ROBIN YEAMANS 46333
Law Office of Robin Yeamans
1484 Pollard Rd. #191
Los Gatos CA 95032 
(408) 867-8137 

Attorney for Petitioner 

SUPERIOR COURT OF CALIFORNIA, SANTA CLARA COUNTY

In re the Marriage of:
redact,
		Petitioner,
redact,
		Respondent	)
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)	Case No.: 1-99 FL 085666

DECLARATION OF ATTORNEY YEAMANS IN SUPPORT OF MOTION TO DISQUALIFY CONSULTANT, DR. GOULD

APJ: Dept. 76, Hearing: Dept. 22
Hearing: 9/11/08 at 1:30 PM	
	I, the undersigned, state:
	I am an attorney for petitioner herein.
	This declaration is submitted in support of the contention that now-disqualified attorney Bradford Baugh, his disqualified paralegal Chris Gill, disqualified/excluded attorney Timothy Tippins and consultant, Dr. Jonathan Gould, exchanged confidences (actually or presumably) such that Dr. Gould was tainted by the removed personnel and must also be removed.
	I conducted and defended several depositions in this case, including of expert witnesses.  As to the depositions of parties' experts, the following were attended by representatives for respondent as follows:
Date			Deponent		Attendees			Location
Apr. 7		     	Dr. Austin		Mr. Baugh (first 1/2 hour 	My office
						only), Dr. Gould, Mr. Tippins

Apr. 15		Dr. Sullivan		Mr. Baugh			My office
Apr. 17		Dr. Martindale		Mr. Tippins			My office
Apr. 19              	Dr. Geffner*		Mr. Baugh, Mr. Tippins,	Mr. Baugh's office 								Dr. Gould			(Saturday)

Apr. 22              	Dr. McBurnett		Mr. Baugh, Dr. Gould	Mr. Baugh's office	

	On April 23, 2008 the trial court, Hon. Aaron Persky, issued an order disqualifying both paralegal Chris Gill and attorney Bradford Baugh from working on this case.
	I served respondent's former counsel, Mr. Baugh, with a notice for all of his three disclosed forensic experts---Dr. William Austin, Dr. Matthew Sullivan, and Dr. David Martindale---to produce at their depositions.  The three notices requested the same items.  The gist of this notice was that each expert should produce his entire file, including emails and FAXes.
	The first record I have received which reflects Dr. Gould's presence in the case is a Jan. 2, 2008 memorandum, produced by Dr. David Martindale (one of respondent's forensic experts) at his deposition, confirming that Dr. "Jon"athan Gould called him, asking him to enter the case.  An email from attorney Baugh, received at the deposition of Dr. Austin, contained Mr. Baugh's request to talk to Dr. Austin along with the statement, "Your name was given to me by Dr. Jonathan Gould."  Those two experts reside outside of California.  The third forensic expert was Dr. Matthew Sullivan, who is a local psychologist and whose first recorded time on this case was a review of records on Nov. 8, 2007.  Thus, to the extent that respondent has hired experts living outside of Silicon Valley, Dr. Gould was the one who located them and who, based on Dr. Gould's conversations with attorney Baugh, determined they would be the appropriate experts to recommend for this case.
	On April 7, 2008, at my office in Los Gatos, Dr. Gould, Mr. Baugh and Mr. Tippins were present on behalf of respondent.  I conducted the deposition of Dr. William Austin, an expert for respondent.  Prior to the deposition, attorney Bradford Baugh in the waiting room of my office introduced attorney Timothy Tippins to me, and at the same time he introduced Dr. Jonathan Gould to me as the "consultant" for them.  Dr. Gould was on his computer the entire time during the deposition, and as my office wasn't equipped for it, he used my antique dictionary stand.  As I was taking the deposition, attorney Tippins did not ask any questions.  Dr. Gould took notes and sat at a considerable distance from attorney Tippins with the witness seated in between them.  Mr. Baugh left after about one half hour.
	On April 19, 2008, Dr,. Gould and Mr. Tippins were present on behalf of respondent.  I was present when attorney Tippins took the deposition of our expert, Dr. Robert Geffner, at the office of attorney Baugh in what appeared to be a library/conference room.  Also attending that deposition were Dr. David Martindale, who sat at the end of the table to my left and Dr. Jonathan Gould who sat across from me adjacent to attorney Tippins.  I was surprised to see Dr. Martindale at the deposition as he is a disclosed expert witness, not a consultant in this case.  Dr. Gould was again typing on his computer, but this time he would occasionally show his remarks to attorney Tippins.  He was showing his computer screen to attorney Tippins, apparently with comments or proposing questions to the attorney.  From across the table, it was quite clear.
	On April 22, 2008, Dr. Gould was present with both attorneys Baugh and Tippins.  I was present when attorney Bradford Baugh took the deposition of our expert, Dr. McBurnett, at the office of attorney Baugh in the same room as before.  This time Dr. Martindale was not present.  Dr. Jonathan Gould sat next to attorney Tippins, in the same places they had occupied for Dr. Geffner's deposition.  This time Dr. Gould was again typing on his computer.  What made it quite obvious that he was proposing questions to attorney Baugh was one time towards the end of the deposition when Dr. Gould clearly moved his computer screen towards attorney Baugh, and Mr. Baugh very emphatically shook his head "no."
	It appears Drs. Gould, Austin and Martindale are in a joint business venture, which is not apparent from reading Dr. Martindale's curriculum vitae.  Of course, Dr. Gould's curriculum vitae was not provided as he is a consultant.  Although Dr. Austin's curriculum vitae, produced at his deposition, reflected the website (evidently a consulting consortium) in which all three are involved,
	A website on the internet indicates that both Drs. Gould and Martindale are in a joint enterprise called Child Custody Consultants--A Consulting Consortium and Dr. Gould's curriculum vitae is obtained from that website.  One can also link from the CCC website to Dr. Austin's website.  When we did the depositions, attorney Hammon and I were unaware of this fact and therefore did not inquire into it.  It is highly unusual and, I believe, improper, to have a business entity where one business entity simultaneously provides a confidential consultant to the attorneys and expert witnesses who should be objective professionals in one case.  I have been certified as a family law specialist by the California State Board of Legal Specialization since 1980, which is the first time the state ever certified such specialists.  
	On April 15, 2008, I took the deposition of Dr.  Matthew Sullivan.  A partial copy of that deposition is attached. He testified that on Feb. 27 [2008] and April 4 [2008], he was present for meetings at the office of attorney Baugh in which the other experts---Drs. Martindale and Austin---participated along with the consultant Dr. Gould.  As of the Feb. 27, 2008 meeting, petitioner's counsel had not yet raised the issue of conflict of interest on behalf of attorneys Baugh and/or Tippins because we didn't become aware of the employment of paralegal Chris Gill by Mr. Baugh until the end of March 2008.  Dr. Sullivan testified that Mr. Tippins was not present at the first meeting.  I didn't ask whether he was on a speaker phone or communicating by means of any electronic or phone method.  
	Dr. Sullivan testified as follows regarding the purpose of the first 3-hour meeting which occurred on Feb. 27, 2008 at 9 AM to noon:
   	14    Q    And what was the purpose of the three-hour 
            15    meeting?
            16    A    The meeting was to -- to get some sense of 
            17    the areas of testimony that we would be providing 
            18    and to share some of the literature that -- that 
            19    was relevant to that.  Those areas of testimony.

He also testified that he took no notes. (Id. at 26)  
	Dr. Sullivan in an email to attorney Baugh on April 2, 2008, referred to the April 4, 2008 meeting as a "team" meeting.
At his deposition Dr. Martindale gave me a thumb drive (aka flash drive) with his redact file on it.  It did not contain notes taken at either team meeting.  At Dr. Martindale's deposition I printed out the contents of his "thumb" drive (except for the maps to Mr. Baugh's office and to his motel), and Dr. Martindale confirmed that Ex. 16 to his deposition correctly reflected the contents of the thumb drive.  Exhibit 16 does NOT contain notes from the April 4 team meeting.  As to his note taking practice Dr. Martindale testified:
           21            When I do notes and evaluation, I try to
           22   write fairly verbatim notes to what is said to me,
           23   whether it's in an interview or during a home visit.
           
Dr. Austin also testified that he brought his notes with him, and he recognized he'd been noticed to bring any writings received from any person concerning this case:
3 Q. DID YOU BRING THOSE NOTES WITH YOU TODAY?
4 A. I BROUGHT THE NOTES THAT I TOOK ON THE FILE
5 WITH ME TODAY.
6 Q. NOW, ON EXHIBIT 1, YOU WERE REQUESTED TO BRING
7 WITH YOU ALL WRITINGS RECEIVED BY YOU FROM ANY PERSON AT
8 ANY TIME CONCERNING THE ABOVE-ENTITLED CASE.
9 A. OKAY.

I confirmed that Dr. Austin had brought his entire file, including emails, to the deposition:
17 Q. NOW, LOOKING AT EXHIBIT 1, NUMBER ONE WAS ALL
18 WRITINGS RECEIVED BY YOU, AND TWO WAS YOUR ORIGINAL
19 FILES. AGAIN, EVERYTHING IS EXCEPT DR. GORDON'S 2,000
20 PAGES. HAVE YOU BROUGHT EVERYTHING IN RESPONSE TO
21 NUMBERS ONE AND TWO?
22 A. I BELIEVE SO. I THINK NUMBER TWO IS WHAT I
23 JUST HANDED YOU IN THAT NOTEBOOK. "HIS" IS ME?
24 Q. YES, INDEED.
25 THREE IS ALL WRITINGS, WHICH IS AS DEFINED IN 
1 THE EVIDENCE CODE, INCLUDING E-MAILS, EXCHANGED BY THE
2 PSYCHOLOGIST, WHICH IS YOU, AND ANY PERSON/ENTITY AT ANY
3 TIME CONCERNING THE ABOVE-ENTITLED CASE. "ANY PERSON"
4 WOULD INCLUDE THE PARTIES THROUGH redact. ANY PERSON
5 REGARDING THIS CASE.
6 A. THAT WOULD BE CONTAINED IN THE ATTORNEY
7 WRITINGS. 

In spite of the above testimony, Exhibit 16 from Dr. Martindale's deposition contains no notes from the team meetings.   To prepare for this declaration, I reviewed the exhibits attached to the depositions of Dr.  Austin, Martindale and Sullivan.  None of those three sets of exhibits (which purport to contain the experts' entire files--see declaration of attorney Yeamans in support of motion regarding 3 experts) contains notes from the two forensic team meetings referred to above.
	It appears that two forensic "team" meetings were held including Dr. Gould at the office of Mr. Baugh, and yet all the forensic experts claim that (contrary to forensic record-keeping standards) they have no notes from that meeting.  As they indicate that Dr. Gould was present at the meeting, his notes are discoverable.  If a claim is made that not only did all the forensic experts (who normally take thorough notes) coincidentally refrained from taking notes but also Dr. Gould also refrained, it will be 100% clear that they made a pact not to take notes.  When Dr. Gould came to my office, not only did he always have his computer going, and he was taking notes, but he brought along even an extra mouse and one other extra piece of equipment, being ready to ensure that there was no way his computer would stop working.  He is not a person who would not take notes.  Additionally, after the second team meeting, emails show it was Dr. Gould who sent out the literature.  As the purpose of the meeting was to reach agreement on a common literature base, the idea that he didn't even list literature is not believable.  If he did list literature, why did not he, who is constantly writing on his computer, refrain from taking notes?  
	However, the court is requested to consider all the information regarding Dr.  Gould in pleadings regarding the motion to disqualify the three forensic experts and vice versa.   
	Additionally, according to Dr. Sullivan the purpose of the meetings was to "get some sense of 
the areas of testimony that we would be providing and to share some of the literature that -- that was relevant to that." (Page 25, Sullivan deposition)  It appears that the team meetings ended at noon on April 4, 2008, and copies of the agreed-on literature were distributed by Dr. Gould, beginning on April 4, 2008 at 12:06 PM.  After that emails show Dr. Gould sent out additional literature to the team.  How did he know what literature to send out if he didn't take notes at the meeting with the forensic experts?  Does he claim he wrote down only literature and nothing else?  Why would that be?
	If Dr. Gould claims his notes are confidential attorney work product, that confirms he is attorney Baugh's alter ego and should be disqualified.  The seriousness of the pact to not take notes is shown by the fact that Dr. David Martindale not only has a strong public position advocating "transparency" in the forensic context but he felt so strongly about this that he resigned from the American Psychological Association in protest when they loosened their ethical standards on record-keeping and other things:
             8    Q    Are you a member of the American 
             9    Psychological Association?
            10    A    No, I am not.
            11    Q    Were you ever a member of the APA?
            12    A    Yes, I was.
            13    Q    When were you last a member?
            14    A    I resigned from the APA I believe in 2002 or 
            15    possibly 2003 after the release of the New Ethics 
            16    Code.
            17    Q    And what was the cause of your resignation?  
            18    A    I resigned, as did several other members, in 
            19    protest of the New Ethics Code.
            20    Q    Was there any particular presence or absence 
            21    of items in those New Ethics guidelines that 
            22    caused your resignation?      
            23    A    Yes.
            24    Q    What was that?
            25    A    I was very concerned about the watering down 
            (End of page 13)
             1    of the Ethics Code that occurred between 1992 and 
             2    2002, particularly the sections of the Ethics Code 
             3    that pertained to forensic work.  
             4    Q    Can you give me a couple of examples of 
             5    specifics, if you have them in mind?
             6    A    Well, the most dramatic was that in the '92 
             7    code, section 1.23 addressed retention of records.  
             8    And that got completely dropped from the 2002 
             9    code.  
            10              There is nothing in the 2002 code that 
            11    emphasizes our responsibility to retain our 
            12    records. (Pages 13-14, Deposition of Dr. Martindale

Given Dr. Martindale's deep commitment to record-keeping and transparency--shown by writing articles and resigning in protest from his professional association---his failure to take notes at two long forensic team meetings does not make sense.  His commitment to transparency and record keeping will be documented in the accompanying motion pertaining to the experts.  I examined Dr. Martindale's file, and it has no notes from either team meeting.  Certainly as to him, given his professional publications and positions, the lack of notes can be explained only by an agreement to keep the contents of the meeting secret.	
	Not only that but attorney Baugh took steps to conceal the "team" nature of the meetings from me until after I had completed all the depositions of his three forensic experts, which were taken as follows:
Apr. 7		     	Dr. Austin		Mr. Baugh (first 1/2 hour 		My office
						only), Dr. Gould, Mr. Tippins

Apr. 15		Dr. Sullivan		Mr. Baugh				My office
Apr. 17		Dr. Martindale		Mr. Tippins				My office
At Dr. Sullivan's deposition I learned Dr. Sulllivan had not produced copies of emails which the Notice of Taking Deposition (served on all experts, Ex. B) obligated him to produce.	(Pages 28-30, Sullivan deposition).  Attorney Baugh sent those emails to me by sending them with stamps (not a postage meter) in the mail through the US Post Office, accompanying a letter dated April 17, 2008.  I'd previously complained to Mr. Baugh that this caused great delay in receiving his mail as all his envelopes to me showed they were routed through San Francisco, and using stamps instead of a postage meter causes further delay.  By using this method instead of FAX, attorney Baugh ensured that I would not receive Dr. Sullivans emails until after the deposition of Dr. Martindale, the last expert to be deposed.  The email from Dr. Sullivan (which shows it was printed by someone on April 15, 2008 although not mailed to me until two days later) turned out to be significant in that Dr. Sullivan referred to the (undocumented) meetings as "team" meetings.  This dovetails with the email from attorney Tippins' email which discusses using a forensic "team."  Attorney Tippins' email indicates he can talk to his "consultant" in confidence with no fear that what he says will see the light of day.  Unfortunately, it appears that attorney Baugh had at least two such discussions with consultant Gould, and they were in the context of forensic "team" meetings with undocumented group communications.  It seems not unreasonable to surmise that in addition to the agreement to not take notes, the purpose of verbal team meetings was to ensure there was no record, such as would exist if they had communicated by electronic means.  Sitting together in team meetings, talking and not taking notes was the most secret thing that could hope to be done in a forensic context---only what passed between attorney Baugh, Dr. Gould and the forensic experts cannot under the law of discovery be secret.  This is because whatever is said to the forensic experts is discoverable although it was successfully evaded at the depositions taken right before what was to be the first trial date.
	Drs. Gould and Martindale appear to have had a lengthy meeting between themselves and then, on the same day, another long meeting with attorney Baugh, for a total of 6.75 hours.  Dr. Martindale produced no notes from those meetings.  
	At his deposition Dr. Martindale produced (in electronic format) a copy of his "redact Time Log / Account."  There are a couple of items that relate to issues involved in this motion.
	First, the shows, among other things:
	2/29/08 F
redact	Conferred with John re: redact case elements [9 -10:30; travel to Brad’s office; Noon meeting with Brad Baugh at his office; We arrived at 11; Meeting with Brad: 11:15 – 1:15; Case planning with Jon: 1:15 – 4:30. [6.75 hours @ $300/hour = $2,075]

This shows that on February 29 2008 (two days after the "team" meeting to which Dr. Sullivan testified), Dr. Martindale conferred with Dr. Gould from 9 to 10:30 AM.  Then "we" arrived at Mr. Baugh's office at 11 AM.  So evidently he and Dr. Gould conferred elsewhere (their hotel?) and then drove together to attorney Baugh's office.  Then they conferred with attorney Baugh from 11:15 AM to 1:15 PM.  After that Dr. Martindale did more "Case planning with Jon"athan Gould.  The total bill for the day was 6.75.  This doesn't appear to have been a "team" meeting, but more individual contact with attorney Baugh.  Dr. Martindale's file does not contain notes from this meeting.  It is difficult to think of a legitimate reason why someone committed to accurate and complete record keeping amounting to "transparency" wouldn't take notes at such a meeting---particularly if it involved "Case planning."  
	Second, a troubling aspect of the redact Time Log/ Account of Dr. Martindale is that while his deposition was taken on April 17, 2008, these produced billing records were dated March 16, 2008.  It contained an estimate for "anticipated fees for the period of 4/3 - 4/6" of $12,000.  April 4 was the second team meeting.  By producing an outdated bill from March 16 when his deposition was taken April 17, Dr. Martindale concealed the existence of the second team meeting and his lack of notes from such a meeting.  Dr. Martindale brought his records on a "flash drive" and had them all in electronic format.  There is no legitimate reason of which I am aware why he would produce a month-old bill.  The Time Log / Account appears to be something he himself produces, not a computerized bill from a billing company, particularly as it included "anticipated fees."  
	At the time I was taking these depositions, I was unable to review and minutely analyze the information produced at the depositions.  Trial was to begin May 8, and attorney Baugh had postponed the experts' depositions (over my objection and in the face of our even having a discovery master) until all of his experts were deposed in the time period from April 7 to April 17, 2008.  Given that the "neutral" evaluator's records alone amounted to 2,000 pages of material, aside from her deposition, it can be seen that there was a huge amount of material to digest.  That is partially why I didn't realize the Drs. Gould, Austin and Martindale were some type of joint venturers in the Child Custody Consortium.
	Finally, a review of the curriculum vitae of Drs. Martindale and Austin shows that they and Dr. Gould have not only co-authored articles, but they have various articles that are in publication---which would require even more contact than appears here.
	I am one of the three attorneys in the State of California certified by the California State Bar Board of Legal Specialization as a specialist in both family and appellate law.  I have been a certified family law specialist since 1980, which is the first time that such specialists were ever certified.  The content of an attorney’s, paralegal’s, consultant’s, or expert’s knowledge in a family law case is very different from, say such personnel trying a car accident case or an insurance bad faith case.  In a custody case, such as the present, where at least one party has an income of millions per year and litigation is very lengthy, the in-depth knowledge of the party that the attorney must acquire is very different from that in regular litigation.  This is very personal litigation, involving the parties’ personal lives and most private aspects of their personalities and interaction.  The strengths and weaknesses of both parties are deeply relevant in a way they would not be in routine civil litigation.  Thus, it is not only specific verbal communications from petitioner redact and her counsel Mr. Hammon, in the possession of paralegal Gill which could have been shared with attorney Baugh.  It is also the knowledge of the party’s strengths and weaknesses and ability to function in the litigation context.  How to question expert witnesses to maximize the strengths of one’s own client and minimize their weaknesses derives from a full understanding of the client and opponent.  The issue of how a witness, including especially a party such as redact is at least as important as the specific factual knowledge that one, such as now-disqualified paralegal Chris Gill, would gain at a meeting with petitioner.  The evidence regarding disqualification was that she met not only with petitioner but with her attorney Walter Hammon, who filed a declaration, indicating that he conveyed confidences to paralegal Chris Gill, who then worked for attorney Schlepphorst.  When attorneys talk to one another about a case, it is not unusual for them to discuss their client's strengths and weaknesses.  While the specific facts communicated may or may not be outmoded (given that many witness then are witnesses now), a person's strengths and weaknesses remain.  This is undoubtedly some of the most important information that Chris Gill was privy to.   The court found Chris Gill shared confidences with attorney Baugh, due to his failure to rebut a rebuttable presumption.  Although attorney Baugh and his paralegal have departed from the case, as long as Dr. Jonathan Gould continues in the case, there is no assurance that in private attorney Baugh did not share petitioner's confidences, consciously or unconsciously, as explained in the Memorandum of Points and Authorities.  
	Executed at Campbell, California, on August 5, 2008.  	
	I declare under penalty of perjury under the Laws of the State of California that the foregoing is true and correct. 
					_______________________________________
					ROBIN YEAMANS, Attorney for Petitioner