HomeMy WebLinkAboutEx 28 Tamara Crisp Vol 2 Dec 18 2020.pdfDeposition of Tamara Crisp - Vol. II
In Re: TracFone Wireless, Inc.
December 18, 2020
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In Re: TracFone Wireless, Inc.Tamara Crisp - Vol. II
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
________________________________________________________
RE: )
)
TracFone Wireless, Inc. )
)
Administrative Appeal )
)
________________________________________________________
VIDEOCONFERENCE DEPOSITION UPON ORAL EXAMINATION
OF
TAMARA CRISP - VOLUME II
________________________________________________________
(All participants appearing via Zoom videoconference.)
Taken at
Spanaway, Washington
DATE TAKEN: December 18, 2020
REPORTED BY: KATHLEEN HAMILTON, RPR, CRR, CCR 1917
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1 A P P E A R A N C E S
2
APPEARING VIA ZOOM FOR THE APPELLANT:
3
SCOTT EDWARDS
4 GRANT S. DEGGINGER
Lane Powell PC
5 1420 Fifth Avenue
Suite 4200
6 Seattle, Washington 98111
206.223.7000
7 EdwardsS@LanePowell.com
deggingerg@lanepowell.com
8
9
APPEARING VIA ZOOM FOR THE CITY OF RENTON:
10
KARI L. SAND
11 Ogden Murphy Wallace P.L.L.C.
901 Fifth Avenue
12 Suite 3500
Seattle, Washington 98164
13 206.447.7000
ksand@omwlaw.com
14
15
16 * * * * *
17
18
19
20
21
22
23
24
25
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1 DEPOSITION OF TAMARA CRISP
2 EXAMINATION INDEX
3 EXAMINATION BY PAGE
4 MR. EDWARDS.............................................. 232
5
6
7 EXHIBIT INDEX
8 EXHIBITS FOR IDENTIFICATION PAGE
9 63 TracFone - TRS Emails Renton TracFone Audit 235
64 January 6, 2014 Audit/Tax Investigation Update - 256
10 Renton
65 Deposition of Tamara Crisp In Re: TracFone 257
11 Wireless, Inc. November 17, 2020
66 October 6, 2014 Audit/Tax Investigation Update - 262
12 Renton
67 Email from TRS to Iwen Wang sent October 24, 2014 292
13 68 Email from TRS to Iwen Wang sent February 2, 2015 292
69 January 5, 2015 Audit/Tax Investigation Update - 294
14 Renton
70 March 5, 2015 Audit/Tax Investigation Update - 298
15 Renton
71 West's RCWA 35.21.714 331
16 72 CITY OF RENTON, WASHINGTON ORDINANCE NO. 5944 363
17
18
19
20
21
22
23
24
25
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1 SPANAWAY, WASHINGTON; DECEMBER 18, 2020
2 9:04 a.m.
3 -o0o-
4
5 TAMARA CRISP witness herein, having been
6 first duly sworn on oath,
7 was examined and testified
8 as follows:
9
10 E X A M I N A T I O N
11 BY MR. EDWARDS:
12 Q. Good morning, Ms. Crisp. This is Scott Edwards.
13 We're here for day two of your deposition. And I'd like
14 to start by asking you to confirm your understanding of
15 what constitutes the audit file. Can you list the
16 things that -- that you understand are part of the audit
17 file?
18 A. Let's see. (Laughter). It's not that easy.
19 Let's see. We have -- I've learned that it's all the
20 emails, even the ones that the -- the taxpayer already
21 has. And it involves all the... the schedules, the --
22 and any documents that we produced, and, you know,
23 documents that we have written things down on that -- to
24 help produce the final result, I believe.
25 Q. So what -- you would agree that it includes all
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1 of the correspondence between TRS and the taxpayer
2 that's being audited?
3 A. Yes, I know that now, uh-huh.
4 Q. And it also includes all of the records that
5 were provided to TRS by that taxpayer?
6 A. Yes.
7 Q. Okay. And it also includes the correspondence
8 between TRS and TRS's client, in this case, the City of
9 Renton?
10 A. Yes.
11 Q. And, yeah, here the correspondence between TRS
12 and Renton consisted primarily of emails and monthly
13 reports; is that correct?
14 A. Uh-huh.
15 Q. And am I correct in understanding that all of
16 the monthly reports were transmitted by email?
17 A. Yes.
18 Q. And...
19 A. I believe Renton is the one that gave it
20 directly to you since they had all those things in their
21 possession. I wasn't really involved in that.
22 MR. EDWARDS: And then in -- so, Kari, in
23 that regard, we have received monthly reports for all or
24 virtually all of the months between July of 2013 and
25 March of 2020, but we have only received a handful of
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1 cover emails transmitting those reports. So --
2 THE WITNESS: Uh-huh.
3 MR. EDWARDS: -- it would appear that
4 there's -- there's some email between Renton and TRS
5 that has still not yet been produced.
6 MS. SAND: I can look into that further,
7 because, again, I asked for the complete audit file from
8 TRS and from the City and forwarded to you everything
9 that I received. But I will specifically ask about
10 transmittal emails with monthly reports attached.
11 MR. EDWARDS: I appreciate that. Thank you.
12 BY MR. EDWARDS:
13 Q. I'd like to start with the envelope that was
14 marked Exhibit B, which is the -- is going to be that
15 165-page Word document that we had -- that I'd mentioned
16 before we started.
17 MR. EDWARDS: And so the -- Court Reporter,
18 can you mark the -- that as Exhibit B. And actually
19 what I'd like to do is to send you a -- a version of it
20 that has Bates number -- the Bates numbering that we're
21 going to be talking to. So is that something that I can
22 send you by email?
23 THE REPORTER: (Nods affirmatively.)
24 MR. EDWARDS: Let me try do that right now.
25 MS. SAND: And will this be marked Exhibit
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1 63?
2 MR. EDWARDS: That's -- that's my
3 understanding.
4 (Exhibit No. 63 marked.)
5 MR. EDWARDS: And so... so I am sending that
6 with no text or signature, but it's going to the court
7 reporter, to Ms. Sand, and Mr. Degginger. And my outbox
8 is doing one of those spirally things, so --
9 MS. SAND: Okay.
10 MR. EDWARDS: -- hopefully that is on its
11 way.
12 And if each of you could confirm for me when
13 you've received it.
14 MS. SAND: Not yet.
15 THE WITNESS: Mr. Edwards, are you sending
16 it to us as well?
17 BY MR. EDWARDS:
18 Q. I sent it to you last night. It's the same
19 thing that I sent you.
20 A. So you want me to open it?
21 Q. No, I'm going to show on my screen.
22 A. Okay. Good.
23 Q. So, yeah. You have a paper copy of -- of that
24 is what is in envelope B.
25 A. Right.
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1 Q. The only difference between the paper copy that
2 you have and what I'm going to share on my screen is
3 that the one that I'm going to share on the screen has
4 added Bates numbering on the bottom so that -- that --
5 A. Okay.
6 Q. -- we can distinguish one page from the next
7 more easily.
8 A. So these --
9 MS. SAND: I have it from last night.
10 MR. EDWARDS: Okay. Kate, have you received
11 it yet?
12 THE REPORTER: (Responds in the negative.)
13 MR. EDWARDS: Your email address starts
14 Kathleen? Okay, so I think I got the right email
15 address.
16 MR. DEGGINGER: I just received it, Scott.
17 MR. EDWARDS: Yeah, it's a 165 PDF -- page
18 PDF, so it may take a while to get through people's
19 firewalls. But let me -- I'm going to go ahead and
20 share my screen unless -- what I'm going to be sharing
21 is -- and can everybody see this document?
22 THE WITNESS: Yes. Can you enlarge it a
23 little bit?
24 BY MR. EDWARDS:
25 Q. Let me --
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1 A. It's pretty tiny.
2 Q. Let me see what I can do in that regard.
3 MS. SAND: Check in the lower right corner
4 of the box and you'll be able to slide an arrow bar from
5 left to right to the plus side.
6 MR. EDWARDS: Yeah. And I'm not seeing a --
7 a box, which is part of my difficulty. Yeah, I was
8 looking for something like that, so let me see if I go
9 to view, zoom. Let's see. Is that a little bit better?
10 THE WITNESS: It's better.
11 MR. EDWARDS: Let me -- I can -- I'll get it
12 a little bit bigger than that too.
13 THE WITNESS: (Sotto voce comments.)
14 MR. EDWARDS: How is that?
15 THE WITNESS: That's much better.
16 MR. EDWARDS: Okay.
17 BY MR. EDWARDS:
18 Q. So I'm going to scroll down to the bottom and
19 you'll see, when I get to the bottom of the first page,
20 that -- this TRS 12-10-20-002. You see that at the
21 bottom of your screen on the left-hand side?
22 A. So we're at June 28th?
23 Q. I'm looking -- if you look at the very bottom of
24 the screen where I've highlighted, what I'm trying to
25 point out is the Bates numbering that's been added to
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1 the document. Do you see the Bates numbering on your
2 screen?
3 A. Yes.
4 Q. Okay.
5 A. Are you talking to me?
6 Q. Yes, I am.
7 A. Okay.
8 Q. This whole process is going to be me asking you
9 questions and you answering my questions.
10 A. (Laughter).
11 Q. So, Mrs. Crisp, I'm showing you -- I'm directing
12 you to what's been marked as Exhibit B which I'm also
13 sharing on my screen right now. Do you recognize this
14 document?
15 A. Yes.
16 Q. Is this a document that you prepared?
17 A. Yes.
18 Q. We received this document in connection with
19 this case in the -- it was a -- a Word document when we
20 received it. Did you prepare the Word document?
21 A. Yes.
22 Q. How did you prepare the Word document? What did
23 you do to create this document?
24 A. I copied the emails between TracFone and myself
25 with the time and date stamp, and I combined them into a
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1 Word document. I -- I redacted any business that had to
2 do with anything outside of the Renton audit and so
3 that... so that it would be available to you.
4 Q. Okay. When I look at the first page here at the
5 top, yeah, there is a -- the -- the name John Cavalieri
6 and then a email address. And then below that the next
7 line says To: Crisp@trs-integrity.com, and then there's
8 a date of Thursday, June 20th, 2013, at 3:02 p.m. Do
9 you see that?
10 A. Uh-huh.
11 Q. I notice that there's not a... There's not a
12 subject matter line here or in any of the other emails
13 that are reflected in this document. What happened to
14 the subject lines?
15 A. I didn't copy them.
16 Q. Why not?
17 A. I guess I was just focusing on content. I -- I
18 didn't think they were necessary.
19 Q. So what we've got is just excerpts from the body
20 of the emails, not the entirety of the emails; is that
21 correct?
22 A. Well, I believe they're the entirety of the
23 emails except the subject line and they are -- you know,
24 minus any redactions that had to be made for privacy
25 issues.
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1 Q. One of the things that reflects on an email when
2 there are attachments is the word "attachment" and the
3 name of the documents that were attached. In addition
4 to not having copied the subject line, you also did not
5 copy the attachment lines, did you?
6 A. Apparently I... I guess those would have been
7 below the email itself at the very bottom.
8 Q. Did you copy the attachment lines or did you not
9 copy?
10 A. No, I didn't. So you needed the subject line?
11 I'm writing this down. Line, subject line and the --
12 and the attachment line is what you wanted? I can see
13 how that would have been really helpful. I'm sorry.
14 Q. When we look at this first email on the first
15 page of the -- in the second line of the body it says:
16 Per your message you will provide a letter from the, and
17 there's a bracket, the word city, and another bracket.
18 A. Uh-huh.
19 Q. Are you the one that put the brackets in in this
20 document?
21 A. Yes, you can assume in the whole document any
22 time you see brackets I -- that was part of my
23 redacting.
24 Q. Can you describe the -- the process that you
25 used with respect to the -- the creation of brackets?
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1 A. Okay. I'm going to try to put this into
2 process. I would read the -- the email. If I saw
3 business or hints of business outside of this Renton
4 audit, I would put in brackets. I would adjust the word
5 to the closest word I could to keep it in the Renton
6 audit, and only referred to the Renton audit. And so if
7 I had to, you know, adjust a word, it would go inside
8 the bracket. Anything outside the brackets was already
9 there. And anything that's not part of the audit, the
10 Renton audit, would be removed with brackets showing
11 something was removed.
12 Q. So there's no bracket showing that you removed
13 the subject line, and there's no bracket --
14 (Inaudible due to crosstalk.)
15 THE WITNESS: -- right there. Except in,
16 you know, they do appear in -- if you go down the email
17 chain, they appear there, but the original audit, like
18 if there's a reply to this in this part of the email
19 chain.
20 BY MR. EDWARDS:
21 Q. Well, let's -- let's test that. The very first
22 email here there's no subject line; correct?
23 A. Right.
24 Q. If we go down to the second email from TRS to
25 JCavalieri, there's no subject line there either; right?
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1 A. Right.
2 Q. Okay. If we go to the top of the next page,
3 this is a email to TRS copying CDillon. Again there's
4 no subject line; correct?
5 A. Right.
6 Q. And if we go down to the next one below that,
7 there's again no subject line; correct?
8 A. Uh-huh.
9 Q. There are well over a hundred emails in this
10 document. There -- I think there is maybe one email
11 which is actually an email from the City that is
12 embodied in the body of an email that I believe is the
13 only place where there is a subject line.
14 A. No, I can find you other subject lines. Would
15 you like me --
16 Q. Well, we just looked at six emails none of which
17 have subject lines; correct?
18 A. If I felt that the email train was part of what
19 that email was about, I -- I -- I went ahead and copied
20 that again, and they show up there. But, I mean, I --
21 I'll admit, I didn't do the subject line, so that --
22 that was a problem on my part. I didn't even think
23 that -- that that would be a problem.
24 (Inaudible due to crosstalk.)
25 BY MR. EDWARDS:
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1 Q. Listen to my questions and answer my questions.
2 Did you remove the subject line from emails so that it
3 had not been produced, yes or no?
4 A. All -- it's not a yes-or-no question. I --
5 first of all, I did not remove the subject lines. I
6 just didn't copy them.
7 Q. Okay.
8 A. Secondly, you will find subject lines in -- in
9 email trails, but that's not sufficient obviously. I
10 should have done it for all of them. I apologize. If I
11 need to redact this and improve it, I'm very much
12 willing to figure it out.
13 Q. Are there brackets to reflect that you have
14 redacted the subject line?
15 A. No, I just didn't copy them so there was no
16 reason to redact.
17 Q. So what else have you not copied that we don't
18 know you didn't copy because there's nothing on the face
19 of this document to tell us that you chose not to copy
20 it?
21 A. I'm sorry, I did whole emails without the
22 subject line. That's consistent except in the email
23 train where the subject lines will appear, you can see
24 them later. But other than that, I neglected to copy
25 that, and apparently you also wanted the attachment
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1 lines, and I neglect to do that. I'm really on a
2 learning curve here. I've never been part of a legal
3 proceeding. I've never been asked to produce -- I mean,
4 all these years, never been asked to produce an audit
5 file. And I -- you know, I wish I could have had the --
6 the understanding I have now when I started, but I just
7 didn't and it seems like I'm constantly making mistakes,
8 and I apologize.
9 Q. The question was: What else did you not copy
10 and also not put in brackets to indicate that you had
11 not copied?
12 A. To my knowledge, you have everything, you know,
13 except those -- those two. Unless you can show me I did
14 differently, I didn't remove anything that I didn't show
15 brackets. That was my intention and that's -- that's
16 how I did it. That was my process.
17 Q. Okay.
18 So if we look at this first bracket and it has
19 the word "city", is it your testimony that that is --
20 that bracket is only replacing a single word?
21 A. I -- I put in brackets where I had to remove
22 content. Whether it's one word or many words, the
23 brackets just basically say content has been removed
24 here and the word I put in there is as close to what
25 would -- what the email would have said had there not
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1 been other business involved. So the... You know, it's
2 meant -- meant to obscure the other business, but I'm
3 not taking out things that have to do with the Renton
4 audit.
5 Q. It's -- it's possible that the word "city" here
6 could be a substitute for a single word. It's also
7 possible that the word city here could be replacing
8 several lines of text; is that correct?
9 A. Yeah, I think that that possibility is there
10 because in other emails there might be quite a bit that
11 had to do with something outside the Renton audit that
12 had to be removed. And I didn't... I -- I -- I say I
13 don't -- apologize for removing content that is not part
14 of the -- of the Renton audit. And as in this case,
15 whatever did have to do with the Renton audit was put in
16 a form that would most closely reflect what would have
17 been there had there been no other audit.
18 Q. But we have no way of being able to even
19 visually discern how much of the content of the text has
20 either been removed or altered; is that correct?
21 A. Yes, that is correct, except that you actually
22 have these emails and you can double-check me and find
23 out if I did it wrong or if there's something
24 objectionable. You can double-check me. But this is
25 the best I can do. We're doing, you know, this on the
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1 Renton audit. I am not going to expose other business
2 in the Renton audit file.
3 Q. I'm not asking you to expose other business.
4 I'm asking you questions about the process that you used
5 to create this document and trying to get clarity about
6 how much content was removed and altered from the actual
7 documents that were used to create this document.
8 A. Okay.
9 Q. When you produced this document to us, one of
10 the other things that was also produced was a zip file
11 that was titled Attachments. What was included in that
12 zip file?
13 A. Well, it was my intention, and hopefully I was
14 successful in including all the attachments that -- that
15 were attached to these emails.
16 Q. And how would somebody who is looking at the --
17 the documents in that attachment zip file be able to
18 determine which emails those documents were attached to?
19 A. You know, that's a really good point. And I
20 would suppose if I had thought of and even known I could
21 copy the attachment line on these emails, I -- I'm not
22 sure it's possible, so I can try if you need that. But
23 if I had put those attachment lines in, then you could
24 have seen which attachments went to which, wouldn't
25 it -- wouldn't you?
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1 MR. EDWARDS: Can you read back my question,
2 Court Reporter.
3 (Question was read back.)
4 BY MR. EDWARDS:
5 Q. Isn't the answer to that question they can't?
6 A. Sure. Not -- I mean, yeah, I see your point.
7 Q. The statement that you see my point is not an
8 answer to the question.
9 A. I thought "sure" kind of meant "yes"; right?
10 Q. Thank you.
11 So you have testified that where -- if we don't
12 see any brackets, we should be able to assume that you
13 had not changed or deleted any text; is that correct?
14 A. Yes.
15 Q. I'm going to move to the -- the second page of
16 the document. Having a hard time seeing what's page 1
17 and page 2 with this. The having this blown up makes
18 it -- my screen a little bit funkier here. But I
19 guess -- that's why, because it -- the email is starting
20 at the bottom of page 1, you'll see here the email from
21 TRS to Mr. Cavalieri on Friday, June 21st, 2013. Do you
22 see that?
23 A. Yes.
24 Q. And then if we go to the -- the body of the
25 email appears to be on the following page. And it says,
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1 "I have contacted [the city] and have asked them to send
2 you a letter stating that our company has been
3 contracted by them to conduct [the audit]." Do you see
4 that?
5 A. Yes.
6 Q. And this is another area where there is no email
7 that has been produced from TRS to the City of Renton
8 asking Renton to send such a letter. Do you know why
9 that is?
10 A. You know, there was a problem with this. This
11 is 2013. Because we were under the impression that we
12 had contacted the City and asked them to provide that
13 letter. We even -- I believe we produced a letter that
14 we had done and thought we attached to an email to the
15 City. And I -- what happened was they never sent that
16 letter as far as we can tell.
17 So I'm wondering if you haven't... if you
18 haven't found the email, perhaps we really had never
19 sent that email and we just thought we had. Like,
20 because they -- that letter, as far as I know, didn't
21 come until 2014 when we asked again. When I was working
22 on this audit file, I was really surprised that that
23 letter didn't go out when it did, when we thought it
24 had.
25 Q. I'd like to move now to the third page of
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1 Exhibit 63.
2 A. Okay.
3 Q. And before -- you'll see kind of in the middle
4 of page 2 it's started -- there's an email from TRS to
5 TracFone dated Friday, June 28th of 2013, and it starts
6 "Hi John, Hope things are going well with you."
7 A. Uh-huh.
8 Q. It says, "While we are waiting for your NDA, we
9 have compiled a list (below) of the initial items we
10 will need for the audit:" And then there are two
11 brackets with nothing in between them.
12 A. Uh-huh.
13 Q. Do these brackets reflect the -- the omission of
14 content that was unrelated to the Renton audit?
15 A. Yes, they do.
16 Q. Okay. And there's... It's not reflecting that
17 what was omitted could fit within those two brackets,
18 it's just a designation that there has been some amount
19 of omission --
20 A. Yes.
21 Q. -- with no way it indicate how -- how large or
22 small the amount of omission is; correct?
23 A. Right. This does not -- not belong in this
24 audit file. It doesn't have anything to do with the
25 Renton audit.
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1 Q. And then where it says, "For the City of
2 Renton:" this is text from that email that was specific
3 to the City of Renton; am I correct?
4 A. Yes.
5 (Inaudible due to crosstalk.)
6 THE WITNESS: -- specific to the City of
7 Renton.
8 BY MR. EDWARDS:
9 Q. Okay. And so none of this was altered by you as
10 part of preparing this document?
11 A. It shouldn't have been. I don't remember
12 altering it. I wouldn't have altered it on purpose, so
13 yes.
14 Q. Okay.
15 A. It is unaltered.
16 Q. When we move from page 2 to page 3, this is a
17 continuation of that same email; correct?
18 A. Yes.
19 Q. And we're in the part that is talking about the
20 City of Renton. It says, "An area was annexed on March
21 1st of 2008. We have enclosed a copy of the addresses
22 in the new annexed area." Do you see that?
23 A. Uh-huh.
24 Q. Is this an indication that there was an
25 attachment to that email that would have been the
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1 addresses that are referred to here?
2 A. Yes, but I don't remember that. Let me -- let
3 me write that down and check that out. We're talking
4 about the June 28, '13... '13 letter sending annex
5 addresses. Because I didn't see that in my attachment
6 file.
7 Q. I didn't see that in your attachment file
8 either, which is the question -- it appears to be an
9 attachment that was not produced. It is not my intent
10 to walk you through every instance, but there are many
11 instances where the body of the email makes reference to
12 an attachment and a review of the zip file titled
13 Attachments doesn't appear to have anything that would
14 seem to be the document that is being referred to.
15 A. Really? So I'll have to check. You didn't
16 happen to check to see if there was an attachment to
17 that in the original?
18 Q. This is your deposition. The way this works --
19 A. Okay.
20 Q. -- I ask you questions and you answer my
21 questions.
22 A. All right. I would like to check that. I made
23 a note. But it -- it certainly was my intention and --
24 and diligent effort to get every attachment sent that
25 was attached to it. So whether it just wasn't attached
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1 and I -- I just stated it was or whether I -- I missed
2 this, I don't know.
3 Q. I'm going to move forward now to page 11.
4 A. This is page 3?
5 Q. Yes.
6 A. That's 3.
7 Q. Okay. And I -- I'm showing it up on the screen
8 here, but I -- I want to direct your attention to the
9 bottom half of the amended page which is an email from
10 TRS to TracFone dated October 18th, 2013. And it says:
11 Here is a signed copy of the Non-Disclosure Agreement
12 with the City of Renton.
13 Do you see that?
14 A. Uh-huh.
15 Q. Again, can you explain why the attachment file
16 does not contain a copy of a signed no -- nondisclosure
17 agreement dated in October of 2013?
18 A. No. I know I started part way just -- part way
19 through doing the attachments. I thought I went back
20 and hit the ones that I had skipped initially. I was
21 just copying pasting the thing -- the emails. I thought
22 that there was like -- oh, it's more efficient to do it
23 as I go, and I thought I went back to the beginning and
24 started attaching things that -- that I missed. But I'm
25 kind of wondering, maybe I didn't go all the way back to
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1 the beginning. Do you have -- I'm wondering if there's
2 examples of that further on or if it's just at the
3 beginning of the file. I messed up on that.
4 MS. SAND: So, Mr. Edwards, we will be sure
5 to supplement. Ms. Crisp can provide these -- these
6 missing attachments after today's deposition. Right,
7 Mrs. Crisp?
8 THE WITNESS: Yeah, especially if it ends at
9 noon, I can do it right away. But the -- yeah, because
10 this... I thought I was being very thorough.
11 Apparently --
12 BY MR. EDWARDS:
13 Q. I'm going to now move to page 14 of the
14 document.
15 A. Okay. Next page; right?
16 MS. SAND: He said page 14.
17 BY MR. EDWARDS:
18 Q. Page 14, yes. A few pages up. And we'll start
19 by looking in about the middle of the page there's a
20 email from TracFone to TRS dated December 23rd, 2013,
21 talking about concern regarding the language in the NDA.
22 Do you see that?
23 A. Language in the NDA. Oh, this -- they're both
24 2013; okay.
25 Q. Do you -- do you see where I'm -- I'm directing
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1 your attention to?
2 A. Yeah, I do.
3 Q. Okay.
4 A. Yes, I do.
5 Q. And then at the bottom page 14 there is the
6 beginning of an email from TRS to Mr. Cavalieri also
7 dated December 23rd of 2013?
8 A. Uh-huh.
9 Q. Okay. If we move to -- and it starts, "Hi
10 John." Let's move now to page -- the next page, page
11 2015. Or, excuse me, page 15. And at the top half of
12 that page is the continuation of that December 23rd
13 email. Do you see that?
14 A. Uh-huh.
15 Q. Okay. Then the next thing immediately after
16 that is an email from TRS to TracFone dated December
17 31st of 2013?
18 A. December 23rd you mean?
19 Q. I -- December 31st.
20 A. Okay. Well, that would be a couple pages down
21 maybe. Okay.
22 Q. No.
23 A. You see --
24 Q. We're -- we're -- if you look at the screen
25 here -- I apologize, having this blown up to be able to
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1 show you -- you'll see where the Bates number is at the
2 bottom?
3 A. Uh-huh.
4 Q. Page 14?
5 A. Yeah.
6 Q. Beginning of an email from TRS to TracFone dated
7 December 23rd. Do you see that?
8 A. Yes, 23rd, not 31st, yeah.
9 Q. 23rd; correct?
10 A. Yeah.
11 Q. That email continues at the top of page 15;
12 correct?
13 A. Yes.
14 Q. Okay. It ends, "Thanks John. I appreciate it.
15 Mike." Do you see that?
16 A. Yeah.
17 Q. That's the end of the December 23rd email;
18 correct?
19 A. Uh-huh.
20 Q. Okay. The very next email right after that is
21 from TRS to TracFone dated December 31st; correct?
22 A. Uh-huh.
23 Q. So there are no emails in this document between
24 December 31st -- or between December 23rd and December
25 31st; is that correct? It jumps from December 23rd to
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1 December 23rd -- to December 31st with nothing in
2 between.
3 A. Yes.
4 Q. Okay. I would like you to open the envelope
5 that is marked D.
6 MR. EDWARDS: And this is going to be
7 Exhibit 64 then; is that correct?
8 THE REPORTER: (Responds in affirmative.)
9 (Exhibit No. 64 marked.)
10 THE WITNESS: Okay.
11 BY MR. EDWARDS:
12 Q. Do you recognize Exhibit 64 as a copy of the
13 January 2014 monthly report to Renton?
14 A. Yes.
15 Q. Okay.
16 I'll direct you to the third page of that
17 document which is Bates numbered 781.
18 A. Yes.
19 Q. You see that?
20 A. Yes.
21 Q. And it starts by describing a December 13th
22 email?
23 A. Uh-huh.
24 Q. If you turn to the next page, page 782.
25 A. Uh-huh. Yes.
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1 Q. And you'll see at the very top of the email a
2 reference to an email between TRS and TracFone dated
3 December 23rd?
4 A. Yes.
5 Q. And right below that a reference to an email
6 between TracFone and TRS dated December 24th?
7 A. Oh, my goodness.
8 Q. Does it appear that the document that had been
9 marked Exhibit 63 is incomplete and does not actually
10 contain the text of all of the emails between TRS and
11 TracFone?
12 A. It's looking like that. How can I miss that?
13 Worried about my computer again. I used mine.
14 Q. Now I would like to ask you to open the envelope
15 marked A that was sent to you.
16 MR. EDWARDS: And I guess that's going to be
17 Exhibit 65 then?
18 (Exhibit No. 65 marked.)
19 THE WITNESS: Exhibit A?
20 BY MR. EDWARDS:
21 Q. Yeah, envelope A. It's one of the two large
22 envelopes that you got.
23 A. Oh.
24 Q. (Laughter).
25 A. Very large. Uh-huh. We have two rubber bands
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1 on here. Got a copy of a deposition. Oh, should I put
2 away the B?
3 Q. You can put away B. I don't think we're going
4 to go back -- well, when you say B, yeah, D that's been
5 marked as 64?
6 A. Oh, yeah. I'm talking about the emails I
7 thought were complete.
8 Q. We're going to be coming back to that many
9 times.
10 A. Oh, yeah, but I can set it aside for now?
11 Q. You can set it aside, yes.
12 A. All right, I've got the deposition in front of
13 me.
14 Q. Okay. So you recognize this as a transcript
15 from the first day of your deposition on November 17th
16 of this year?
17 A. Yeah, I would think so.
18 Q. I -- I'd like to --
19 (Inaudible due to crosstalk.)
20 BY MR. EDWARDS:
21 Q. I'd like to direct you to page 24 of that
22 document.
23 A. They have page numbers on.
24 Q. They do have page numbers, up at the top
25 right-hand corner.
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1 A. Okay. Here we go.
2 Q. Are you at page 24?
3 A. Yes.
4 Q. Okay. Down on line 23 at the bottom, do you see
5 the question that I asked, "Did you ever send an email
6 to TracFone that explained the theory that was the basis
7 for the assessment?"
8 A. Yes.
9 Q. "Not the mechanics of how the numbers were
10 calculated, but why tax is due." I'm moving over to the
11 top of page 25 in that.
12 A. Yes.
13 Q. Can you read your answer?
14 A. I say: Oh, yes, I think I've got, yeah, we
15 quoted the... We quoted the code, both the Renton code
16 and the state code to them. We explained to them why we
17 thought that they were a telephone company. We tried to
18 explain to them why we thought that they had facilities,
19 because they kept saying they weren't facility --
20 non-facility based, and we explained to them our
21 position on the resale situation, why the networks --
22 network providers were not taxable and the retail stores
23 weren't taxable. We explained all of that in emails.
24 Q. How many different emails do you think you sent
25 to TracFone quoting the code and explaining to them why
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1 they were a telephone company?
2 A. I -- I was able to find three.
3 Q. What are you looking at when you tell me that?
4 A. I -- I wrote down the -- I knew you were going
5 to ask me where I got those, so I wrote down the dates
6 so that you would have them.
7 Q. What dates did you write down?
8 A. September 24th, 2014, and December 17th, 2014 --
9 oh, that was just a phone call, Mr. Dillon and Ford.
10 There's actually kind of a good write-up of some of the
11 things I remembered we talked about that would -- are in
12 that what we call the documentation sheet. I think Kari
13 labeled it the... monthly status reports. And then
14 December 7th -- oh, that's the phone call, and December
15 11th, 2015.
16 Q. I would like to send you -- you to send me a
17 copy of whatever document it is that you're reading
18 from.
19 A. Pardon me?
20 Q. I would like you to send me a copy of whatever
21 document it is that you just read those dates off of.
22 A. Okay.
23 MS. SAND: Mr. Edwards, would you like her
24 to just hold it up to the camera also?
25 MR. EDWARDS: I think it's on her computer
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1 screen.
2 THE WITNESS: No, it's not. It's taped to
3 it on the side.
4 MS. SAND: Can you -- can you show us?
5 I mean, do you want to see it, Mr. Edwards?
6 I don't know.
7 MR. EDWARDS: I do want to see it, yes.
8 THE WITNESS: (Complies.)
9 MR. EDWARDS: Let me see if I can change
10 my... The problem is with me sharing, I have such a
11 small --
12 THE WITNESS: Little thing.
13 BY MR. EDWARDS:
14 Q. Yeah, so this is something that you typed up. I
15 am going to want you to send that to me. I -- I want to
16 try to keep this moving forward as quickly as possible.
17 MR. DEGGINGER: If it's been typed up, is it
18 on a scanner -- is it on a computer?
19 THE WITNESS: I -- yeah, I typed it up on
20 computer.
21 MR. EDWARDS: Can you email that to us?
22 THE WITNESS: Probably. That should be
23 fine.
24 MS. SAND: And copy me on the email, thank
25 you.
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1 THE WITNESS: Okay.
2 BY MR. EDWARDS:
3 Q. Would it surprise you to learn that the --
4 nowhere in Exhibit 63, the 165-page Word document that
5 you created, is there any quotation of the Renton
6 Municipal Code?
7 A. Oh, my goodness. Well, let me -- let me look at
8 my list.
9 (Sotto voce comments.)
10 Okay, that TracFone case. Oh, yeah, so I went
11 straight to the Revised Code of Washington on December
12 11th to make the case. And I -- I remember I mentioned
13 also that there -- there was stuff in the code. But
14 I -- I just went to the Revised Code of Washington. So
15 I -- that was an error to say I quoted the code to them.
16 Q. And you're talking about a December 24 email?
17 A. This would be the December 11th, 2015.
18 Q. Let me -- let me have you now open envelope E.
19 A. E. Okay.
20 MR. EDWARDS: And that's going to be Exhibit
21 66 I believe?
22 (Exhibit No. 66 marked.)
23 THE WITNESS: This was A. I'll put it back
24 where I can find it. And then E. A, B, C, D, E.
25 BY MR. EDWARDS:
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1 Q. E as in Edwards.
2 A. Okay.
3 All these redactions.
4 Q. Do you have Exhibit E in front -- or envelope E
5 in front of you?
6 A. I've opened it. The exhibit's in front of me.
7 Q. Okay. So looking at that document, which has
8 been marked in this deposition as Exhibit 66, do you
9 recognize this as the October 2014 monthly report that
10 TRS submitted to the City of Renton?
11 A. Yes.
12 Q. And it has the Bates number 37 on the first page
13 of that document?
14 A. Yes.
15 Q. I'd like to direct your attention to the next
16 page, Bates numbered 38. And at the top of that page
17 it -- it is reporting about a September 5, 2014, email
18 from Mr. Ford to -- to TRS; is that correct?
19 A. Yes.
20 Q. And just over halfway down it begins a --
21 quoting a September 24, 2014, email from TRS to
22 TracFone; is that correct?
23 A. Yes.
24 Q. And this is responding to the statement in
25 Mr. Ford's email that TracFone does not own or operate
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1 any telephone facilities; is that correct?
2 A. Yes, it's interesting what it has here, very
3 long quote of the Renton Municipal Code.
4 Q. Mrs. Crisp, we will get to that. I would like
5 you to answer the question that I asked you.
6 A. Okay. Ask it again. I was --
7 MR. EDWARDS: Can you please read -- read
8 the question back.
9 (Question was read back.)
10 THE WITNESS: Yes. The September 24th,
11 2014, one.
12 BY MR. EDWARDS:
13 Q. Yes; correct.
14 A. Okay.
15 Q. Then last paragraph at the bottom of the page,
16 about halfway down you say, "But the city codes do not
17 require this sort of facility as far as we can see." Do
18 you see that part of the --
19 A. Uh-huh.
20 Q. -- email?
21 What did you mean by that?
22 A. (Reviews exhibit.)
23 Actually I don't see where -- what you just
24 read.
25 Q. Okay. The -- the last paragraph on page 38
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1 begins, "We also noted in your email that TracFone does
2 not own or operate any telephone facilities." Do you
3 see that sentence?
4 A. "We also noticed"; okay, I see at the
5 beginning -- okay.
6 Q. Okay.
7 A. Yeah.
8 Q. In the next sentence you're talking about
9 agreeing that TracFone does not own or operate towers or
10 satellites. Do you see that?
11 A. Yes.
12 Q. Okay. The third sentence in that paragraph
13 begins, "But the city codes do not require this sort of
14 facility as far as we can see." Do you see that
15 sentence?
16 A. Yes.
17 Q. What did you mean by that sentence?
18 A. Well, I -- I have to say first that my
19 understanding of the codes has evolved. But at this
20 particular time I was saying that, you know, to say
21 you're facilities-based and so you don't have to pay --
22 I mean you're not facilities-based so you don't owe any
23 taxes, I'm saying, well, you do have facilities that you
24 use to... to operate -- well, the word "operate" is not
25 correct, but to manage the -- the telephone access. The
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1 network telephone access are facilities, whether, you
2 know -- wherever they are, you're operating your
3 telephone business using facilities. So whether it's
4 there in Florida or -- or if they're a... something that
5 is used more locally to control the -- the local -- the
6 access to the local network, you have facilities. And
7 that was my point at the time.
8 (Sotto voce comments.)
9 I just --
10 Q. What evidence did you have about any type of
11 facilities that TracFone owned, operated or managed?
12 A. You know... we have an address -- don't we? --
13 to send things to TracFone, and I've talked to them in
14 Florida. They have a facility there.
15 Q. What type of facility? Is it an office
16 building?
17 A. I would assume so. They have an address and
18 they have people calling me from that location.
19 Q. Do you know anything else about that location?
20 A. Nope.
21 Q. So what makes that location a telephone
22 facility?
23 A. A facility that is used by a telephone company
24 to conduct business.
25 Q. Two more sentences down you make the statement,
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1 "TracFone does have areas inside each city for the sale
2 of your services." Do you see that phrase?
3 A. Yes, once more I'm saying my understanding of
4 TracFone has evolved over time, but the --
5 (Inaudible due to crosstalk.)
6 THE WITNESS: -- the taxability of the
7 company has not changed. The -- the way that I would
8 have defended it now, which I am not a lawyer, might
9 have changed, but the fact is that TracFone owes taxes,
10 that they are conducting a telephone business. And they
11 do have -- do control the network airtime to provide it
12 to their con- -- customers.
13 If you want better explanations like that,
14 then you need to talk to the lawyers that are working.
15 Garth probably can understand more. I'm -- I'm just an
16 auditor and my instincts were correct. Now, whether I
17 can explain those legally really well or not, I did my
18 best here.
19 MR. EDWARDS: Can you please read my
20 question back.
21 (Question was read back.)
22 THE WITNESS: Yes.
23 BY MR. EDWARDS:
24 Q. What evidence did you have to support the fact
25 that you alleged in this sentence?
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1 A. It says...
2 (Reviews exhibit.)
3 Q. Well, let me ask it a different way.
4 Is the statement that TracFone has areas inside
5 each city for the sale of its services a factually true
6 statement?
7 A. No, I think I -- at this time I was thinking
8 that TracFone had stores. It took a while for me to get
9 that in my mind that TracFone doesn't own their stores.
10 Now, you... Really I think I'm way outside of my area
11 of expertise here. I did my best as part of the audit
12 and this wasn't questioned, so I didn't -- didn't do
13 extra research or ask lawyers on how to approach it.
14 Q. But you -- you made a statement to TracFone that
15 you are basing the determination that they were subject
16 to Renton tax on an untrue fact; isn't that correct?
17 That's what actually happened here.
18 A. Well, I -- in here... I was making one wrong
19 assumption that they owned stores. But the fact is they
20 do have facilities. I just didn't understand what those
21 facilities are.
22 Q. And those facilities cons- -- consist of an
23 office in Florida?
24 A. No, actually now I don't agree with that, what I
25 wrote. As I said at the beginning, my understanding of
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1 the situation has evolved, but the conclusion that --
2 that TracFone is a telephone company that provides
3 telecommunications services and, you know, telephone --
4 Q. Mrs. Crisp, you are not being deposed as an
5 expert witness.
6 A. Right.
7 Q. Your opinion is not relevant to this, and your
8 describing what your opinions and conclusions are is not
9 answering the questions that I'm asking you. So I
10 would --
11 (Inaudible due to crosstalk.)
12 THE WITNESS: You said --
13 BY MR. EDWARDS:
14 Q. -- ask you again --
15 A. You say that I -- my opinions don't matter, but
16 then when you come here and my opinion back then
17 suddenly matters. So the issue is, is TracFone a
18 telephone company, are they... I've lost the word. Do
19 they provide network telephone service, you know, all of
20 those things, the conclusion I came to was correct. And
21 that's what matters for the audit.
22 Q. Well, the -- whether the conclusion that you
23 came to is correct is the subject matter of this
24 dispute.
25 A. Are they the telecommunications company. That's
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1 what I was trying to think of the word. They -- and
2 they are a telecommunications company. And they -- they
3 do...
4 Q. Mrs. Crisp, this is not a -- a venue for you to
5 give speeches. This is a venue for me to ask you
6 questions and for you to answer the questions that I ask
7 you. Do you understand that?
8 A. I understand what you said.
9 Q. Also I'd like to reiterate something that we
10 talked about at the beginning of the first day and --
11 and both of us did a bad job. We're doing better today.
12 But it is important that we not speak over each other.
13 So when I am talking, please don't interrupt me, and I
14 will do my best to not interrupt you when you are
15 talking.
16 So you now agree that the statement that you
17 made in this email of September 24, 2014, that TracFone
18 has areas inside each city for the sale of services, is
19 not a true statement?
20 A. I didn't hear every word of that.
21 MR. EDWARDS: Can you please read that back.
22 (Question was read back.)
23 THE WITNESS: I still think it's true. My
24 understanding of what those facilities are is different
25 now.
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1 BY MR. EDWARDS:
2 Q. What facilities does TracFone have in Renton?
3 A. They have... And once again you're saying my
4 opinion doesn't matter, but then you're asking me for my
5 opinion; all right? So...
6 Q. I'm asking you a factual question. As a matter
7 of fact, what facilities does TracFone have in Renton?
8 A. They contract with carriers to provide network
9 access, and that -- those -- that network access is a
10 facility that they use. Once again, I just have to say
11 I'm not the lawyer in this case. We have people who
12 know and can use the terminology better and present --
13 Q. Your --
14 A. -- the argument more accurately than I can.
15 Q. I'm not asking for legal arguments. I'm asking
16 for facts. What facts do you know; what is the basis
17 for your knowledge; what evidence do you have that
18 allows you to believe a fact to be true. Are you
19 telling me that it is -- it is your belief that a
20 contract is a facility?
21 A. No.
22 Q. The statement that you made says TracFone has
23 areas inside each city. Is that statement true or
24 false?
25 A. Let's see if I can...
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1 (Reviews exhibit.)
2 Q. I don't know where you're -- what you're looking
3 at.
4 A. I'm trying to find where you said where it said
5 that.
6 Q. The same place we've been at for the last 15
7 minutes, at the bottom of page 38 of Exhibit 66.
8 A. 38; okay.
9 Q. It's the exact same phrase that we've been going
10 round and round about. Is that statement --
11 A. Okay. So --
12 Q. -- true or false?
13 A. The statement that TracFone does have areas
14 inside each city for the sale of your services, I would
15 say false.
16 Q. Thank you.
17 Right before that it says you cannot find any
18 definition of "telephone facilities". Do you see that
19 statement?
20 A. The same page?
21 Q. Same page, up like one or two lines.
22 A. Yeah, and now I know, I found it in the code
23 since then. So I... It is there in the RCWs I believe.
24 Q. What did you do to look for a definition of
25 "telephone facilities"?
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1 A. Well, I thought I -- I went through the
2 definitions, but I didn't go through the list where this
3 one is.
4 Q. When you say "the definitions," what are you
5 referring to?
6 A. There's quite a few lists of definitions in the
7 codes.
8 Q. Which is why I'm asking which definition list
9 you're referring to.
10 A. Okay. I looked through definitions lists and I
11 didn't apparently see this definition. I might have
12 even missed the whole list. I believe it's an auxiliary
13 list.
14 Q. If we move to page 39, this is a continuation of
15 the excerpt from the September 24, 2014, email; is that
16 correct?
17 A. Yes.
18 Q. And it contains a quote of the Renton utility
19 tax ordinance; is that correct?
20 A. Yes.
21 Q. And that quote starts on page 39, goes to the
22 entirety of page 40, and ends at the top of page 41; is
23 that correct?
24 A. (Reviews exhibit.)
25 Actually -- oh, the quote of the municipal --
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1 Q. The quote of the Renton --
2 A. Yes.
3 Q. -- municipal code?
4 A. Yes, it does.
5 Q. Okay.
6 And then the report continues and has a -- well,
7 actually before I get there --
8 A. Yeah, I don't --
9 Q. -- no part of this quote of the Renton utility
10 tax code is highlighted; correct?
11 A. Right.
12 Q. After the quote of the Renton utility tax code
13 is a quote that is an excerpt from a State Supreme Court
14 case involving the E911 tax; correct?
15 A. Right.
16 Q. And several aspects of that excerpt are
17 highlighted; correct?
18 A. Yes.
19 Q. Why did you highlight excerpts of the E911 tax
20 case and not highlight anything from the Renton
21 Municipal Code?
22 A. I don't know.
23 Q. And there's -- there's nothing in this email
24 that explains how either the Renton Municipal Code or
25 the Supreme Court case apply to TracFone. It's simply
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1 quotes of the language from those two things; correct?
2 A. Yes. I believe. Let me see at the end before
3 I...
4 (Reviews exhibit.)
5 Yes.
6 Q. Okay. I'd like to go back to Exhibit 63, which
7 is the 165-page Word document that you created copying
8 selections of emails. And I'd like to address your
9 attention to the 30th page of that document. So on my
10 screen share here, I'm going to scroll to page 30. And
11 then I see -- here it is.
12 And in about the middle of page 30 begins email
13 from TRS to TracFone dated September 24, 2014.
14 A. I'll just have to look at yours because it's
15 taking too long. Okay.
16 Q. If you look at my screen and you'll see it -- it
17 starts: Hi Nicholas, Thank you for replying to our
18 email. After reviewing your emails, you have let us
19 know that your company has not submitted any utility tax
20 returns.
21 There's then a period within brackets. I want
22 to confirm that this reflects that something has -- that
23 period is replacing other text with no indication of how
24 much text has been removed; correct?
25 A. Correct.
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1 Q. And then it starts, "In your email, you also
2 said that TracFone does not source calls at all." Do
3 you see that?
4 A. Uh-huh.
5 Q. And if you were -- if you look back at Exhibit
6 66 on page 38...
7 A. Okay. Just a second, because since you can't
8 scroll, I really need to get this open. I can't --
9 Q. Well, actually I -- I'd rather you focus on
10 Exhibit 66, page 38.
11 A. Sure. Just a moment.
12 Q. And compare the start of that email description
13 to what you see on the screen.
14 A. One moment.
15 (Sotto voce comments.)
16 Which one do you -- oh --
17 (Inaudible due to crosstalk.)
18 BY MR. EDWARDS:
19 Q. Exhibit 66 which is the -- was the -- in
20 envelope E, it's the October 2014 report that we have
21 been talking about --
22 A. Okay.
23 Q. -- the last 20 minutes.
24 A. All right. So and I --
25 (Sotto voce comments.)
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1 Q. The question is --
2 A. There.
3 Q. -- that the October report that the September
4 24, 2014, email quoted in the October report is the same
5 email that we were look -- that we are looking at at
6 page 30 of Exhibit 63; correct?
7 A. Yes.
8 Q. Okay.
9 Now, if you -- we're down near the bottom of
10 page 30 on Exhibit 63. The big paragraph ends,
11 "including PCS, or personal communications services."
12 Do you see that?
13 A. Uh-huh.
14 Q. Okay. If we look at Exhibit 66, page 39, the
15 excerpted quote also at that point ends with that same
16 language; correct?
17 A. (Reviews exhibit.)
18 Oh, I'm sorry.
19 Q. At the very top of Exhibit 66 at Bates number
20 39, you can see that the same ending language of the
21 inset quote, "including PCS, or personal communications
22 services."
23 A. Yes.
24 Q. And it's immediately after that that there is
25 the extensive quote of the Renton Municipal Code;
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1 correct?
2 A. Yes.
3 Q. And if we look at Exhibit 63, what instead
4 follows immediately are simply two brackets with no
5 space in between them.
6 A. Yes.
7 Q. And you have below that, "The {city has} wording
8 in their municipal code[]."
9 A. Yes.
10 Q. It would appear that you have redacted from this
11 document that is all of the Renton relevant information
12 two pages of quotation of the Renton Municipal Code?
13 A. Yes, that was a huge error. I did not mean to
14 redact that. You know, there was obviously other things
15 I was redacting, and this quotation, the code must have
16 gotten mass -- mixed up in that, which is very
17 inconvenient. When I was trying to find this where I --
18 you know, I made these arguments, I couldn't find them
19 when I was looking at that document. I had no idea I
20 had removed that.
21 Q. And the arguments consist of quoting two
22 excerpts: One of the Renton Municipal Code, and one of
23 the... state 911 case; correct?
24 A. Yeah, now that --
25 Q. And you've left the state 911 case in?
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1 A. Yes. But I lost the code. I'm -- I must have
2 thought it was from something else.
3 Q. Well, here's -- I'm looking -- if you look at my
4 screen, this is Exhibit 63 at -- at the Bates number 31,
5 right after the end of the quote from the E911 case it
6 says: After reviewing all of the information mentioned
7 above, comma -- and then I want to focus on the next
8 phrase -- we believe that TracFone owes the city utility
9 taxes.
10 Do you see that language?
11 A. Yes.
12 Q. Okay. I'd like you to direct your attention
13 back to Exhibit 66 on page 42 of that document. Right
14 at the end of the quote from the -- the Supreme Court
15 decision it starts the saying: After reviewing all of
16 the information mentioned above, comma, but the next
17 phrase says, it does appear to us that.
18 Why do we have two different versions of what
19 the same email allegedly said?
20 A. It's such a good question.
21 (Sotto voce comments.)
22 I would like to look into that, because I'd have
23 to go back to the original -- can you give me the
24 question one more time?
25 MR. EDWARDS: Please read the question back.
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1 (Question was read back.)
2 THE WITNESS: Okay, so the email --
3 (Sotto voce comments.)
4 THE REPORTER: I'm sorry, Ms. Crisp, when
5 you mumble, I still have to take down everything you
6 say, so if you could not.
7 THE WITNESS: Okay.
8 Okay, I'm really interested to get to the
9 bottom of that. It may be that when Mr. Crisp was
10 making -- the update is what we call it, he was typing
11 something that had to be redacted to send to Renton and
12 he -- he just restated what we had said that needed
13 redacting in the clearest way possible. So my best
14 estimate of what happened was that what I put in the
15 email was actually in the email and the redactions are
16 just the parts that needed to be removed because it's
17 outside business, and this what he sent to -- to Renton
18 was basically a way of taking that -- that redacted
19 statement and putting it in terms of, you know, what TRS
20 meant by the statement without all the extra things in
21 there. I would prefer he hadn't done that, but I think
22 he must have thought --
23 BY MR. EDWARDS:
24 Q. So is your testimony that your husband altered
25 the text of an email that he purported to be quoting in
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1 his report to the City of Renton?
2 A. You would have to ask him, but I'm -- I'm
3 thinking that he saw this -- this whole mess of stuff
4 that needed to be redacted and simplified it for the
5 City in a way that the City would not have objected to,
6 because as you can see, the two statements basically
7 mean the same thing to Renton.
8 Q. So he decided to only alter the phrase, "We
9 believe that TracFone" or "We believe that" and replace
10 it with "It does appear to us that"?
11 A. Yeah, that's pretty much the same thing. "We
12 believe that" and "It does appear to us that." I can't
13 speak for him, but that would be my best guess. Because
14 I -- I -- I was very careful with the estimate -- how
15 many pages is this? A hundred ninety-six pages? It's
16 pretty hard to do that error-free and especially get the
17 redactions right. It was a huge undertaking.
18 Q. Doesn't that suggest that when all he's trying
19 to do is report on one email, it's more likely that his
20 purported quote of what the email says is correct and
21 your purported quote of the email is the one that has
22 been --
23 A. No. Sorry. Are you through?
24 Q. Yes.
25 A. No, because when I did this, I was copying and
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1 pasting and -- and redacting very carefully, very
2 methodically.
3 Q. We've already seen that there's been a lot of
4 errors in what you've done; correct?
5 A. Yeah, but there's no way I could have come up
6 with this if it wasn't there. I -- I didn't make
7 something up and add it in there except inside the
8 brackets where it was necessary to for cohesion.
9 Q. But your husband regularly alters the text of
10 emails that he reports to his clients?
11 A. Only -- only when there was -- is redacting
12 necessary. Well, you'll see, because of all the other
13 business that got thrown in, as the updates continue, he
14 began just summarizing the whole letter instead of
15 copying and pasting it and redacting it, and that was
16 okay with Renton too. So I -- I wouldn't think this is
17 his regular practice, but I could see him in a hurry and
18 saying oh, man, there's all this redacting to do, I'll
19 just restate it, and --
20 Q. Now, can you tell me what redacting there is to
21 do between the end of a direct -- a verbatim quote of a
22 court case and a concluding sentence that has nothing to
23 do with any specific city?
24 A. Well, there's brackets in there. I've lost my
25 place. Oh, yeah. Yeah.
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1 Q. Where -- I'm looking --
2 (Inaudible due to crosstalk.)
3 THE WITNESS: The last sentence says and it
4 is -- so it is our opinion that TracFone would owe the
5 City utility taxes on these unreported revenues, and he
6 could have --
7 BY MR. EDWARDS:
8 Q. You're looking at a different place, so we need
9 to get reoriented. So look at my screen.
10 A. Okay.
11 Q. This is page 31 of Exhibit 63. Do you see this?
12 A. Yes.
13 Q. Okay. And you will agree that there is a quote
14 from the State Supreme Court case, and then --
15 A. Yeah.
16 Q. -- a sentence that begins, "After reviewing all
17 of the information mentioned above." Do you see that?
18 A. Uh-huh.
19 Q. There are no brackets anywhere --
20 A. Oh, on that one.
21 Q. -- in this part; correct?
22 A. Right.
23 Q. Now I would like to direct your attention to
24 Exhibit 66, and specifically to the page that's Bates
25 numbered 42. Do you have that in front of you?
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1 A. Yes.
2 Q. And you will see that at the top of that page is
3 the exact same quote from the Supreme Court case that we
4 were just looking at.
5 A. Yes.
6 Q. And immediately after that is the -- a sentence
7 that begins exactly the same way: "After reviewing all
8 of the information mentioned above." You see that?
9 A. Yes.
10 Q. But then Exhibit 66 says, "it does appear to us
11 that," and Exhibit 63 says, "we believe that."
12 A. Yes.
13 Q. You agree that those are different two
14 statements; correct?
15 A. Yes, and this is not one with redactions so my
16 earlier statement would be wrong. But --
17 Q. Stop. There's not a question in front of you
18 right now.
19 A. Okay.
20 Q. You would agree that both Exhibit 63 and Exhibit
21 66 purport to be quoting an email dated September 24,
22 2013, from TracFone -- or from TRS to TracFone; correct?
23 A. Yes.
24 Q. One of those two documents is misquoting the
25 email; correct?
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1 A. Yes.
2 Q. How can we figure out which one of them has been
3 altered?
4 A. You have the original email. You could check if
5 you really cared. But, I mean, I would think that if
6 he... wanted to -- to summarize it himself, instead of
7 just continuing on with the email, that he should have
8 done the indention and spoken straightly -- straight to
9 the City of Renton, but instead the state's indented.
10 You know what, I -- we don't have a question
11 before me; right? I need a break.
12 Q. Okay.
13 A. I've been drinking --
14 (Inaudible due to crosstalk.)
15 BY MR. EDWARDS:
16 Q. Yeah, we have been going an hour and 40.
17 It's -- I -- how long of a break would you like?
18 THE WITNESS: What do you think, Kari, do
19 you think five minutes would be enough?
20 MS. SAND: It's whatever you need, Tamara.
21 What do you need?
22 THE WITNESS: Five minutes is fine.
23 MR. EDWARDS: Okay.
24 (A break was taken
25 from 10:39 a.m. to 10:47 a.m.)
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1 MR. EDWARDS: Let's go back on the record
2 then.
3 BY MR. EDWARDS:
4 Q. So, Mrs. Crisp, in preparing the document that's
5 been marked as Exhibit 63, what was your -- how did you
6 locate the emails that you copied into that document?
7 A. Okay. 63 is the update?
8 Q. 63 is the 165-page --
9 A. Okay.
10 Q. -- summary of the email.
11 A. And how did I locate it, locate them?
12 Q. Yes.
13 A. I went into my inbox and I first searched for
14 Cavalieri, and I copy and pasted those till he was gone,
15 and then I searched for -- closed that and I searched
16 for Ford, you know, Nicholas Ford, and everything
17 between him and I, it was my diligent effort to get
18 everything in there.
19 Q. All right. In your email inbox there, are there
20 folders for the different audits that TRS conducts?
21 A. We only have... We have a separate folder that
22 we put the ZIP Code data in. And the... I don't think
23 we have any -- any audit-specific folders other than the
24 ZIP Code folders.
25 Q. And when you say not audit-specific, you're not
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1 talking about -- you're talking about for all of the
2 taxpayers you audit, not just TracFone; correct?
3 A. Right. They're all in -- in the inbox. We use
4 our search engine to find things.
5 Q. And... the communications between TRS and
6 TracFone are not exclusive to TRS's audit of TracFone
7 for the City of Renton; is that correct?
8 A. Yes.
9 Q. And -- and there was never any effort to
10 communicate with TracFone on an exclusive basis with
11 respect to each client of TRS; correct?
12 A. Correct.
13 Q. I'm going to share my screen again for the
14 Exhibit 63. And at this point I'm moving to page 39 of
15 the document.
16 You had mentioned earlier that in preparing for
17 today's deposition you had determined that there was a
18 phone call between TRS and -- and TracFone on December
19 17, 2014; is that correct?
20 A. Yes.
21 Q. And so as we're looking at page 39 of Exhibit
22 63, this appears to be an email from TRS to TracFone
23 following up from that conversation; is that correct?
24 A. I don't believe so. Let me check. See if...
25 No.
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1 Q. If we go to the prior page --
2 (Inaudible due to crosstalk.)
3 BY MR. EDWARDS:
4 Q. -- 38.
5 A. Was on December 17th, 2014. And this was
6 December 11th, 2015; right?
7 Q. No.
8 A. No. Oh, December 24th, 2014. Okay. So this is
9 December...
10 Q. Okay.
11 A. So this was --
12 Q. I had asked you to look in my -- my screen.
13 A. Oh, sorry.
14 Q. Are you looking at my screen?
15 A. Yeah, it's just I have so much more control over
16 where I look when I'm not stuck on the screen.
17 Q. But when I'm asking you to look at something
18 that's on the screen and asking you a question about it,
19 it would be helpful for you to actually be looking at
20 what I'm directing you to, would you agree?
21 A. Sure.
22 Q. Okay.
23 What I'm directing your attention to is an email
24 dated December 18, 2014; correct?
25 A. Yes. Oh.
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1 Q. Does this email appear to be a response to the
2 telephone conference that you had previously testified
3 occurred on December 17, 2014?
4 A. (Reviews exhibit.)
5 Yes.
6 Q. And it indicates that it is TRS's desire to be
7 sure that the audit is done correctly?
8 A. (Reviews exhibit.)
9 Q. You see that?
10 A. Yeah, uh-huh.
11 Q. Okay. It then says, "After further review of
12 the situation." Do you know what further review is
13 being referred to here?
14 A. Not really.
15 Q. Okay. And then it goes on to say, "TRS will
16 need sufficient time to meet with the [city] to discuss
17 the audit." Do you see that?
18 A. Yes.
19 Q. What did TRS do to discuss the audit with the
20 City of Renton following -- as part of its follow-up
21 from the December 17 call with TracFone? Please don't
22 look at anything when you're answering that question.
23 A. Completely off of memory is what you're asking?
24 Q. Yes.
25 A. I don't remember.
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1 Q. Thank you.
2 Did TRS have any conversations with the City of
3 Renton about the discussion that was held on December
4 17th between TRS and TracFone?
5 A. I don't remember specifically. I know -- I do
6 remember it ended up in our update, but I can't remember
7 if we discussed it.
8 Q. It says TRS will be seeking legal counsel on how
9 to best move forward with the audit. Do you see that?
10 A. Yes.
11 Q. Okay.
12 Did TRS seek legal counsel?
13 A. If we did, it would have been with the City of
14 Renton, but I don't recall that.
15 Q. Did TRS meet with the City of Renton?
16 A. In-person?
17 Q. Did they do what this email says TRS is going to
18 do?
19 A. I would think the meeting would be via
20 telephone, but no, I don't believe we actually did that.
21 Q. Okay.
22 A. It -- if we -- I would have remembered. I
23 believe we just discussed it via email if we did. I can
24 find that for you if I had time. Perhaps. (Laughter).
25 Q. So to be clear, TRS did not do any of -- either
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1 of the two things that it told TracFone it was going to
2 do: It did not meet with the City of Renton, and it did
3 not seek legal counsel?
4 A. Possibly. We were stating our intentions, but
5 I'm -- I can't prove to you we carried through.
6 Q. Well, I would suggest that the documents have
7 been produced confirm your answer that you did not carry
8 through.
9 A. Really? You are saying that the documents show
10 that we never discussed this with the City at all?
11 Q. There's no record of you having had a meeting
12 with the City, there's no record of you engaging with
13 counsel, and there's no record of you reporting back to
14 TracFone after having concluded the meeting. So none of
15 the three things that are indicated to being -- that
16 would happen are reflected in any of the records that
17 have been produced.
18 A. Okay. I'll check up on that.
19 Q. And, again, I guess to reflect the time frame,
20 this was an email sent to TRS on December 18, 2014;
21 correct?
22 A. Yes.
23 Q. I'd like you to... open the document that is our
24 envelope F.
25 A. These tabs are a lot easier to open than
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1 [distorted audio].
2 Q. Yes, they are.
3 A. I appreciate that.
4 MR. EDWARDS: And I believe we're now at 67?
5 (Exhibit No. 67 marked.)
6 THE WITNESS: (Reviews exhibit.)
7 BY MR. EDWARDS:
8 Q. Do you have that in front of you?
9 A. Yes.
10 Q. And is it an email from TRS to the City dated
11 October 24, 2014, and bearing the Bates stamp number 600
12 at the bottom?
13 A. Yes.
14 Q. And then I'd like you to now look at -- open
15 Exhibit G or envelope G, which I take it will be Exhibit
16 68.
17 (Exhibit No. 68 marked.)
18 BY MR. EDWARDS:
19 Q. Do you have that in front of you?
20 A. Yes.
21 Q. And do you recognize, is that a email from TRS
22 to the City of Renton dated February 2, 2015?
23 A. Yes.
24 Q. And at the bottom of that it has the Bates
25 number 601?
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1 A. Yes.
2 Q. So Exhibits 67 and 68 are Bates stamped
3 sequentially as 600 and 601?
4 A. Yes.
5 Q. If I were to tell you that the records produced
6 to us by the City of Renton indicate that there was no
7 communication between Renton and TRS from October of
8 2014 until February 2 of 2015, does that sound correct?
9 A. Not really. Let's see. Is this -- okay, so
10 that was the 2014. But I can't say for sure. I have to
11 look all this up. There's piles and piles of minutia
12 and I just don't remember.
13 Q. Based on these records, it would appear that TRS
14 did not have any communication with the City of Renton
15 until roughly six weeks after they told TracFone they
16 would meet with the City of Renton and retain legal
17 counsel; is that correct?
18 A. See, I'm supposing that everything you say is
19 the truth, so I'm not saying it's not. I can't say it
20 is without double-checking myself.
21 Q. You would need to be able to produce records
22 that have not yet been produced to be able to refute
23 that statement; correct?
24 MS. SAND: Objection. Mischaracterizes the
25 testimony of the witness.
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1 BY MR. EDWARDS:
2 Q. You can answer the question.
3 A. I know in the updates, I do remember this much
4 that we gave a synopsis of the telephone conversation to
5 Renton. We may have gone beyond that, but I know for
6 sure there was a synopsis of that. Yeah, that happened
7 December 17th, 2014, and it showed up in the update.
8 MR. EDWARDS: Let's move to exhibit or to
9 envelope H, which will be marked Exhibit 68; is that
10 correct? Were we just at 68?
11 THE REPORTER: 69.
12 MR. EDWARDS: 69, thank you.
13 THE WITNESS: That will be 69.
14 (Exhibit No. 69 marked.)
15 BY MR. EDWARDS:
16 Q. Envelope H, which will be Exhibit 69.
17 Do you have that document in front of you?
18 A. Yes.
19 Q. Do you recognize it as the January 2015 monthly
20 report to the City of Renton?
21 A. Yes.
22 Q. Okay. And on the second page of that document,
23 which has the Bates number of 800, it's the beginning of
24 the report about the TracFone audit; is that correct?
25 A. (Reviews exhibit.)
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1 MR. EDWARDS: Kari, I'm getting a lot of
2 background noise. Can you mute yourself?
3 MS. SAND: I'll try to be quiet.
4 MR. EDWARDS: It almost -- it sounds like
5 road noise. Is that maybe somebody else then?
6 THE WITNESS: Might be mine that the -- the
7 garbage is being picked up as we speak.
8 BY MR. EDWARDS:
9 Q. Okay. Maybe that's what it is.
10 A. It's going to be over pretty soon.
11 MR. EDWARDS: Sorry, Kari, for assuming that
12 it was coming from you.
13 THE WITNESS: (Laughter).
14 MS. SAND: A false accusation.
15 THE WITNESS: (Laughter).
16 MS. SAND: I've been loud before.
17 MR. EDWARDS: Okay.
18 MS. SAND: But not today.
19 BY MR. EDWARDS:
20 Q. Ms. Crisp, do you have Exhibit 69 in front of
21 you open to Bates page 800?
22 A. Yes.
23 Q. Okay. And are you able to confirm that that's
24 where the report about TracFone starts on page 800?
25 A. Yes.
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1 Q. Okay. And the third paragraph there says that
2 on December 16, 2014, there was a conversation with
3 Mr. Ford and Mr. Dillon?
4 A. Yeah, it looks like it was actually on the 17th.
5 Q. Well, was it on the 17th or was it on the 18th?
6 A. I have December 17th on my notes. They kept
7 moving it. There was a Christmas party and all sorts of
8 things, but I -- I thought it was on the 17th when
9 they -- because they scheduled it, then they rescheduled
10 it, and then we came back, are you still doing it today,
11 that kind of thing. It was complicated. So I wrote
12 down the 17th.
13 Q. Okay.
14 A. But he probably recorded the -- oh, I'm not
15 supposed to speculate. (Laughter). But there was a
16 appointment I believe for the day before that TracFone
17 backed out on because of a Christmas party. And that
18 was fine.
19 Q. Okay. Let's continue to look -- and -- and this
20 describes the conversation that occurred during that
21 call regardless of whether it was the 16th or the 17th?
22 A. Okay.
23 (Reviews exhibit.)
24 Q. And it says that what TRS did was to review the
25 email that had been sent on September 24th?
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1 A. Okay.
2 Q. Is that correct?
3 A. Yes.
4 Q. And then if we look to page 801. Pages from 801
5 to about three-quarters of the way down 804 are simply
6 again a verbatim cut and paste from the September 24,
7 2014, email?
8 A. Yes.
9 Q. Contains the same excerpt of the Renton utility
10 tax code?
11 A. Yes.
12 Q. And the same excerpt from the -- the... from the
13 state 911 tax statute?
14 A. Yes.
15 Q. Or 911 tax case.
16 And then on page 804 it says: After talking to
17 Mr. Dillion [sic], it was our opinion that he just wants
18 to try to come up with anything that might sit -- stick
19 concerning their taxes.
20 Do you see that?
21 A. Yes.
22 Q. Okay.
23 And then you report, "TRS will do some more
24 research on this matter and will then discuss it with
25 the City of Renton"?
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1 A. Yes.
2 Q. Okay.
3 So TRS isn't attempting to meet with the City of
4 Renton at this point or even have a discussion with the
5 City of Renton at this point; correct?
6 A. Yes.
7 Q. What additional research did TRS do?
8 A. I don't remember.
9 Q. Would there be any record of the research that
10 was done in the TracFone Renton audit file?
11 A. I doubt it. We weren't in the habit of... of
12 copying things, you know, onto documents or anything
13 like that that would produce something, a paper like
14 that.
15 MR. EDWARDS: Let's open envelope J now.
16 And this is going to be Exhibit 70.
17 (Exhibit No. 70 marked.)
18 THE WITNESS: Hey, we skipped one.
19 BY MR. EDWARDS:
20 Q. Do you have that in front of you?
21 A. Yes.
22 Q. Do you recognize it as the March 2015 report
23 from TRS to Renton?
24 A. To TracFone here, I'm sorry.
25 Q. Sorry. That's a report to Renton; correct?
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1 A. To Renton, March 5th, 2015.
2 Q. Okay. I'd like to direct your attention to the
3 page that's Bates numbered 817.
4 A. Yes, I'm there.
5 Q. The second sentence of that paragraph says, "...
6 TRS will also be reviewing all of the other legal
7 ramifications on how they conduct their business." Do
8 you see that?
9 A. Yes.
10 Q. What did you do to review the other legal
11 ramifications on how they conduct their business?
12 A. I don't remember.
13 Q. We're going to jump back now to your deposition
14 transcript that had been envelope A, the big document.
15 And I apologize that I did not keep a record of what
16 exhibit number that was.
17 A. That's all right, I can find it. It's pretty
18 large.
19 MR. DEGGINGER: 65.
20 MR. EDWARDS: 65, thank you.
21 BY MR. EDWARDS:
22 Q. And I want to specifically address your
23 attention to page 176 of that document.
24 A. 170 what?
25 Q. 6.
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1 If you read the bottom half of page 176, my
2 question is: Did you testify on the first day of your
3 deposition that you sent TracFone an email on December
4 11, 2015, rebutting its position?
5 A. Are you looking at page 176?
6 Q. I am.
7 A. And it starts -- your question starts with --
8 Q. I'm looking -- if you look at the bottom half
9 starting at line 16.
10 A. Yeah, I'm at line 16.
11 Q. Page 176.
12 A. Line 16.
13 Q. Page 176, line 16, read from line 16 to the
14 bottom.
15 A. Okay. Answer --
16 Q. I'm not asking you to read it out loud.
17 A. Okay.
18 Q. If you read that, am I accurately...
19 interpreting that colloquy there as testifying that you
20 sent Mr. Ford an email on December 11, 2015, that
21 rebutted claims made by Mr. Ford?
22 A. Okay.
23 (Reviews exhibit.)
24 Yes.
25 Q. Okay.
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1 And when we were speaking earlier and you listed
2 the three dates that you had put on your notes, December
3 11, 2015, was the third of those three dates; correct?
4 A. Yes.
5 Q. Okay. You can put that aside. And we're going
6 to go back to Exhibit 63, which is the big 165 page
7 summary of the emails. And I am going to move my screen
8 to share page 61. Do you see that? Do you see my
9 screen?
10 A. Yeah, that's page 61.
11 Q. Yeah, if you see at the bottom, Bates number 61?
12 You notice up at the top across the -- the ribbon, it
13 also shows 61-slash-165. But in about the middle of
14 that page there's an email from TracFone to TRS that's
15 dated December 11, 2015, at 10:02 a.m. Do you see that?
16 A. Yes, I do.
17 Q. And it says --
18 A. Second, I'll be there, also -- yeah, there it
19 is. Yeah.
20 Q. Are you -- what are you looking at?
21 A. I'm looking at Exhibit 63. I like to have that
22 open so I can go places that your screenshot might not
23 show.
24 Q. Okay. So you've got the paper copy of Exhibit
25 63 in front of you?
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1 A. Yes.
2 Q. Okay. And you found page 61 where I'm sharing
3 on the screen?
4 A. Yes.
5 Q. Okay. And you can confirm that that -- that on
6 December 11, 2015, that was the date that Mr. Ford
7 emailed TRS?
8 A. Yes.
9 Q. Okay. And the first sentence -- or actually it
10 starts, "Hi Mike," and then there's a bracket reflecting
11 the redaction of content; correct?
12 A. Yes.
13 Q. It says: relating to identifying redemption of
14 airtime geographically, hyphen, below, and then another
15 bracket reflecting more redaction; correct?
16 A. Yes.
17 Q. But then in the unredacted part is the -- there
18 are two paragraphs that are in blue text?
19 A. Yes.
20 Q. And the first sentence of the first paragraph
21 says, "TracFone is a non-facilities based reseller of
22 prepaid wireless airtime"; correct?
23 A. Yes.
24 Q. And it was that statement -- or let me strike
25 that.
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1 I'm now going to move to the next page of the
2 document, page 62. And the email that starts at the
3 beginning of page 62 is also dated December 11, 2015;
4 correct?
5 A. Yes.
6 Q. And TRS simply says, "Thanks for the email. We
7 will review it and get back to you"?
8 A. Yes. I didn't know that was in there. What
9 happened to it? Oh.
10 Q. The next email is dated December 31, 2015?
11 A. Yes, and then it has an attachment. I mean, an
12 earlier one. Whoa.
13 Q. How are you determining that there's an
14 attachment?
15 A. Well, it's not an attachment. I'm sorry. It's
16 a... There's an email chain -- train attached to the
17 January 8th. It shows it December 11th.
18 Q. So, Mrs. Crisp, this will go much faster if you
19 listen to the questions that I ask you and answer those
20 rather than moving ahead and looking at things that I'm
21 not asking you about. I will either get to what you're
22 looking for or I won't. Do you understand?
23 A. Yes.
24 Q. Okay.
25 The next email after December 11 is an email
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1 dated December 31st; correct?
2 A. Yes.
3 Q. That email does not respond to the September 24
4 or to the December 11 email, does it?
5 A. No.
6 Q. The -- the email after that is dated January
7 8th, 2016; correct?
8 A. Right.
9 Q. And it starts, "We have replied to your comments
10 below in bold lettering"; is that correct?
11 A. Yes.
12 Q. Okay.
13 A. Oh, that's what happened. Yeah.
14 (Inaudible due to crosstalk.)
15 BY MR. EDWARDS:
16 Q. So am I correct in -- in interpreting this as
17 reflecting that, on January 8th of 2016, TRS responded
18 to Mr. Crisp's email of December 11, 2015?
19 A. Yes. So the salient date should have been
20 January 8th, 2016, when we responded to the December
21 11th email that Nicholas had sent us, but we did it on
22 top of this email. Yeah, so that's correct.
23 Q. Are you familiar with the phrase "an audit
24 blue"?
25 A. I've heard my husband use that back when he
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1 worked for the City of Tacoma.
2 Q. Does TRS keep a communications log of the
3 communications with the taxpayer that they are auditing?
4 A. The closest we come to are these monthly status
5 reports or documentation sheets as we call them. That's
6 the closest we come to a blue. We don't do a blue.
7 When --
8 Q. You know what a blue is?
9 A. Well, I'm not really... I'm not really versed
10 on that, but I understand it's sort of a -- what you
11 just said. Didn't you say the audit trail?
12 Q. So you know enough about it to know it's
13 something that TRS does not do?
14 A. Well, we certainly don't do anything on blue
15 paper. But they -- there have been times in past audits
16 where we have done a really detailed job of recounting
17 the audit in what we -- what -- that we send with the
18 assessment I believe, or maybe we would just send it to
19 the city. But we have not done those I believe for
20 years.
21 We have a pretty quick little thing that we send
22 to the City because we let our updates do the work that
23 the -- that I believe the -- those -- the blue or the...
24 I'm trying to think of the name. We have -- an
25 assessment letter, and we have a -- oh, I can't think of
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1 the word. But we have a second letter that says what
2 happened in the audit and it's nothing like the blue.
3 (Laughter). It's nothing like it.
4 Q. Which makes it impossible to look at one place
5 to see the history of what transpired during the audit;
6 correct?
7 A. We -- I always thought that the updates or
8 documentation sheets and the email files were plenty to
9 trace the audit.
10 Q. Which requires to look, in this case, at 60
11 different documents and to pull out of each of those
12 documents the portion of it that relates to that audit
13 and to redact everything that relates to all of the
14 other audits that TracFone or that TRS was conducting?
15 A. Yes.
16 Q. And that's a convenient and easy way for
17 somebody to figure out what happened?
18 A. No.
19 Q. What research did you do between December 11 and
20 January 8?
21 A. It looks like we took a closer look at the codes
22 that are applicable, and we looked at -- yeah, that's
23 about it.
24 Q. So are you basing -- are you basing your answer
25 off the content of the bolded text in Exhibit 63?
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1 A. Yes.
2 Q. Okay.
3 A. Because I don't remember all the research we
4 did, but this pretty much shows that we took a hard look
5 at -- at the codes.
6 Q. When you said "codes", there's -- there's a
7 reference to R -- the RCW quoted above which is RCW
8 35.21.714?
9 A. Yes.
10 Q. Is -- did you look at any other RCWs?
11 A. Well, I must have taken leaps from there to
12 definitions that apply in order to see that proviso and
13 see its implication regarding what he said about resale.
14 So that -- that's not actually in 35.21.71 -- 41 or even
15 35A which is more properly used for -- for Renton.
16 Q. When you say that 35A is more properly used for
17 Renton, what is your -- your basis for making that
18 statement?
19 A. Because Renton's a code city and so 35A is -- is
20 the proper code. However, the two --
21 Q. What --
22 (Inaudible due to crosstalk.)
23 BY MR. EDWARDS:
24 Q. How do you know that 35A is the proper code?
25 A. Because Renton is a code city and that's the
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1 code for code cities.
2 Q. How do you know that that's the code for code
3 cities?
4 A. Because it says in the code.
5 Q. How did you -- how did you discover that it says
6 that in the code?
7 A. Probably read the code.
8 Q. Had you read that code before January 8th of
9 2016?
10 A. I would think so. I --
11 Q. I'm sorry?
12 A. I would think so.
13 Q. If that's the case, why didn't you inform
14 TracFone that Title 35 is the wrong statute and it
15 should have been -- they should be referring to 35A?
16 A. Yeah, I should have. You're right.
17 Q. Because... you were aware of that at the time or
18 is it something you learned after this time?
19 A. That's five years ago. I don't know that I
20 could speak to that.
21 Q. If you didn't know it, that would be one
22 explanation for why you didn't make the statement to
23 TracFone that they're using the wrong code section
24 correctly?
25 MS. SAND: Object to the extent that calls
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1 for speculation.
2 You can go ahead and answer.
3 THE WITNESS: Could be.
4 BY MR. EDWARDS:
5 Q. Do you have any other explanation for why you
6 wouldn't have called out that this was the wrong code
7 section if you had determined that it was the wrong code
8 section?
9 A. Well, they're the same. They just apply to
10 different cities.
11 Q. The -- in the bolded text, which I -- can you
12 confirm the bolded text is the text written by you;
13 correct?
14 A. Yes.
15 Q. Okay. At the beginning of the first paragraph
16 after the semicolon it says: It is our understanding
17 that this part of the RCW instead protects the company
18 that sells the airtime to TracFone.
19 Do you see that -- that statement?
20 A. Oh, now I do, yes.
21 Q. What is the basis for that understanding?
22 A. And I -- I said the basis. When it states city
23 shall not impose the fee or tax on that portion that
24 were -- which we represents charges for network
25 telephone service as purchased.
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1 Q. Let me rephrase the question. Is your
2 understanding based exclusively on the text in the
3 statute? Did you rely on anything other than the words
4 in RCW 35.21.714 in coming to that conclusion?
5 A. (Reviews exhibit.)
6 I don't believe so. I think it was very clear.
7 Q. The second paragraph there it starts, "Walmart
8 is not selling telephone service." Do you see that
9 statement?
10 A. Yes.
11 Q. What is the basis for asserting that Walmart is
12 not selling telephone service?
13 A. Well, it's a retail establishment. They are not
14 a telephone company.
15 Q. Why not?
16 A. Because they -- they cannot provide access to a
17 network telephone services.
18 Q. Why not?
19 A. Why not? Because they just sell phones and --
20 and accessories for -- for various telephone companies.
21 We really see the cards they sell, it's like gift cards.
22 You know, they don't provide the service. They provide
23 a card to connect somebody with a service, with the
24 people who can provide the service, so which TracFone
25 does for them.
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1 Q. Does the statute limit the exclusion to sales to
2 utility providers?
3 A. It limits it to sales... I know the answer to
4 this one.
5 (Reviews exhibit.)
6 I believe that's in the definition of network
7 telephone service.
8 Q. I'm not asking for definitions right now. I'm
9 asking for whether the exclusion only applies to sales
10 to utility providers. That's the term that you use
11 here.
12 MS. SAND: I'm going to object to the extent
13 that calls for a legal conclusion.
14 Go ahead and answer, Ms. Crisp.
15 THE WITNESS: I must be getting a little
16 drummy. We're not going to finish by noon, are we?
17 BY MR. EDWARDS:
18 Q. We are not, no.
19 A. So... I was pretty up on these things last time.
20 But, okay, I'd ask -- ask your question one more time.
21 MR. EDWARDS: Can you please read back the
22 question.
23 (Question was read back.)
24 THE WITNESS: No, it doesn't use the term
25 "utility providers".
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1 BY MR. EDWARDS:
2 Q. Does it use a different term that is limiting in
3 terms of who is eligible or who can be sold to?
4 A. I already had this down last time and now my
5 brain is just... out of there.
6 Yes, it uses another -- another term.
7 Now I answered that question. Can we take a
8 break? I wouldn't do it before noon except it just
9 seems like --
10 Q. Yes, how long of a break do you need?
11 THE WITNESS: Okay. (Laughter). All right.
12 Kari, when does -- when -- your phone call happens
13 straight up at noon?
14 MR. EDWARDS: Are you needing a break
15 completely between now and noon or are you looking just
16 for a short break and then we'll take a longer break at
17 noon?
18 MS. SAND: I think it makes sense if we just
19 take an early lunch if that's okay. I mean, it's close
20 enough, so --
21 MR. EDWARDS: How long are you expecting
22 your call to last, Kari?
23 MS. SAND: I probably need 15 minutes.
24 If we wanted to take a lunch break from now
25 till 12:15, is that long enough for you, Mrs. Crisp?
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1 And how about you, Kate, is a half hour for
2 lunch okay?
3 THE WITNESS: 35 minutes? Yeah, I'll try to
4 make that work. I'd prefer an hour, but...
5 MR. EDWARDS: Well, why don't we compromise
6 and do 11 -- or 12:30 which would give you nearly 45
7 minutes.
8 THE WITNESS: Yeah, that would be good.
9 MR. EDWARDS: Okay.
10 (A luncheon recess was taken
11 from 11:42 a.m. to 12:30 p.m.)
12 BY MR. EDWARDS:
13 Q. It's looks like 12:30 and we're just coming back
14 from the break. Mrs. Crisp, what did you do during the
15 break?
16 A. I had lunch and I read over the -- the codes.
17 Q. When you say "the codes", which codes are you
18 referring to?
19 A. 32A and the definitions of -- that they refer
20 to.
21 Q. 32A, what -- what specifically within 32A?
22 A. The proviso on the definition of
23 telecommunications company, definition of telephone
24 company, all that stuff. I had that down so much for
25 the last deposition, but I -- I really... my brain's not
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1 working as well this time. I'm having a hard time
2 recalling stuff.
3 Q. Did you take any notes or prepare anything
4 during your review of those provisions?
5 A. No, no.
6 Q. Okay.
7 A. I might have underlined some -- some things,
8 because I have it printed out.
9 Q. So you have printed out some statutes that you
10 now have in front of you?
11 A. Yeah, the code.
12 Q. Okay. Please put those to the side.
13 A. There you go.
14 Q. The -- the next place that I want to go is
15 Exhibit 29 from the first day of your deposition. So
16 it's not one of the documents that is in the package of
17 materials that was sent out. I don't know whether you
18 have the materials from the prior deposition in front of
19 you. I will share my screen to show the specific part
20 of Exhibit 29 that I want to talk to you. We're not
21 going to spend that much time on it, so --
22 A. Exhibit 29. Oh, that was from the last
23 deposition?
24 Q. From the last deposition, yeah. So --
25 (Inaudible due to crosstalk.)
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1 BY MR. EDWARDS:
2 Q. -- the old stack of stuff. So let me -- if you
3 give me a second, let me figure out again how to share
4 my screen.
5 MS. SAND: For the record, Exhibit 29 is
6 titled Renton Outline.
7 THE WITNESS: Oh, okay.
8 MR. EDWARDS: And for some reason I am now
9 no longer seeing the option for sharing my screen. I
10 don't know what happened in that regard or where I can
11 find it. Anybody who's more adept at -- oh, there. I'm
12 sorry. There it is right in the bottom. It's a lot
13 easier to the -- so -- all right. Does everybody now
14 see my screen?
15 THE WITNESS: Yes.
16 BY MR. EDWARDS:
17 Q. And I'm going to go up to the very top and you
18 can see it says Renton-Outline. Do you see that?
19 A. Yes.
20 Q. And I'm going to -- we had ended the first day
21 of your deposition talking about this document. And I'm
22 looking now at it looks like near the bottom of the
23 first page, there's a paragraph that's titled A,
24 possible TracFone objection. Do you see that?
25 A. Yes.
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1 Q. Okay. And it reads: TracFone has claimed in
2 the past that they do not need to pay any taxes because
3 they are not required to pay tax for service purchased
4 for the purpose of resale saying that RCW 35.21.710 --
5 or, excuse me, .714 expressly excludes charges to,
6 quote, another telecommunications company, end quote, as
7 defined by RCW 80.04.010 from utility tax.
8 Do you see that statement?
9 A. Yes.
10 Q. Do you recall testing at your dep -- testifying
11 at your deposition that you learned of that claim in the
12 December 11, 2015, email from Mr. Ford that we've been
13 talking about earlier today?
14 A. Yes.
15 Q. And is it your testimony that in that email
16 Mr. Ford made the statement that -- that you describe
17 here?
18 A. You know what, I believe it was only implied,
19 but it was implied enough for me to respond as if he had
20 said it back in 2015.
21 Q. So in terms of the -- when you say "only
22 implied," what part of this was only implied?
23 A. Well, the fact that he put... I'm going by
24 memory here. He put that -- that they don't own any
25 facilities. Then he went on to talk about, you know,
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1 resale. We went through the RCW and looked it up and I
2 saw the proviso. And I looked that up and I realized
3 that -- what he was saying, and that's why I wrote what
4 I did about how you still need to pay tax, that this
5 doesn't -- being non-facility based in your definition
6 of, you know, what that means is not enough to make it
7 so that you don't have to pay tax like the other
8 telecommunications company do.
9 Q. To the best of your recollection, is there any
10 reference in Mr. Ford's email to telecommunication
11 company or the definition in RCW 80.04.010?
12 A. My best memory of that situation is that he --
13 is that he... that they had thought that for the
14 purpose of resale, and -- and that he was implying that
15 he wasn't paying taxes. So I -- I really believe that
16 he had basically said this, but not in so many words.
17 That's why I responded the way I did in that 2015 email.
18 Q. Have you ever been shown or provided a copy of a
19 memorandum that I drafted that makes reference to RCW
20 80.04.010?
21 A. Was this in response to the Renton audit?
22 Q. I've asked you a question. Please answer the
23 question. Have you ever --
24 A. Never in response to the Renton audit.
25 Q. That was not the question. Have you seen or
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1 been provided a copy of a memorandum that I drafted that
2 makes reference to RCW 80.04.010?
3 A. Never in response to the Renton audit.
4 Q. How about in other contexts?
5 A. I can't speak to something outside the Renton
6 audit in this venue.
7 Q. You're refusing to answer the question?
8 A. Yes. Privacy concerns.
9 Q. I am not asking you to disclose any information
10 other than whether you've seen a document that I wrote.
11 It is not --
12 (Inaudible due to crosstalk.)
13 THE WITNESS: -- that if -- sorry. If I
14 wrote that document, it was in respect to something
15 outside of this audit, and it was -- it was something to
16 do with an audit that I won't speak to.
17 BY MR. EDWARDS:
18 Q. Are you testifying truthfully when -- in
19 drafting -- or actually... strike that.
20 Isn't it true that your awareness of RCW
21 80.04.010 was not a result of inference from Mr. Ford's
22 December 11, 2014, email, but rather a memo that you saw
23 that I drafted in 2017?
24 A. No, I went to those codes at -- in 2015,
25 understood the ramifications and wrote back to Mr. Ford
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1 regarding the ramifications. Very same code.
2 Q. What records do you have to prove the truth of
3 that statement?
4 A. Just look at it, we call it the December 11,
5 2015, but it actually was our response was January 8th,
6 20 -- 2016, and in that --
7 Q. What -- what are you looking at when you say
8 that?
9 A. Pardon me?
10 Q. You were looking at something?
11 A. The little thing that you want me to send you
12 that gives me the dates of these emails. If you want
13 answers, I -- I can't memorize all that.
14 Q. What I want is truthful answers.
15 A. Right. [Distorted audio] truth.
16 Q. We're looking at a document that you prepared in
17 2018, I believe. And you are telling me that what you
18 wrote in 2018 was based on an objection that you saw in
19 2014 in which you inferred something that was not in
20 that document.
21 A. Yes, and I made it very obvious by my response
22 that those things were inferred, that my response talked
23 about reselling both from some -- a carrier and to a
24 retail agent. I understood exactly what he was talking
25 about and exactly which parts of the code that he was
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1 talking about or I would not have responded that way.
2 Q. And so your response to Mr. Crisp --
3 (Inaudible due to crosstalk.)
4 THE WITNESS: -- talk over me; right?
5 BY MR. EDWARDS:
6 Q. Finish your answer.
7 A. Okay. So I -- I was fully aware of these codes,
8 the ramifications of the proviso, the whole idea of
9 resale, all of that was already part of the audit trail
10 of this audit.
11 Q. So in December of 2014 or January of 2015 that
12 you brought up, between the December 11 email from
13 Mr. Ford and the January 8th response, you made the
14 inference, researched the definition in 80.04.010, and
15 included a discussion of that in your January 8th
16 response; is that your testimony?
17 A. Yes, yes.
18 Q. Okay.
19 I am going to now stop sharing this document and
20 go back to Exhibit 63. Bear with me for just a minute.
21 And do you see my screen now?
22 A. Yes.
23 Q. And again this is the January 8th response to
24 Mr. Crisp's December 11, 2015, email?
25 A. Yes.
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1 Q. And you will agree that in the blue text there
2 is no reference to RCW 80.04?
3 A. Right. It's -- it's actually referred to, I
4 believe, in the proviso in 35.21. So --
5 (Inaudible due to crosstalk.)
6 BY MR. EDWARDS:
7 Q. Well, let me --
8 A. Okay.
9 Q. The question was: Is there a reference to that
10 statute in the blue text, yes or no?
11 A. RCW 35.21.
12 Q. RCW 80.04.010.
13 A. Not a direct reference, but an indirect
14 reference.
15 Q. Is there anything in the text of your response
16 that makes reference to RCW 80.04.010?
17 A. It's not written there, but it says it is part
18 of the RCW instead protects the company that sells the
19 airtime. There it is.
20 Q. Well, you testified just a minute ago that your
21 answer here made specific reference to RCW 82 --
22 80.04.010, but I don't see any reference.
23 A. Once again, it's a tacit reference. You -- you
24 couldn't have come up with this unless you had read the
25 proviso and the definition of the -- telecommunications
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1 company.
2 Q. Well, can you tell me why in 2015 you don't make
3 an explicit reference, and in 2018 you do, if everything
4 that you did in 2018 was based on what you knew and had
5 done in 2015?
6 A. Could you say that one more time?
7 Q. Why are you lying to me about how you drafted
8 this document?
9 MS. SAND: Objection. Argumentative.
10 BY MR. EDWARDS:
11 Q. I recognize that you are concerned about
12 protecting confidentiality under the nondisclosure
13 agreements that you have. But it is the crime of
14 perjury to -- to falsely testify to try to hide the --
15 the source of your information because of your concern
16 about confidentiality. Do you understand that?
17 A. Yes. However -- let's put it this way. I don't
18 believe that I can be forced to disclose something that
19 I have a legal agreement not to disclose.
20 Q. I'm not asking you to disclose anything.
21 (Inaudible due to crosstalk.)
22 BY MR. EDWARDS:
23 Q. I'm asking you to tell me the truth about where
24 you learned what TracFone's claim was with respect to
25 the definition of a telecommunications company and to
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1 admit that you did not learn it from Mr. Ford's December
2 11, 2015, email and, quite frankly, an admission that
3 you didn't learn it from that source would be sufficient
4 for me. I will not push you about where you did in fact
5 learn it from.
6 A. But if you just look at this, this happened in
7 2015, years before. And --
8 Q. Years before you were told about RCW 80.04.010,
9 which is why --
10 A. I don't --
11 Q. -- you don't talk about it until after it had
12 been called to your attention.
13 A. But if you look at this email, this response we
14 did on January 8, 2016, long before that -- the Renton
15 outline was put together, it's obvious that these
16 concepts were already in the Renton trail, the Renton
17 email trail.
18 Now, if I got further information outside the
19 audit, that really doesn't matter since this is already
20 in the email trail. That -- he's saying non-facilities
21 based; he's saying resale. I come back and say no, you
22 know -- you know, the... you know, I have to disagree
23 with your interpretation of the RCW coded below which he
24 quotes. And it's our understanding that RCW protects
25 the company that sells the airtime.
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1 You have -- you know, I'm talking about the
2 people who sell the airtime and that Walmart's not
3 selling the telephone services. It's all -- all the
4 concepts are there. I admit that -- that I -- I might
5 have overstated the certainty which he's -- you know, he
6 brought it up.
7 He brought it up. I responded to it. I
8 understood what he was talking about. The RCWs show
9 what he was talking about, but, you know, he -- he
10 wasn't explicit and if I -- if I stated it that way,
11 yeah, maybe, you know, there was -- there was other
12 factors.
13 Q. What -- what -- the other factors means
14 something that happened after December 11, 2015.
15 A. I guess I could meet you that far and say
16 perhaps.
17 Q. We're looking at Exhibit 63 right now, at page
18 63 of that, and we are looking at the blue text that is
19 the text of Mr. Ford's December 11, 2015, email. You
20 would agree with me that there is no reference to RCW
21 80.04.010; correct?
22 A. Yes, but it's quoted.
23 Q. Yes or no.
24 A. I already told you yes, it's quoted in that RCW,
25 he does quote.
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1 Q. You would also agree that there is no reference
2 to "telecommunications company" in this email; correct?
3 A. Yes, there is a reference to it inside of the
4 definitions that are embedded in 35.21, but none in the
5 email itself.
6 Q. Did you make any reference to it in your
7 response?
8 A. Let's see all I wrote down when I did. We
9 talked about resale.
10 Q. I'm -- I'm asking -- look at your response right
11 on the screen.
12 A. You aren't showing me the whole document.
13 Q. Okay. What -- what --
14 (Inaudible due to crosstalk.)
15 BY MR. EDWARDS:
16 Q. So you have the whole document available to you.
17 A. Oh, okay.
18 Q. But I don't want you to look at something that's
19 not the document that I'm asking you about.
20 A. Okay. Because I -- I -- I went through it
21 and -- okay. So this one covers the resale issue. It
22 covers -- also covers a Internet -- interstate and
23 Internet... I'm still turned around.
24 Q. I'm asking you what I hope is a very simple
25 question.
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1 A. Uh-huh.
2 Q. There is no reference to RCW 80.04.010 anywhere
3 in your response to Mr. Crisp; correct?
4 A. Okay. We didn't put the numbers on there, but
5 right now I'm not bringing up what that is and you won't
6 let me look at it. It's the definition, isn't it, of
7 network telephone services?
8 Q. The question is whether you made reference to
9 that statute in this text or not.
10 A. And all I can say, since the reason I can't
11 bring up the -- the code in my brain, is that those
12 numbers do not appear in here.
13 Q. Thank you.
14 A. The number --
15 Q. That's the question.
16 Does the word tel- -- does the phrase
17 "telecommunications company" show up anywhere in that
18 text, yes or no?
19 A. Just a second.
20 Q. The text that you wrote.
21 A. (Reviews exhibit.)
22 What's there is it says charges for network
23 telephone service. If you look up the definition of
24 network telephone service, it mentions another
25 telecommunications company as I understand. So you look
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1 up another telecommunications company, and that's how
2 you get there. So once again, it's -- it's -- it's
3 parts of the essence of what I wrote.
4 Q. That answer is not responsive to the question.
5 A. Oh.
6 MR. EDWARDS: Can the court reporter please
7 read back the actual question.
8 (Pause in the proceedings.)
9 (Question was read back.)
10 THE WITNESS: The phrase isn't there, only
11 implied.
12 BY MR. EDWARDS:
13 Q. Let's jump down to this next-to-the-last
14 paragraph that starts, "Another important point to
15 note." Do you see that? I'm at the bottom of page 63
16 of Exhibit 63.
17 A. Yes.
18 Q. There's, "Another important point to note is
19 that it is not sales that are taxed..." Do you see
20 that?
21 A. Yes.
22 Q. How did you come to that determination?
23 A. We -- we discussed usage at the last deposition
24 and how I had mistakenly thought that usage was a big
25 deal, but it isn't. It's revenues that are taxed, not
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1 usage.
2 Q. I'm not asking you what it actually says in the
3 statute. I'm asking you how you came to the conclusion
4 that is stated in this document.
5 A. We -- I had been working on a lot of telephone
6 audits where the... the charges were done on usage.
7 They were post-paid telephone audits. And -- and -- and
8 that's how they got their revenue. So that was
9 important in those audits.
10 But this is a prepaid audit and I -- as I've
11 said before, it was wrong for me to be looking at usage
12 because TracFone doesn't charge for usage. They charge
13 prepaid. Regardless of what the person uses, their
14 revenues aren't connected with that. So I made a
15 mistake here, but I've corrected it later. And it never
16 had any bearing on the final audit schedules and how the
17 taxes were done.
18 Q. I'm going to again ask you to stop giving
19 speeches and answer the questions that I'm asking you.
20 This sentence makes a statement. What was the
21 basis for why you made that statement?
22 A. I just told you. Do you want me to repeat
23 myself?
24 Q. What... Let me try this a different way.
25 You've testified that, in drafting this response, you
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1 had focused on reading the RCWs; is that correct?
2 A. Yes.
3 Q. Did you see anything in the RCWs while you were
4 preparing this document that makes any reference
5 whatsoever to usage?
6 A. Nothing.
7 Q. Then what was the basis for your asserting that
8 the tax is imposed on usage?
9 A. This is an error that we've gone over before
10 that I was used to doing prepaid and I -- they -- they
11 tax on usage because that's where they get their
12 revenue. But the usage isn't used in prepaid. This was
13 inappropriate. I fixed it later.
14 Q. Does the statute impose tax differently
15 depending on whether a company is -- or whether phone
16 service is prepaid or post-paid?
17 A. No, it's all about revenue whichever way you get
18 it.
19 Q. Is the statement talking about how post-paid
20 companies report their taxes or is it talking about how
21 the tax works? Let me try a different approach here.
22 Am I correct in understanding what you've been
23 saying that your assertion that the tax is imposed on
24 usage was not based on your review and interpretation of
25 the statute, but instead was based on your experience in
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1 how you had observed post-paid companies reporting
2 utility tax?
3 A. The latter. When I answered earlier that I did
4 it according to the statutes, that would be the first
5 two paragraphs. Once I got down there, I was talking as
6 you described just now.
7 Hey, did you just erase a part of that?
8 Q. Did I? Oh, shit, I hope not.
9 A. Oh, no, here it is. Oh here, usage. You just
10 went up --
11 Q. Yeah, yeah. It is a Word document, so there's a
12 risk of that. All I was trying do is move my cursor.
13 A. Okay.
14 Q. Let's look at this sentence that I highlighted
15 here. "All the utilities providing services through
16 cards sold at Walmart must pay the utility tax
17 themselves." Do you see that statement?
18 A. Yes.
19 Q. What did you mean when you said that?
20 A. When we do audits, when we [distorted audio]
21 companies, we ask them if they're paying taxes based on
22 cards they're selling in stores. And they always say
23 yes, and they have -- have that revenue set aside. Once
24 in a while they'll say no and we'll say, Well, you need
25 do it, give us your revenue figures, and then we -- we
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1 have them, and they pay it because they know that they
2 owe taxes on those -- on that. These are prepaid
3 facilities.
4 Q. So this is an assertion of what the law is, that
5 the law requires utilities providing services through
6 cards sold at Walmart to pay utility taxes. Am I
7 understanding that correctly?
8 A. I suppose, yeah, I guess if I read it really
9 carefully it's -- it's more of a assertion of what the
10 law says.
11 Q. How did you come to the conclusion that that's
12 what the law says?
13 A. It is -- it's what I describe in the first two
14 paragraphs.
15 Q. So it's the first three paragraphs that are
16 based on the statutory language of RCW 35.21.714? Am I
17 under -- you're nodding. Is that a "yes"?
18 A. No, I'm thinking while I'm nodding, but I'm not
19 talking to myself, Kate, so...
20 All right. Yeah, I think so.
21 Q. Okay. Bear with me for just a second. I'd like
22 to have you open envelope N.
23 MR. EDWARDS: I think we're up to Exhibit 71
24 now?
25 (Exhibit No. 71 marked.)
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1 MS. SAND: Did you say M as in Mary or N as
2 in Nancy?
3 MR. EDWARDS: N as in Nancy.
4 MS. SAND: Okay.
5 THE WITNESS: Oops.
6 BY MR. EDWARDS:
7 Q. Do you have that in front of you?
8 A. Uh-huh.
9 Q. Do you recognize it as a copy of RCW 35.21.714?
10 A. Well, I don't recognize it, but I can believe
11 you if you say that's what it is.
12 Q. And this is the same statute that Mr. Ford cited
13 in his December 11, 2015, email?
14 A. Yes, and here's a 80.0410.
15 Q. And if you -- you look at it --
16 (Inaudible due to crosstalk.)
17 BY MR. EDWARDS:
18 Q. Please don't talk over me.
19 A. I know. I hadn't finished. The proviso's also
20 in there as we discussed.
21 Q. This will go much faster if you only answer the
22 questions that I'm asking you and not questions that I
23 have not yet asked you.
24 Where it says, "PROVIDED," in all caps, is that
25 the proviso that you're referring to?
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1 A. Yes.
2 Q. Okay. And the first part of the proviso says,
3 "... the City shall not impose the fee or tax on that
4 portion of network telephone service which represents
5 charges to another telecommunications company"?
6 A. Uh-huh.
7 Q. And then there's the definition of RCW
8 80.04.010?
9 A. Uh-huh.
10 Q. Is there -- there's no reference in that section
11 that I just read to resale; correct?
12 A. (Reviews exhibit.)
13 Yes, there is on second to the last line of the
14 proviso.
15 MR. EDWARDS: Can you read back the question
16 that was asked.
17 BY MR. EDWARDS:
18 Q. And listen to the question that was asked.
19 (Question was read back.)
20 BY MR. EDWARDS:
21 Q. Did the words that I read contain the word
22 "resale"?
23 A. So you're not actually asking what's in
24 35.21.714.
25 Q. No, I'm not.
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1 A. You just want to know what you read.
2 Q. I'm -- I'm trying to break down this provision
3 piece by piece. And when you jump ahead to other things
4 that I'm not asking you about, everything gets jumbled
5 up. Do you understand that? And let's start -- the
6 proviso that starts at "PROVIDED" is quite a few lines
7 long; correct?
8 A. Yes.
9 Q. It's more than half of the text of the statute,
10 of that subsection 1; correct?
11 A. Yes.
12 Q. Okay. So there are multiple items within that
13 proviso; correct?
14 A. Yes.
15 Q. The first of a number of items in that proviso
16 is charges to another telecommunications company;
17 correct?
18 A. Yes.
19 Q. The proviso relating to charges to another
20 telecommunications company doesn't say anything about
21 sales for resale; correct?
22 A. Yes.
23 Q. Okay. At the end of the proviso, there's
24 another section that excludes charges for network
25 telephone service that is purchased for the purpose of
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1 resale; correct?
2 A. Yes.
3 Q. So the exclusion of charges to another
4 telecommunications company and charges for the purpose
5 of resale are two different provisions; correct?
6 MS. SAND: Object to the extent it calls for
7 a legal conclusion.
8 Go ahead and answer.
9 THE WITNESS: It's one provis- --
10 provision -- proviso that has multiple aspects, so I
11 can't see how you can say that, you know, they're --
12 they're two provisos.
13 BY MR. EDWARDS:
14 Q. They're two different aspects of the same
15 proviso, aren't they?
16 MS. SAND: Same objection.
17 Go ahead and answer.
18 THE WITNESS: It's talking about charges to
19 another telecommunications company. Those charges, you
20 know, are for the purpose of resale. So I don't see how
21 you can separate those two concepts.
22 BY MR. EDWARDS:
23 Q. Would you agree that -- well... strike that.
24 Is it your testimony that in order to fall
25 within the proviso, the charge must be a charge to
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1 another telecommunication company and it -- and it must
2 also be for the purpose of resale?
3 A. (Reviews exhibit.)
4 Must be getting close to another break time.
5 (Reviews exhibit.)
6 Q. If you don't know the answer to my question, I
7 would prefer it if you tell me that you don't know.
8 A. Okay. Then I'll have to hear it one more time,
9 see if I don't know, because I thought I knew it, but
10 I'm having a hard time putting it together, so go ahead.
11 MR. EDWARDS: Can you please read back the
12 question.
13 (Question was read back.)
14 THE WITNESS: The more I think about it,
15 that resale argument... [distorted audio].
16 THE REPORTER: Sorry, I didn't hear that.
17 THE WITNESS: We can schedule a break right
18 after this; okay? Because I'm getting tired again.
19 All right. So the charges to another
20 telecommunications company, that has to do with a
21 problem with we can't tax, like, the carriers because
22 they're selling to TracFone who is another
23 telecommunications company, and it does not protect
24 TracFone when they sell cards to Walmart because they're
25 not a telecommunications company. Yeah, I don't think
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1 that resale's a big deal in there, because they're
2 talking charges to, it's obviously a sale involved. So
3 maybe give me the question one more time. I think I'll
4 be able to say no.
5 (Inaudible due to crosstalk.)
6 BY MR. EDWARDS:
7 Q. Let me try to rephrase the question.
8 A. Okay.
9 Q. Are there two different exclusions: One
10 exclusion for sales to another telecommunications
11 company, and a second exclusion, a separate exclusion
12 for sales for the purpose of resale, or is there only
13 one exclusion that requires both that there be another
14 telecommunications company and that it be for the
15 purpose of resale?
16 MS. SAND: Object to the extent that calls
17 for a legal conclusion.
18 You can go ahead and answer, Mrs. Crisp.
19 THE WITNESS: Okay.
20 (Reviews exhibit.)
21 And you're saying are they two different
22 provisions.
23 BY MR. EDWARDS:
24 Q. I'm asking for your understanding of whether
25 there -- it's one or two provisions.
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1 A. I'm going to say one. It's all one proviso.
2 Q. So -- so you have to meet all of the items that
3 are reflected there in order to qualify; is that my --
4 am I understanding your answer correctly?
5 A. Weren't we going to take a break... before the
6 next question?
7 Q. Answer my question, we'll take a break.
8 A. (Laughter). You asked me a question --
9 Q. I'm trying to get the -- we're -- we're still on
10 the same question and I'm trying to get a clarification
11 on your answer.
12 A. I know. I think I need more coffee or
13 something. So let's just say yes. Not that I remember.
14 I'll get back with you.
15 Q. How long of a break do you think you need?
16 A. I guess I'm going to say ten minutes. I... I
17 want to get some exercise and some coffee and maybe a
18 little more food. So...
19 Q. I would like to try to finish this up and I
20 don't have a whole lot more. And, quite frankly, I had
21 already expected that we would have been finished. But
22 for all of your speeches, we might have been. But so in
23 light of that, do you still feel that you need ten
24 minutes or can you do something shorter?
25 A. We can do five. I just -- I just want to be
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1 able to answer your questions a little more sharply. I
2 didn't sleep much last night. So I'll try to get myself
3 invigorated so I can understand and reply better.
4 Q. I appreciate that. I --
5 MS. SAND: Actually could we just come back
6 to the record at 1:30?
7 THE WITNESS: Sure.
8 MR. EDWARDS: We'll do that.
9 (A break was taken
10 from 1:19 p.m. to 1:32 p.m.)
11 BY MR. EDWARDS:
12 Q. One last question with respect to RCW 35.21.714.
13 Is there anything in this statute that makes any
14 reference to usage?
15 A. No.
16 And I think I can answer questions you asked
17 before now. I spent a lot of time marking this up
18 and -- and my -- my memory started coming back. So if
19 you'd like me to redress that, that's fine. If not, we
20 can go on.
21 Q. Okay. If we look at the first sentence of RCW
22 35.21.714, talks about the tax being upon the business
23 activity of engaging in the telephone business which is
24 measured by gross receipts or gross income; correct?
25 A. Yes.
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1 Q. Would you agree that a company needs to be
2 engaged in the business -- in the telephone business in
3 order to be subject to the utility tax?
4 A. Yes.
5 Q. Is there anything in your January 8th, 2016,
6 email to TracFone analyzing whether or not TracFone is
7 engaged in the telephone business?
8 A. (Reviews exhibit.)
9 No.
10 Q. I'm going to go back to, I think it's page 38
11 here.
12 MS. SAND: Which exhibit?
13 MR. EDWARDS: This is still on Exhibit 63.
14 I'm going to find the...
15 THE WITNESS: Are we through with 71?
16 BY MR. EDWARDS:
17 Q. We are, yes.
18 I'm sorry, it's -- realized that this is the
19 issue where the -- let me direct your attention instead
20 to Exhibit 66 which was envelope E.
21 MS. SAND: Mr. Edwards, did you say envelope
22 E?
23 MR. EDWARDS: E as in Edwards, yes. We
24 previously have talked about it and it got marked as
25 Exhibit 66.
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1 THE WITNESS: (Sotto voce comments.)
2 MS. SAND: I've got it.
3 BY MR. EDWARDS:
4 Q. Okay. And if it helps, Mrs. Crisp, it is the
5 October 2014 report to Renton.
6 A. (Sotto voce comments.)
7 Oh, right, that wasn't even over here. Uh-huh.
8 E. E? Where does it go, report to Renton.
9 (Sotto voce comments.)
10 Yes, I thought this was it. 30 -- Bates number
11 37? Yeah, October --
12 Q. Yes, exactly.
13 A. Great.
14 Q. And -- and this has at, yeah, pages 38 through
15 42 the text of your September 24, 2014, email to
16 TracFone that includes the portions that were redacted
17 out of Exhibit 63; correct?
18 A. Yes.
19 Q. Okay.
20 Is there anything in this document -- again, I'm
21 referring to Exhibit 66, the September 24, 2014,
22 email -- that analyzes whether or not TracFone is
23 engaged in the telephone business?
24 A. (Reviews exhibit.)
25 Well, it has the definition of "telephone
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1 business" here in the -- the RMC quoted. Which is kind
2 of a salient point of taxability.
3 Q. So if you quote the definition of "telephone
4 business" to me, I should understand that that means
5 you've determined that I meet that definition and am
6 subject to tax as a telephone business?
7 A. Well, I would have liked to have heard back from
8 Mr. Ford saying, But we're not a telephone business.
9 But I --
10 (Inaudible due to crosstalk.)
11 BY MR. EDWARDS:
12 Q. Do you -- do you make any argument in your
13 September 24 email asserting that they are a telephone
14 business?
15 A. I -- I really let the -- I would say no because
16 I really let the RMC speak for itself.
17 Q. I'm going to change gears a little bit here.
18 On -- at Mr. Malone's deposition yesterday, he testified
19 that sometime this past fall he purchased a TracFone
20 airtime card from a Fred Meyer in Renton. Were you
21 aware of that?
22 A. I knew he had purchased one at some point. I
23 didn't know where, exactly when. I don't recall.
24 Q. Do you agree that Fred Meyer had purchased that
25 airtime card from TracFone before Fred Meyer sold it to
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1 Mr. Malone?
2 A. Yes, the card. They would have to.
3 Q. What is your understanding of how Renton's
4 utility tax applies to Mr. Malone's purchase of a
5 TracFone prepaid airtime card from Fred Meyer?
6 A. I had -- when doing the audit, I had assumed
7 that there was -- well, I think there probably was,
8 because the wholesale agreements, the money changed
9 hands at the point when the card went from TracFone to
10 the retail store. I realized later it's possible that
11 they would go back and charge [distorted audio]. I
12 don't -- I never saw the contract.
13 But it's my understanding that... that the --
14 that TracFone makes their money on the sale of cellular
15 service in these situations when they sell the card.
16 But the -- the retail store does not buy cellular
17 service to resell. They buy a card to sell. And then
18 that card brings TracFone into the equation and they
19 provide the cellular service. That's -- that's our
20 position, that they're not selling the pre -- the --
21 the -- the telephone service. They're selling -- they
22 sell -- they're selling cards. I mean, obviously they
23 also sell a telephone and accessories, those kinds of
24 things. They are physical items, but not cellular
25 service.
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1 Q. The question was: How does the utility tax
2 apply to Mr. Malone's purchase of a prepaid airtime card
3 from Fred Meyer? Can you walk me through the
4 application of the code to that transaction?
5 A. Okay. I think the first thing you have to
6 establish is that TracFone is a telephone business. We
7 also have to establish that this tax is a utility tax
8 based on gross receipts. So the gross receipts are
9 received when -- when they hand the card over to the
10 retail outlet. But the service happens after the card
11 leaves the possession of the retail outlet. It happens
12 when -- when the customer becomes a TracFone customer.
13 Only after they become a TracFone customer do they
14 actually receive access to network telephone services,
15 access -- access that TracFone can provide and Fred
16 Meyers cannot. So...
17 Q. Let me try this a different way.
18 A. Okay.
19 Q. Okay. Let's assume for purposes of trying to
20 walk through the mechanics of how the tax works that
21 Fred Meyer sold the card to Mr. Malone for $50; okay?
22 Are you following me so far?
23 A. Yes.
24 Q. Let's also assume that TracFone sold the card to
25 Fred Meyer for $40; okay? How do we determine what the
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1 measure of tax is that TracFone owes as a result of
2 Mr. Malone purchasing an airtime card from Fred Meyer?
3 A. The -- the way they -- the utility tax is based
4 on gross revenues, and the gross revenue that -- that
5 TracFone receives is the $40, because that -- that's
6 what they make when they, you know -- when they sell the
7 card, but they also incur obligation to provide network
8 telephone services with respect to that card. So
9 it's -- it's a -- it's a utility activity. It's the...
10 It's the providing a cellular service on a -- by
11 TracFone with an intermediary helping to set them -- the
12 customer up with TracFone on the other end. They don't
13 make the $50. They only make the $40 in that situation.
14 TracFone only receives revenue in the amount of $40.
15 Q. Is it your testimony that TracFone is subject to
16 Renton city utility tax on the $40 that it received from
17 Fred Meyer for the sale of the airtime card to Fred
18 Meyer?
19 A. Yes, because that is the compensation that
20 TracFone receives for the provision or the promise of
21 provision of network telephone services or access to it.
22 They're the utilities company involved and they made $40
23 as part of their gross revenue, they owe 6 percent tax
24 on that.
25 Q. So the $40 that Fred Meyer pays to TracFone is
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1 TracFone's gross revenue from the sale of network
2 telephone service; correct?
3 A. Yes. It's gross revenue from operating a
4 telephone business.
5 Q. If that $40 is revenue for network telephone
6 service, and Fred Meyer has purchased that for the
7 purpose of reselling it, and in fact did resell it to
8 Mr. Malone, why doesn't the proviso in RCW 35.21.714 for
9 charges for network telephone service for the purpose of
10 resale apply?
11 A. Because Fred Meyer did not purchase network
12 telephone service.
13 Q. Well, you just testified right before this that
14 the $40 was gross income from the sale of network
15 telephone service. You can't have it both ways.
16 A. But the -- the sale that they made was -- was...
17 to -- (laughter). Let me see if I can say this
18 straight. The sale that they made was the -- their --
19 it's part of the gross income they make for tel- --
20 telephone business; all right? They got that money for
21 operating as a telephone business. If they weren't a
22 telephone business, they would never have received that
23 funds. It's part of gross income. And that gross
24 income is -- is -- is part of their telephone business.
25 It owes the 6 percent of the tax.
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1 But what they did actually is they sold a card
2 to a retail establishment who actually went and they
3 apparently charged $10 to connect -- give that card into
4 the hands of one of TracFone's future customers, and the
5 card is no good until that sale is -- is completed. So
6 you have to --
7 (Inaudible due to crosstalk.)
8 BY MR. EDWARDS:
9 Q. Let's stop there. What is --
10 (Inaudible due to crosstalk.)
11 BY MR. EDWARDS:
12 Q. -- the actual basis --
13 A. You're talking over me.
14 So what happens in between that sale and the
15 connection of that customer to, in this case Nate --
16 although I don't know if he activated it. He -- that
17 happens in between, is simply a means, an efficient
18 means to get TracFone connected to their customers.
19 There's -- there's no sale of telecommunications to Fred
20 Meyers, but there is sale of telecommunications to the
21 customer by TracFone using an intermediary. That's --
22 Q. I'll have to admit, I have no idea what you just
23 said.
24 A. Really? (Laughter). Well, now you know.
25 Q. Let's try to break this down a little bit. And
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1 please, I would -- we need to keep this in discreet
2 pieces. When you go off on a ten-minute discussion of
3 something and say 15 different things, I don't know
4 which of the 15 different things I should be focused on
5 and which of them you think actually matters. So I want
6 to do this one small piece at a time. I'm going to ask
7 you a series of yes-or-no questions. I want a yes-or-no
8 answer to each of them and so that we can try to get
9 done before midnight tonight.
10 Is it correct that a company must be engaged in
11 the telephone business to be subject to utility tax?
12 A. Yes, this particular utility tax.
13 Q. Is it correct that when a company is engaged in
14 the telephone business, it is only subject to tax on
15 gross income from network telephone service?
16 A. No, they -- all they have to do is provide
17 access to network telephone... service. They don't have
18 to actually be the ones that provide it. They have to
19 provide -- they can provide access to.
20 MR. EDWARDS: Can you read back that answer.
21 (Answer was read back.)
22 BY MR. EDWARDS:
23 Q. Let me try a different approach. TracFone sells
24 handsets; is that correct?
25 A. Yes.
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1 Q. It sells handsets to Fred Meyer; correct?
2 A. Uh-huh.
3 Q. It also sells handsets to retail purchases;
4 correct?
5 A. Uh-huh.
6 Q. Mr. Malone could have purchased a handset from
7 TracFone by going to TracFone.com; correct?
8 A. Yes.
9 Q. Did TRS assess Renton utility tax on any income
10 that TracFone got from the sales of handsets?
11 A. No.
12 Q. Why not?
13 A. There's a provision in the code that precludes
14 that. It's -- it's got some fancy name for equipment.
15 And if I had the code, I could give that to you. But
16 it -- we're not allowed to tax equipment, so none of
17 that was taxed for utility.
18 Q. Is it fair to say that only certain types of
19 income of people who are engaged in the telephone
20 business is subject to tax?
21 A. I think it's more accurate to say that all
22 income is taxable with certain exclusions. It has to be
23 specifically excluded to be removed from their taxable
24 income.
25 Q. Okay. Let's -- let's go back to Exhibit 71
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1 then, which is the copy of RCW 35.21.714.
2 A. Okay. We're getting more things open and my
3 organizational skills are breaking down. So let's --
4 let's see what we can do.
5 Q. It's the statute that we were talking about
6 before the last break.
7 A. Yeah, I filed it. Do you remember what the name
8 of the -- the letter was?
9 Q. It was letter N.
10 A. Ah, gotcha.
11 Q. Okay.
12 Can you tell me where in this statute you see
13 that all of the tax of a telephone business is taxable
14 unless it's exempt?
15 A. Yeah, it's right here at the end of the first
16 line, "... engaging in a telephone business which is
17 measured by gross receipts or gross income..."
18 Q. And can you read the rest of that sentence?
19 A. (As read): ... may impose the fee or tax, if it
20 desires, on one hundred percent of the total gross
21 revenue derived from intrastate telephone service
22 [distorted audio].
23 Q. So isn't it true that what you're permitted to
24 be taxed is only gross revenue from intrastate toll
25 telephone service?
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1 A. Sure looks like it.
2 Q. Before I pointed that out to you, were you even
3 aware of that?
4 A. Yes, I was.
5 Q. Then why didn't you answer it that way when I
6 asked you the question?
7 A. What way?
8 Q. To say that there's only -- that you can only
9 tax intrastate toll telephone service when instead you
10 testified you can tax everything unless it's explicitly
11 exempted.
12 A. (Reviews exhibit.)
13 You'll see down in the proviso and it starts to
14 exclude things like interstate services. Wouldn't that
15 be redundant if they basically were saying that you
16 could only do gross receipts on intrastate toll
17 services? I think what it is, is this is a telephone
18 company that's doing intrastate toll services and
19 they -- they're being taxed on their gross receipts. So
20 I -- I really think you'd need to ask a lawyer
21 specifically about that. But that's how I see it. Why
22 would it say gross income and then -- then cut it down
23 to that little intrastate toll telephone services.
24 You'd need to get a -- you know, some kind of further...
25 legal analysis of that. But --
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1 Q. Isn't that something that TracFone asked to
2 engage in multiple times over the five years of this
3 audit?
4 A. Just to finish the -- my -- what I was saying
5 before you started is that seems like when they sell to
6 the store, what they're doing is they're engaging in
7 telephone business and what they're being taxed on is
8 intrastate telephone business that they will be -- will
9 be engaging in because of what the store will do with
10 the cards, that they will give them the cards so they
11 can start being TracFone customers. So I don't -- I
12 don't see a conflict with -- with this RCW. And I
13 didn't --
14 Q. Explain to me how this RCW applies to the -- to
15 Mr. Malone's $50 purchase of an airtime card from Fred
16 Meyer. How does that result in TracFone having gross
17 income from the sale of intrastate toll telephone
18 service?
19 A. They made $40 on -- on that sale. It just...
20 And when he bought it, a store was reimbursed for that
21 money, because that card can hook them up to TracFone
22 who will be Mr. Malone's access to network telephone
23 services.
24 Q. So is it your testimony that the $40 that Fred
25 Meyer paid to TracFone is gross income from the sale of
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1 intrastate toll telephone service?
2 A. It would be part of their gross income. That
3 they just simply obtaining a customer through an
4 intermediary, somebody who goes in between and connects
5 the two parties without actually taking ownership.
6 That's how I see it.
7 Q. I'm not asking you how you see it.
8 (Inaudible due to crosstalk.)
9 BY MR. EDWARDS:
10 Q. I'm asking you to describe -- the fact that it's
11 gross income is not enough in and of itself; correct?
12 They get gross income from the sale of handsets and that
13 doesn't make it taxable; correct?
14 A. Well, the way we do it as auditors, we look at
15 gross income and then we start subtracting things that
16 are not taxable. So that's how we look at it. If a
17 lawyer tells me that's not correct, then I would change.
18 Q. I'm asking you what the -- what the statute says
19 is required to be done, not how you do it.
20 A. The --
21 Q. How you do it isn't -- doesn't make it right.
22 A. Legal determinations are beyond my pay grade. I
23 am telling you how I see it and how I determine it as an
24 auditor. That's the most I can do for you. If you want
25 a legal determination, you have to get it from one of
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1 the lawyers or one of the experts. And if you want to
2 know how the auditor was looking at it when she did the
3 audit or how I look at it now, that's what I can tell
4 you. I feel really confident the way I'm looking at it
5 is right, but that's as far as I can go.
6 Q. How much money do you expect to make from your
7 assessment of TracFone?
8 A. Right now we have made zero. And I'm putting in
9 a lot of hours. I'm making zero. So just depends on
10 how -- how much tax recovery Renton gets. Because the
11 more they get, then we're on a contingency basis. If
12 they get --
13 Q. So it's in your financial best interest to make
14 the assessment against TracFone as large as possible?
15 A. It's in my financial interest to make the
16 assessment against TracFone legal and fair and able to
17 withstand a legal challenge. We cannot assess money
18 that is not legally -- legally owed to our client. And
19 if we do by some kind of mistake, like leaving out the
20 ZIP Code, we really depend on the taxpayer to show us
21 our mistake. It's a very complicated -- complicated
22 audit. And our intention is to do it right, accurately,
23 to not go beyond the bounds of the law.
24 Q. How did you determine that TracFone met the
25 statutory definition of a network telephone business?
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1 What factual development did you ask about TracFone and
2 how it does its business?
3 A. Are you talking about back when I was doing the
4 audit or -- or my understanding now?
5 Q. During the course of the audit.
6 A. During the course of audit, I think I was
7 leaning heavily on what was intuitively obvious. I
8 mean, people understand that TracFone is a telephone
9 company and they pay for that service. I -- I did go to
10 the -- the codes during that time as you can see by
11 the -- the 2015 -- 2016 email and looked at it and found
12 the codes backed up that -- that understanding that they
13 were a telephone business. They provide access to a
14 network telephone, I mean, to network telephone
15 services, and they... you know, they meet all the
16 qualifications.
17 So it's not simple. I can't give you super
18 simple quick answer, but I think I've answered that
19 question already during this deposition to what should
20 be to your satisfaction.
21 Q. Isn't it true that tax only applies in
22 accordance with what the statute and the rules say it
23 applies to?
24 A. Yes.
25 Q. So isn't the first thing that needs to be done
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1 is to determine what the statute and -- and code applies
2 to?
3 A. Yes.
4 Q. Isn't that the starting point?
5 A. Yes.
6 Q. And then after you figure out what the starting
7 point is, you have to figure out whether the taxpayer
8 meets the requirements for that starting point?
9 A. Yes.
10 Q. And yet you haven't shown me anywhere where you
11 have identified that the starting point is that you have
12 to be engaging in a telephone business or how you told
13 TracFone that you had determined -- you had made the
14 conclusion that they were engaged in the telephone
15 business; correct?
16 MS. SAND: Objection. Argumentative.
17 You can go ahead and answer.
18 THE WITNESS: Well, I didn't think at the
19 time that TracFone needed to be told that they were a
20 telephone business. I thought that that was obvious to
21 all parties concerned. So when I quoted the RCW saying
22 this is a telephone business, I thought they would say,
23 Well, of course I'm a --
24 BY MR. EDWARDS:
25 Q. And what was your analysis for how you concluded
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1 that they were a telephone business?
2 A. A telephone business is a business that provides
3 access to a network telephone service.
4 Q. And so if somebody does not provide access to a
5 network telephone service, they are not engaged in the
6 telephone business; correct?
7 A. Correct. For instance, the retailers, they
8 provide access to TracFone's access. They don't -- they
9 don't hook them up to a network telephone service
10 themselves.
11 Q. How did you make that determination, that the
12 access they provide is access to access?
13 A. (Laughter). Like I say, we -- we bought a
14 Virgin Mobile card for my daughter, and we bought it at
15 Walmart, and Walmart was not our telephone company.
16 They sold us a card. We used the card to connect with
17 Walmart -- with Virgin Mobile, and Virgin Mobile from
18 thereafter was our telephone company. I... I made a
19 logical assumption that TracFone operated the same way.
20 Q. Doesn't that assumption require an analysis of
21 what it means to provide access?
22 A. Well, providing access is basically why people
23 become telephone customers. They want to call other
24 people on a telephone network. If I want to call my
25 husband, tell him what to pick up for groceries, I have
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1 to go onto a telephone network and somebody has to
2 provide that either directly, say somebody who owns a
3 tower or -- or they have to -- I have to get hooked up
4 with that somebody who contracts with one of those
5 people and provides me the access that they contracted
6 for and paid for.
7 It's not -- it just isn't that complicated.
8 It's -- it's just how -- how it is. I don't see how you
9 can say it's not. I think, you know, I would need quite
10 a lengthy explanation to tell me why this isn't true
11 because it's -- it's so obvious to me.
12 Q. If we were sitting in the same deposition room
13 in-person and you needed to call your husband and I
14 handed you my phone, have I provided you access to a
15 telephone network?
16 A. No. You --
17 Q. Why not?
18 A. Because you gave me a telephone that I could use
19 that was -- you know that telephone would be worthless
20 if it wasn't... enjoying a contractual relationship with
21 somebody who could provide telephone network services.
22 So if it's a TracFone phone, and I'm sure you use
23 absolutely nothing else, then it -- it -- when you hand
24 me the phone, you've handed me a phone. But when I turn
25 it on and make a call, I'm using TracFone's services
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1 that they provide, not yours. You know, you paid for
2 it, but it was -- it's TracFone that --
3 Q. And what -- so here is -- and I guess you can't
4 see my phone, but I've got a phone. If I were to hand
5 it to you, you would be able to make a call, would you
6 not?
7 A. Yes, but only because it's hooked up to the
8 telephone network.
9 Q. And so --
10 A. Yes.
11 Q. -- without that phone in your hand, you would
12 not be able to make a call; correct?
13 A. Well, that or some other phone, yeah, I see what
14 you're saying.
15 Q. So by giving you a working phone, haven't I
16 personally provided you access to a telephone network?
17 A. You've provided me access to a telephone which
18 is hooked up to a telephone network service provider.
19 Q. So only --
20 A. Another step there.
21 Q. Only telephone service providers can be in the
22 telephone business; is that what you're saying?
23 MS. SAND: Objection. That mischaracterizes
24 the witness's testimony.
25 THE WITNESS: You still want me to answer?
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1 BY MR. EDWARDS:
2 Q. Yes.
3 A. Okay. So the... Could you say it one more
4 time?
5 MR. EDWARDS: Please read it back.
6 (Question was read back.)
7 THE WITNESS: All right. So the answer
8 would be no, that you can be a tel- -- somebody who
9 provides access to the network telephone service, so
10 you've got actual carriers and then you've got people
11 who contract with those carriers to provide that access.
12 Both are -- are part of the code. Both situations.
13 BY MR. EDWARDS:
14 Q. So the code makes a distinction between carriers
15 and people who contract directly with carriers?
16 A. Yeah, it does. I'd --
17 Q. Can you show me where in the code it does that?
18 A. Can I look at the code so I can read it to you?
19 Yes?
20 Q. Okay.
21 A. Okay. Let me see, is that code over here?
22 (Reviews document.)
23 Okay. So telephone business is providing
24 business -- providing network telephone service.
25 Network telephone service means that providing of any
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1 person of access to telephone network.
2 Q. Stop right there.
3 A. Uh-huh.
4 Q. Didn't it say "any person"? Is that what it
5 said?
6 A. Yes, but --
7 (Inaudible due to crosstalk.)
8 BY MR. EDWARDS:
9 Q. But does the phrase "any person" distinguish
10 between carriers and others?
11 A. No, there is a place in here that -- okay.
12 Telecommunications company is --
13 Q. That's a different definition; correct?
14 A. Yeah, but how does that -- that comes in to the
15 definitions are -- that are -- oh.
16 (Sotto voce comments.)
17 Q. So we can move on to the next question, which
18 is: In light of how complicated this has been, can you
19 please help me understand how it's so obvious that
20 certain types of companies provide access and other
21 types of companies don't provide access and -- and
22 providing access has one and only one clear meaning?
23 A. I think you -- you can't -- I can't go taxing
24 you for handing me your phone.
25 Q. Why not?
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1 A. Because --
2 Q. Am I a person?
3 (Inaudible due to crosstalk.)
4 THE WITNESS: -- telephone company. You're
5 not --
6 BY MR. EDWARDS:
7 Q. Am I a person?
8 A. Yeah, you are.
9 Q. And when I hand you my phone, have I provided
10 you access to a telephone network?
11 A. Well, I think I would say that you have provided
12 me access to a phone which is connected to a -- a
13 network service provider that --
14 Q. Where do you find that distinction in the code?
15 A. Well, it says that you have to provide access to
16 a network telephone -- you cannot provide me access for
17 something that you have no legal right to whatsoever.
18 You did not --
19 Q. Where do you come to the conclusion that there's
20 a legal right component to analyzing access?
21 A. I think we have kind of gotten out of line.
22 TracFone is a telephone business. You're not a
23 telephone business.
24 Q. Why not?
25 A. Why not?
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1 Q. The answer can't be just because you say so and
2 you think it's obvious. Explain to me why not. And --
3 and use the code and the statutes to do so.
4 A. Okay. I said I'm not a lawyer, but I'm going to
5 tell you my opinion as an auditor. I think you're
6 twisting the meaning of the codes for your benefit. I
7 don't think any legislator meant to tax Scott Edwards
8 for loaning his phone to somebody. They never intended
9 to call you a telephone company because you loaned
10 someone your phone. So I think we've gone, like, beyond
11 the realm of -- of reality here. I know it would be
12 good for your client if you could show that anybody who
13 loans someone a phone was a telephone business, but I
14 don't think it would fly in a -- in a court. I guess
15 that's up to the hearing examiner to decide.
16 Q. I think we've beat that horse about as dead as
17 we can.
18 A. (Laughter). Yeah.
19 Q. I'd like you to open the packet that is Exhibit
20 I.
21 MS. SAND: Which exhibit number is this?
22 MR. EDWARDS: Is it 71? 72.
23 (Exhibit No. 72 marked.)
24 BY MR. EDWARDS:
25 Q. Do you have in front of you a document that says
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1 CITY OF RENTON, WASHINGTON ORDINANCE NUMBER 5944?
2 A. Yes.
3 Q. And the next to the last page of that document
4 is a -- which is page 17, indicates that this ordinance
5 was passed by the Renton City Council on November 18th,
6 2019; is that correct?
7 A. Yes.
8 Q. And this document reflects changes that were
9 made to the Renton telephone utility tax or to the
10 Renton utility tax ordinance in November of 2019.
11 The -- you see that there are places where the text is
12 underlined, and other places where the text has a line
13 stricken through it?
14 A. Uh-huh.
15 Q. Are you aware that Renton revised its tax
16 ordinance in 2019?
17 A. I know there was some revisions. I couldn't
18 tell you exactly when.
19 Q. What's your recollection of what the nature of
20 those revisions was?
21 A. There were different changes. I know one of
22 them had to do with interest. The -- they didn't always
23 cross out the old rules when they thrown in the new, but
24 they just simply superseded them.
25 Q. So if you went on the Renton website today and
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1 looked at the ordinance, you would not see anything that
2 is stricken through in Exhibit 72; correct?
3 A. No, I don't know. I wasn't part of this.
4 Q. When you say that there was a change to the
5 interest rate, it was changed from being a 12 percent
6 per year interest rate to following the State's interest
7 rate methodology; is that correct?
8 A. Yes.
9 Q. And that interest rate is significantly less
10 than 12 percent a year?
11 A. Yes.
12 Q. In fact recently it's only been 2 percent a
13 year?
14 A. I believe so.
15 Q. So if the assessment issued against TracFone had
16 been held for another few months till the new interest
17 rates went into effect, the amount of interest that
18 would have been assessed would have been significantly
19 less?
20 A. I believe that when we sent this out, we were
21 not aware of the change, but I could be wrong on that.
22 Q. I'm not asking what you were aware of. I'm
23 asking whether mathematically, if the changed
24 provision's applied, it would significantly reduce the
25 amount of interest assessed.
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1 A. On this one, I cannot say, because what we did
2 was we called -- when we came aware of the interest
3 change and -- and the fact this -- this schedule was not
4 updated for it, we called Nate Malone, I called him -- I
5 think we emailed him. I'm not sure, but we contacted
6 him and we asked him very specifically how to do the
7 interest, and he said to stick with what we have. I
8 don't know if that's because it was in settlement or
9 what -- what the issue was. But he said no, just leave
10 it.
11 So he knows -- because we're not really experts
12 on how -- how to handle things when -- when the code
13 changes. We always rely on the City and -- and do
14 whatever they ask us to. And so I can't speculate to
15 why he said yes. It might be because if it's an old
16 audit, then the -- the interest doesn't change. Or it
17 might be because it was in settlement. I don't know.
18 Q. Were those communications by email?
19 A. You know what, I can't remember. I just
20 remember we got a very definitive answer.
21 MR. EDWARDS: Kari, that's again something
22 that hasn't been produced. If there are emails between
23 TracFone or TRS and the City about the interest
24 calculation, we want those.
25 MS. SAND: I will try to supplement as quick
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1 as possible.
2 Mrs. Crisp, do you -- do you have those
3 emails that you can forward to Mr. Edwards and
4 Mr. Degginger and copy me?
5 THE WITNESS: If I can find them, yes, I'll
6 see if I can. I'm not positive it wasn't by phone, but
7 I know that we were -- we were following on Mr. Malone's
8 instructions. We do work for them, not for ourselves,
9 so -- so you want copies... You want me to send them to
10 Scott and Grant and CC you; right?
11 MS. SAND: Correct.
12 THE WITNESS: Copies of Nate's
13 determination.
14 BY MR. EDWARDS:
15 Q. Okay. And let me re-ask the question I tried to
16 ask before, and I'll try to structure it a little
17 better. 2 percent is less than 12 percent; correct?
18 A. Yes.
19 Q. If the assessment had been calculated using a 2
20 percent interest rate, it would have resulted in a
21 smaller number than when it was calculated using a 12
22 percent interest rate; correct?
23 A. Yes.
24 Q. If we look at the first page of Exhibit 72, it's
25 got essentially an index of Chapter 11. Do you recall
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1 that when we were looking at exhibits earlier and you
2 had -- had an excerpt of the -- of the utility tax, the
3 provision that you excerpted was section 5-11-1?
4 A. Yes.
5 Q. And you'll see here that, yeah, the 1 has been
6 stricken out and replaced with a number 4 because there
7 are three new sections that have been added to the
8 chapter?
9 A. Oh, okay.
10 Q. So I'm going to take you now to past all of the
11 additions to page 6 of the document. And you can see in
12 just about four lines down where the -- yeah, it used to
13 be 5-11-1 and it's been renumbered to 5-11-4. Do you
14 see that?
15 A. Uh-huh.
16 Q. And then in A, the tel- -- or where it used to
17 say just simply, quote, telephone utility tax, it now
18 says, "The Telephone Business tax rate." Do you see
19 that change?
20 A. Uh-huh.
21 Q. And then there's a new section B adding a
22 separate tax for the cellular telephone business. Do
23 you see that?
24 A. Uh-huh.
25 Q. During the audit of TracFone, and even at the
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1 time that the assessment was issued, there was not a
2 separate utility tax on cellular telephone business;
3 correct?
4 A. Right, it was all one business.
5 MR. EDWARDS: If we can take a five-minute
6 break, I think I'm almost finished.
7 THE WITNESS: Okay. Can you tell me
8 again -- just before the break, can you tell me what
9 year this document was?
10 MS. SAND: 2019.
11 THE WITNESS: 2019, so very recently. All
12 right. Thank you.
13 MR. EDWARDS: Thank you.
14 (A break was taken
15 from 2:27 p.m. to 2:33 p.m.)
16 MR. EDWARDS: I have no further questions.
17 THE WITNESS: (Laughter). Great. Great.
18 MR. EDWARDS: Kari, do you have any
19 questions?
20 MS. SAND: No.
21 MR. EDWARDS: Okay. I think we are
22 concluded then. We can go off the record.
23 THE REPORTER: Are you ordering the
24 transcript?
25 MR. EDWARDS: Yes.
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1 THE REPORTER: Copy?
2 MS. SAND: I'll get back to you.
3 (Deposition concluded at 2:34 p.m.)
4 (Signature reserved.)
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1 C E R T I F I C A T E
2
3 STATE OF WASHINGTON
4 COUNTY OF KING
5
6 I, Kathleen Hamilton, a Certified Shorthand
7 Reporter and Notary Public in and for the State of
8 Washington, do hereby certify that the foregoing
9 transcript of the deposition of TAMARA CRISP, having
10 been duly sworn, on DECEMBER 18, 2020, is true and
11 accurate to the best of my knowledge, skill and ability.
12 IN WITNESS WHEREOF, I have hereunto set my hand
13 and seal this 30TH day of DECEMBER, 2020.
14
15
16 ________________________________________
17 KATHLEEN HAMILTON, RPR, CRR, CCR #1917
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