 77 of 86
EXHIBIT H 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

78

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 78 of 86
EXHIBIT H 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

79

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 79 of 86
EXHIBIT I 

(filed under seal) 

80

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 80 of 86
EXHIBIT I 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

81

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 81 of 86
EXHIBIT J 

(filed under seal) 

82

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 82 of 86
EXHIBIT J 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

83

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 83 of 86
EXHIBIT J 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for

Sanctions due to Spoliation of Evidence.

84

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 84 of 86
EXHIBIT K 

(filed under seal) 

8585

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 85 of 86
EXHIBIT K 

(filed under seal) 

For document refer to Exhibits G-K to Declaration of Sher Kung in Support of Motion for 

Sanctions due to Spoliation of Evidence.

86

Case 3:06-cv-05195-RBL Document 116 Filed 07/22/10 Page 86 of 86