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Aug. 20, 2024 - Depositions & Trials
01:27:48
Deposition of Newsmax Media Inc.'s Corporate Representative Andrew Brown
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Time Text
Mr. Brown, if you'll raise your right hand, I'll swear.
Do you solemnly swear or affirm that the testimony you're about to give in this matter will be the truth, the whole truth, and nothing about the truth?
I do.
Thank you.
All right, sir.
Can you give us your name and your job title?
Yes, it's Andrew Allen Brown.
I'm the Chief Operating Officer of Newsmax Media.
All right, sir.
When were you first told that you would be given this deposition?
About three weeks ago.
About three weeks ago?
Did you meet with your attorney about this deposition?
Yes, I did.
How long did y'all meet?
Over several meetings, we probably met a total of Five to six hours.
Okay.
Did you talk to anyone other than your attorney about the subject matter of your testimony?
Yes.
As part of my research for the questions at hand, I talked to several producers as well as managers who were involved in this subject.
Okay.
Did you review documents in preparation for the deposition?
I did.
Yes.
I looked at emails.
On the topic, I also looked at show rundowns as well as these two articles that showed the same photo and story that were prior to us publishing.
And do you feel like today you are prepared to talk about the four topics you've been asked to testify about?
Yes.
Okay.
You understand that on May 6, 2023, A neo-Nazi mass shooter killed people at the Allen outlet malls?
Yes.
Okay.
You understand that on May 8th, 2023, Newsmax covered that shooting?
Yes.
And you understand that on May 8th, 2023, Newsmax repeatedly used the image of the plaintiff Mauricio Garcia to depict the shooter?
Yes.
The company now understands that plaintiff Mauricio Garcia had nothing to do with the Allen shooting, correct?
Yeah.
Okay.
I want to talk to you mostly today about your policies and requirements for the verification of images that Newsmax publishes, as well as the acquisition and the decision to publish this particular image.
You understand that?
Yeah.
Okay.
I first want to start with Newsmax policies, and it is my understanding that the company does not have written editorial standards regarding the verification of images it publishes.
Is that correct?
That is correct, yes.
Okay.
In general, does the company have editorial standards?
Yes, we do.
Does the company believe that its editorial requirements meet or exceed the prevailing standards in the commercial journalism industry?
Yes.
Yes, we do.
Is it the usual practice of your company to take steps to verify the accuracy of images it publishes?
Yes, it is our usual practice.
What steps does the company expect its employees to take before broadcasting a photo portraying someone as a mass murder?
Any photo that we publish in connection with any story should be verified that the photo is accurate before it runs.
We have a central news desk that we use for verifying photos.
That process, did that happen here in this case?
No, it didn't.
Okay.
I want to ask the following statement, and if you can tell me if this is consistent with your company's editorial requirements.
The statement is, your company should not broadcast the image of a suspected mass murder unless the image was confirmed by someone involved in the official investigation.
Or by reference to some kind of primary source?
Would you agree that that's consistent with your editorial requirements?
Objection form.
Yes, that is the proper format for using any photo, not just a mass marker.
And again, did that happen here?
No, it didn't.
Before using any third-party material, The company should take special care with news that might cause grief or damage people's reputations.
Objection 20. The company should always take care of any news regardless of what that news is.
Okay.
Would the company agree that its journalists would not fulfill their responsibilities in verifying the photo of a suspected mass murderer by assuming other news media have verified the image?
Objection 20. Can you rephrase that question?
Sure.
The question I'm asking is if the company agrees that a journalist for the company would not fulfill their responsibilities in verifying the photo of a suspected mass murderer by assuming other news media have verified the image.
I would say our journalists should always verify the sources that we use on air or on our website.
Okay.
Those sources can be multiple places.
The best is someone involved in the investigation, which didn't happen here.
Would the company agree that when publishing the image of a purported mass murderer, the company must use some combination of investigative principles to arrive at a reasonable assurance that the image is accurate?
Is that consistent with the company's policies?
Again, it's not limited to just mass murderers.
Anything that we publish, we should verify that it's accurate.
From the source that is involved with the investigation or involved with the story director.
And you would agree with me that in this particular situation, the company published an image without a reasonable assurance that the image was accurate?
Injection form.
We published an image that we had not verified with the investigators in charge of the shooting.
And would you agree with me that in doing that, the company did not have any sort of reasonable assurance that the image was accurate?
Objection form.
At the time we published the image, we thought it was accurate.
I understand that somebody thought it was accurate.
But when they arrived at that conclusion, they did not have a reasonable assurance that it was accurate.
Correct?
They wouldn't have published it if they didn't have a reasonable assurance that they thought it was accurate.
Okay.
I want to talk about the circumstances surrounding the company's acquisition of the photo and its decision to publish the photo.
Primarily, I want to talk about how it ended up on Greg Kelly's show at 9 p.m.
on May 8th.
So, I want to go back to that date, May 8th, 2023. And first, I want to show you an email that was sent that morning.
Can we bring up tab one?
All right, and we're going to be marking that as exhibit one.
Now, I'm showing you exhibit one as an email.
Sent from the news desk address to producers and reporters.
Do you see that?
I do.
It's a little small, but I'm familiar with the email.
Mark, please zoom in a little bit.
Yeah.
All right.
And actually, if you can scroll up just a little bit to the header of the document.
We see here that this email was sent at 1130 a.m.
on the 8th.
Right.
This would have been Chris Wallace writing this email.
Yes.
I would assume it's Chris Wallace since it came from the Newsmax desk.
Chris has several people who work for him.
Now, Chris Wallace is the Newsmax news director?
That's correct, yes.
Okay.
The subject is guidance on Brownsville and Allen, Texas?
Yes.
Okay.
And you are familiar that in the previous days to this email that there were homicides both in Brownsville and Allen, Texas?
All right.
In the first paragraph, Wallace says, do you see in the second sentence, we as a network need to be very careful about parroting any reports about subjects in these incidents.
Do you see that?
I do.
Does the company agree with that statement?
Yeah.
Okay.
He then says that these reports are more often than not I think that's what he means by that, yes.
You see the third paragraph is about the Allen shooting at Mauricio Garcia.
Do you see that?
Yeah.
Okay.
Mr. Wallace mentions tattoos and patches on social media.
This refers to the tattoos and the right wing death squad patch that was found on a social media profile alleged to belong to the shooter.
Is that a question?
Yes, I was saying, were you familiar with that, that these references to tattoos?
Yes, I'm familiar with the references, yes.
Okay.
In the fourth paragraph, Wallace says, we reduce ourselves to MSM status by repeating unverified and likely patently false statements and creating a distorted picture of what happened.
Do you see that?
Yes.
Okay.
MSM, that's an abbreviation that y'all would use for mainstream media?
Yes.
Okay.
In the last paragraph, Wallace says, treat everything we've been hearing about both of these cases with caution, please.
Does the company agree with that statement?
Yes.
Okay.
Let's bring up tab two.
AJ, you got tab two for me?
There we go.
We're going to mark this as Exhibit 2. As you see, Exhibit 2 is a Newsmax article.
Do you see that it says that it was published at 11.56 a.m.
on May 8th?
You can scroll down below the picture so we can see that.
Yeah.
Okay.
The headline that says the shooter had a city of Dallas tattoo.
Do you see that?
Yes.
Were you familiar that the shooter had a Dallas logo tattoo on his hand?
Yes.
I saw the emails from our news desk about that.
Okay.
And so we know that at this point, at 11.56 a.m., Newsmax knew there was a city of Dallas tattoo that the gunman had.
Objection form.
Yes.
Okay.
Can you go to page two for me?
And scroll down to the highlighted portion.
You see there's a highlighted portion there that says that Garcia reportedly had no criminal history, right?
I see the highlighted, yes.
Okay.
And Newsmax also knew...
That the shooter wasn't booked for the shooting itself, right?
Objection form.
Well, he wasn't arrested.
Right.
He wasn't arrested.
He was dead.
Right.
Okay.
So the company knew as of 1156 that Garcia had no criminal history and that he wasn't arrested for the shooting.
Right?
Injection form.
At the time of the article, we knew that the shooter was dead, yes.
Okay.
And so Newsmax should have known that a booking photograph could not depict the shooter, right?
Injection form.
If you put it all together, then yes.
But oftentimes...
The people on TV are not directly getting stories from the people who run our website.
I'm sorry.
Please continue.
No, that's all I have to say.
Okay.
It's sort of the job of a journalist and a commercial journalism enterprise to put it all together, as you said, right?
Yes.
Okay.
Let's bring up tab three.
All right, I want to show you this email from May 3rd.
I mean, excuse me.
I want to show you this email from May 8th.
We're going to be marking this as Exhibit 3.
At the bottom, you see an email from Joseph, and can you help me with his last name?
I actually don't know how to pronounce his last name.
I honestly do not know how to pronounce Joseph.
I think it might be Marisculio.
I hope I'm not butchering that.
I'm going to try to use that term.
At the bottom of the email is an email from Joseph Marisculio.
He works for the Newsmax Newsdesk?
Correct.
Okay.
At 3.33 p.m., he sent Wallace, Chris Wallace, the news director, a link to a Twitter thread and said, reportedly, this is a social media profile discovered of the guy.
Is that right?
Correct.
Okay.
And you know that that Twitter thread is by Art Toler, a researcher from Bellencat?
I'm not sure who the originator of the Twitter is.
Okay.
Are you familiar that, without knowing who the person was, that somebody discovered a social media profile that they alleged belonged to the shooter?
Yes, I'm aware of that.
Okay.
Would you agree that multiple people in Newsmax reviewed this Twitter thread about the social media profile?
Yes, but I also know that they don't use information strictly from social media.
It wasn't until the photo was being used by a number of other major websites that the photo was used by our staff.
Okay.
I wanted to remember that to come back and talk about these major websites, so we'll talk about that in a bit.
Does the company agree that the social media profile that was disclosed contained, at the very least, compelling evidence suggesting that it belonged to the shooter?
I'm sorry, I don't understand your question.
Sure, let me try to explain it this way.
You understand that the social media profile...
Included numerous photographs and social media posts.
I'm sure it is, yes.
Okay.
Actually, we might be able to handle this on the next exhibit.
Let me move on for that.
In this email, hold on, let's go back up to that exhibit, AJ. And in the top email, Chris Wallace He instructs that this Twitter thread should not be disseminated, correct?
Correct.
And I would assume that's because nobody has been able to verify it yet.
Yes.
Okay.
If you'll notice, Joseph's email was sent at 3.33 p.m., and it's showing that Wallace's email was sent at 7.35 p.m., but I think you would agree with me that that's That's actually four hours earlier.
That was 3.35 p.m.
Would you agree with that?
I would have to go based on the date that's in.
I would assume it's 7.30 p.m., but I have no way of verifying that.
Okay.
I was just asking because I've been through a lot of these emails, and it does seem that for some reason...
Certain times, certain emails have different time zones assigned to them, and I'm finding emails that are four hours ahead in the midst of conversations that are happening earlier in the day.
I didn't know if you were familiar with that or not.
No, I'm not familiar with the time differences on the emails, no.
Okay.
It typically wouldn't be Wallace's standard practice to wait four hours on something like this, right, before letting them know whether they should disseminate this?
No, it wouldn't be.
Okay.
Let's bring up tab four.
All right, we're going to mark this as exhibit four.
And this is the Threadreader webpage linked to in that previous email at threadreader.com.
Okay, and so I want to take a look at this.
Is this something you've ever reviewed?
No, it's not.
Okay.
We see on the thread here where this person, Arik Toler, has disclosed a link to the social media profile on ok.ru.
Do you see that?
I do, yes.
Okay.
And can you go to page three for me?
All right, and here we see the right-wing Def Squad vest that authorities said the shooter was wearing.
I see it, yeah.
Okay, and then can we go to page five?
And these are the tattoos that were on social media that we were talking about earlier?
The action form.
I see them, yes.
Okay, and this is very clearly Nazi tattoos, right?
Yes.
Okay.
Newsmax employees would be familiar with what a Schwarzenegger looks like and they would be familiar with what SS lightning bolts look like.
Objection point.
Yes.
Okay.
Can we go to page nine?
All right.
Here we see that the profile posted about the Allen outlets a few weeks before the shooting.
Did you know that?
I did not know.
Do you know if anybody at the company knew that?
I don't know if anybody at the company knew that at the time the story was published.
Can we go to page 10?
And here we have a picture posted by that account of the Allen Outlet Malls a few weeks before.
Do you know if anybody in the company had looked at this?
I don't know if anybody had looked at this at the time that the story was published.
Okay, and then go to page 11 for me.
Here we see a receipt that the account posted for weapons under the name Mauricio Garcia.
Do you know if anybody at the company saw this?
I don't know if anybody at the company saw this at the time of the story published.
Okay.
All right, we can take that one down.
Now, instead of photos from that profile, Newsmax began using a photo of the plaintiff who had nothing to do with the shooting, correct?
That's correct.
Okay.
Let's bring up tab five.
All right.
Tab five, which will mark as exhibit five.
This is an email among staff for Greg Kelly's show regarding a graphic they're working on, correct?
That's correct, yeah.
Okay.
This email sent around 4.48 p.m.
Or, well, I have it as 8.48, but I think we could agree that it would be unlikely for the team to be working on graphics minutes before the show goes live.
No, it would be very likely that that would be the case, yes.
Okay, so this email could have occurred as late as 8.48 p.m.
It could have, yes.
Okay.
And at this time, the company knew the actual shooter was 33 years old?
Yes.
Okay.
I want to show you the attachment to that email, the graphic they were working on.
Can we bring up tab six?
We're going to mark this as exhibit six.
You've seen this photo, right?
Yes, I have.
Okay.
One of Greg Kelly's producers found this picture on a local news website in Wichita, Kansas?
Yes.
Megan told me in my investigation that the photo was in our NAS system that normally only has photos that have been approved by the news test.
And she went out to verify the photo and saw it on an ABC affiliate in Wichita.
Okay.
And she actually found this specific image, correct?
That's correct, yes.
Okay.
And a different producer also found the image on something called Today News Africa, correct?
Yeah, Chris Tomas.
He is the journalist who first brought the photo into our system.
When the story broke, he went to search about the shooter, and he said that he saw the photo and story on Yahoo, on the Yahoo News aggregate, and he also saw the link to the Africa website on MSN. And so both of those major news aggregates had this photo and the story.
And links to local news websites.
Did the company know when this photo was taken?
No.
Did the company know where this photo was taken?
No.
Does the company or did the company on May 8th know why this photo was taken?
I don't know.
The photo has a watermark credit for a website called mugshots.zone.
Is that right?
Correct.
Okay.
Let's bring up tab 7. All right, we're going to mark this as exhibit 7. Newsmax used the plaintiff's image to create this graphic, correct?
Correct.
This is a graphic that aired on Greg Kelly's show that night.
Correct.
Okay.
Let's bring up tab 8. Okay.
We can zoom in a little bit on that top email.
That's the only one we're going to be looking at right now.
I am showing you what is, we're going to mark as exhibit 8. And you'll see that this is an email from producer Sophie Robinson at 1158, right?
Correct.
Now, if it's 1158 on May 8th, that definitely would be too late for it to be an email relating to the show, correct?
That's correct, yeah.
And if we look down from the email from Brian, his was sent at 755, right?
Correct, yeah.
Probably a reasonable inference that Ms. Robinson's email was sent at 758. I would assume, but I have no way of verifying that.
Certainly it was sent before 9 p.m.
Again, I have no way of verifying that.
You know, given the show times, then that would make sense, but I have no way of verifying the times on the timestamp.
Right.
I just mean from the fact that she is writing about edits and changes being made to the May 8th show would suggest to us it's a reasonable inference if this email would have occurred before the May 8th show.
Yes.
Again, it's a reasonable inference, but I have no way of verifying the time.
Okay.
She asks...
Is there any way you can move the words of the title down even more ever so slightly so that we can see a little more of his neck as low as you can without showing that credit?
You see that?
I do, yes.
And Ms. Robinson doesn't want the URL for the Mugshots website to be visible in the graphic, correct?
Injection form.
Based on the email that she sent, yes, I would assume that's correct.
But Ms. Robinson, she was obviously aware of that credit and where the image originated, correct?
Yes.
You'd agree with me from the internet browser history that's been produced in this case.
Nobody at Newsmax visited the mugshots.zone website.
Is that correct?
To the people that I talked to who were involved in this case, nobody visited the Mokeshot website, no.
Okay.
So the source of the image, where they knew it came from, nobody actually went and visited that source?
Rejection form.
That's my understanding, yes.
Okay.
They should have done that, you agree?
Or the company agrees?
Rejection form.
Yes, they should have verified the photo before they ran with it.
Okay.
Now, were you aware that on the mugshots.zone website, it shows that this booking photo was for a booking for evading arrest in 2022 for an individual that was 35 years old?
Have you seen that before?
No, I was not aware of that.
If that information was out there, that's information that would have been beneficial for Newsmax to have, wouldn't it?
Yes.
Okay.
But even if they didn't have that information, Newsmax producers should have known that someone with a booking photo was not the shooter, right?
At the time the photo was ran, that we used the photo, they assumed that it was the correct photo.
Well, my question is, I understand what they thought, right, when they didn't verify the photo.
But they should have known, if they had done a job up to Newsmax's expectations, they should have known that a booking photo did not depict the shooter.
Yes, they should have known.
Okay.
I want to ask you specifically the segment on Greg Kelly reports that night about the Allen shooting.
Did you view that segment in preparing for deposition or otherwise working on this case?
I have not viewed the Greg Kelly segment.
I have talked to Greg about the segment.
Okay.
Okay, well, I think it might be useful to show you an excerpt from that clip that I want to talk to you about.
Okay, so let's bring up tab 9, which is an excerpt from the Greg Kelly video.
We'll be marking this as exhibit 9. I'd like you to watch this brief clip from the show.
AJ, I think you're going to have to set up to share sound because I'm not getting any sound on that.
When you share your window, there should be a little box for share sound.
Whatsoever.
Until they told us this guy did it.
Mauricio Garcia.
And oh yes, a white supremacist with neo-Nazi ties.
Now, look, this is not a white supremacist.
And oh, by the way, we abhor white supremacy.
But you know what the left does, right?
They think anything MAGA must be white supremacist.
That is appalling.
This is just pathetic, all right?
Now, there's a tattoo, many tattoos, and someone at one point tried to say, that's the city of Dallas tattoo.
No, it looks like it's the Puro Tango Blast.
This is not a white supremacist.
Yes, if you stand on your head and cross your eyes and take a drag on a cigarette, one of those etchings might look like a swastika.
This is what they do now.
This is what it's all about.
Trying to tarnish or somehow diminish the other side by any means possible.
This, again, totally pathetic.
Okay, I have a couple questions about this.
First, Greg Kelly told his audience that the shooter was not a neo-Nazi.
That's right?
Yes, based on the photo that he was getting.
Okay, that wasn't sure.
All right.
I know that you've shown photos that the shooter who died at the scene had neo-Nazi tattoos, so I assume that he was a neo-Nazi and therefore Greg so I assume that he was a neo-Nazi and therefore Greg was Mr. Kelly denied that the shooter had neo-Nazi tattoos, correct?
Based on the photo that he was given at the time of that report, yes.
Well, he was talking about mini tattoos.
You remember him talking about the various tattoos?
Yes.
All right.
So he wasn't just talking about that one image, right?
Because that one image just has one tattoo on the neck of my client's girlfriend's name.
So he was clearly talking about the tattoos that were being discussed that day, correct?
I was saying that, but in my conversation with Greg, he based that segment off of the photo that he was given, which was the incorrect photo.
Well, he certainly also talked about a City of Dallas tattoo, right?
He did, yes.
And he denied that the shooter had a City of Dallas tattoo, right?
Objection point.
Based on the photos that he was given for this segment, that's correct.
Okay, he's basing his comments about the City of Dallas tattoo and it not being a City of Dallas tattoo, he's basing that on the image that we just saw?
That's correct, yes.
This whole bit about the Puro Tango blast gang, that's not true.
Neither the shooter or the plaintiff whose picture Newsmax used have anything to do with the prison gang.
Objection point.
Our reporters who were in the field were passing back information that they were getting from investigators, and the Puro Tango...
That was part of that information that was being passed back from our investigators.
Right, but my question is that's not true, right?
None of that was true.
objection point.
Do you mean that was not true for your client or for the shooter?
Both.
Nobody had any involvement with you last.
Objection point.
I understand that your client wasn't involved.
I just know that at the time that the stories ran, our investigators who were in the field were getting information back that possibly the shooter was involved in that game.
You know, subsequently, if that information wasn't correct, it wasn't passed on to our investigators.
Now, the person, let's talk about this for a second, this Puro Tango blast thing.
Somebody at Newsmax had a source, a guy who is a law enforcement consultant, right?
That's who they were talking to?
Yeah, Jason James is a reporter for us, lives in Texas, former law enforcement.
Okay.
And so Newsmax wasn't, he's, in other words, Newsmax was talking to a former law enforcement source.
And he was investigating the shooting for us.
So he was talking to investigators who were on the scene.
Okay.
And this investigator told somebody at Newsmax that the city of Dallas tattoo that was on the shooter's hand was a possible indicator of Puro Tango blast affiliation.
Correct?
That's correct, yes.
Okay.
But at the same time, you'll agree with me that...
Newsmax law enforcement source warned Newsmax that you could not make any sort of definitive conclusions about any gang affiliation at that time.
From the emails I saw to the news test, that's right.
And then Mr. Wallace, the news director, specifically warned the producers and the reporters not to...
Report innuendo based on this Puro Tango blast issue, correct?
Yes.
Okay.
Mr. Kelly and his show, they did it anyway, right?
Yes.
Despite Mr. Wallace's warnings, correct?
Yes.
Okay.
They say that they didn't see Mr. Wallace's warning.
Okay.
Have you seen an email from Mr. Wallace involving edits that were made to a Newsmax article about the Puro Tango blast issue?
I don't remember the email specifically, but I reviewed all the emails that we provided, so I have seen it, yes.
Okay.
Do you have memory that after Mr. Wallace sent that, that he specifically forwarded it to Greg Kelly's personal email address?
No, I don't have that.
I want to talk about the following day, which is May 9th, 2023, after Newsmax used the...
In fact, let's stop for a second here.
Actually, let's go ahead and pull up Tab 10. All right, we're going to be marking this as Exhibit 10. And you will see that this is an email sent on May 9th at 1040 in the morning, correct?
Correct, yes.
Okay.
Elliot Jacobson is a Newsmax Executive Vice President, correct?
Yes, that's correct.
Okay.
Some of the other folks on this email, Mr. Wallace is the news director, right?
Correct, yes.
Gary Konofsky is a Newsmax executive, a vice president, right?
That's correct.
John McGrory is a researcher?
Yes, he's in charge of the research division.
Okay.
And Christopher Knowles, that's another vice president.
Yes, Christopher Knowles is the executive producer in charge of Primetime Show.
Okay.
So here we have a subject wrong photo.
And what...
Mr. Jacobson says is, we have an issue with this photo.
A number of our shows ran with it.
Need to understand how that happened so we can both communicate that and make sure it doesn't happen again.
You see that part, right?
Yes.
Okay.
So at this point, Mr. Jacobson is then asking, one of the people he's asking to do this is John, the researcher.
He wants to try to figure out how this happened, right?
That's correct, yes.
Okay, and then Jacobson says that six different Newsmax shows all broadcast the wrong photo, is that correct?
That's correct, yeah, based on the list you have there, yes.
Okay, each one of those shows has its own producer?
That's correct, yes.
Now, are there multiple producers for each one of these shows?
That's correct, yeah.
All producers have either an executive producer or a senior producer.
Okay.
And then the show will have a few bearings based on the show.
We'll have several other producers who work on individual packages for the show.
Okay.
And then I imagine those shows also have writers.
Is that right?
Producers are the same thing as writers.
Okay.
Other than the producers, is there anybody involved in these shows, who staff these shows, who would have been involved in the acquisition, selection, and decision-making about whether to use this photo we're talking about?
No, the shows pretty much work independently from each other.
They all make their own, their producers make their own news judgments in concert with the news desk.
Okay.
So if we have a producer and an associate producer or an executive producer, you'd agree with me, we basically, if we have six shows, we're talking about at least 12 producers, right?
Objection point.
At least, yeah.
Okay.
So this photo passed through the hands of at least 12 producers and was aired based on their judgment.
Objection point.
Yes.
Okay.
If you can scroll up to the top of this email, you'll notice here we have another one of these situations where you have an email sent at 1040, and then the response comes in.
It says 241. I think we're going to see from some later emails that that time is actually 1041. Let me put it this way.
It'd be typically Mr. Gorey's practice, if he could, to respond immediately to his boss's demands and not wait several hours for something like this.
Yes.
Again, I have no way of verifying the time stamps on any of these.
Okay.
Well, let's take a look at tab 11. All right, and I want to go down to Mr. McGrory's email here.
And we see that this one was sent at 219 p.m., correct?
Correct.
Okay, and you'll see Mr. Jacobson's email down below that we saw before from 1040 a.m.
This is in response to that.
So we can see that by 219 p.m., Mr. McGrory had provided a report on the photo, correct?
Correct.
Okay.
He says, attached is a report of the media journey of the incorrect picture.
Have you seen that report before?
Yes.
Okay.
He is, at this point, sending it to Mr. Jacobson, who is an executive vice president, correct?
Correct.
Okay.
I want to look at that attachment, which is Mr. McGorry's report.
Can we bring up tab 12?
All right.
In this report, the first thing he says in red print is, it would seem to have begun with a tweet from a, quote, ultra mega business owner, unquote, who goes by the name or goes by the handle, quote, Blue Star.
Do you see that?
I see that.
Are you familiar with what ultra mega means?
Just in a general political sense.
Can you explain to us what ultra mega means?
To say a high end, a very, to my knowledge, it's somebody who's a very big Trump supporter.
Okay.
And then we have a handle, Blue Star, but we have no idea who that person really is, right?
That's correct.
Okay.
He says, you'll see here in the paragraph that's offset below the link, He says, a quick look at the replies to her tweet show the fever swamps.
Some proposing the liberals set up the shooting to discredit whites.
Do you see that?
Yes.
Fever swamp.
That's not a positive description.
Would you agree?
Yes.
What does the company take that to mean?
Based on the formatting, I would assume, without having looked at that Twitter, that that is a quote from the Twitter site, or the Twitter post.
You think the term fever swamps was used in the Twitter post?
I would assume so, based on the formatting.
If you look at the paragraph after that, it says, after that tweet, some websites took the picture and posted it.
Right.
My assumption based on the report is that the indented paragraph that you read that has the word is the quote from Bluestar.
Oh, I see.
You don't think that Mr. McGrory took a quick look at the replies and made a subjective judgment about what he was seeing?
Not the way I read it, but that's not the way I took that paragraph, no.
Okay.
All right.
He says the wrong picture appears on the following websites.
And the first one he has is msn.com.
Do you see that?
I do.
Have you visited that link?
I haven't visited the link, but I have several of the producers that I talked to who said that they saw that photo at that link, yes.
Okay.
Several of your producers said they saw it at that link, huh?
Yeah.
That's strange.
I have internet browser history.
Have you looked at those internet browser history pages?
No.
Okay.
Well, first of all, do you know what article that this MSN link directs to?
My assumption, based on the person who told me that they saw it on MSN, is it links to that South African website.
Okay.
You heard of something called Hollywood Unlocked before?
They're a co-defendant in your case?
No.
Okay.
I know that they're a co-defendant, but I've never visited their website.
Okay.
Well, I'll represent you.
That's what we're looking at, that MSN link.
There's other emails, I don't know if you've seen, that have that Hollywood Unlocked page aggregated by MSN. Yeah.
Have you seen an MSN page produced in the document production that has the Hollywood Unlocked article in it?
I believe so, yes.
Okay.
Hollywood Unlocked, does Newsmax consider them have reason to believe that they're a reputable news organization?
I have no way of knowing their reputation.
Okay.
Daily Coast.
Are you familiar with that website?
Yes.
Okay.
My understanding is Daily Coast is a sort of Democratic Party activist website where anybody can sign up and create an account and create blogs on that website.
Okay.
Is that your understanding as well?
I don't visit the site, so I just know Daily Coast exists.
I don't really know much about it beyond that.
The company has no reason to think that the blogs posted on daily costs have any indica of journalistic reliability, do they?
No.
Okay.
And then below that, Macquarie has a list of questionable websites that he refers to.
Do you see that?
Yes.
The company agrees with Mr. McGuire that these are all pretty questionable websites.
Yes, I would agree with John's assessment.
Okay.
So we know that in a couple of hours of looking at it, Mr. Maguire was able to trace the origin of the photo?
Yes.
None of the 12 or more producers who looked at this photo did anything like that, correct?
That's correct.
And let me see to maybe address what I'm sure is going to be famous on that objection.
None of the 12 producers who saw the photo and used the photo were able first, were able to track the image to its origin, correct?
None of them did that?
That's correct.
Okay, and none of them...
Most of the producers who worked on shows that used it that I discussed this topic with said that the photo was on our shared drive where approved photos normally live.
So the mistake on our part was the first producer who used the photo and then placed it on the drive without getting approval from our news desk to do so.
Let me make sure I understand this.
So the producers on Greg Kelly's show, the only thing driving their decision to use the photo was the fact that it was on the system.
It was on the shared drive that the news desk uses to put approved photos.
And they also, one of the Greg Kelly producers also went out and that's where she found, as you showed us the email earlier, and I talked to her about this.
She found the ABC website in Wichita that also was using the photo with the story.
So she saw the photo on our news desk, verified that another ABC, which is also a very large major media company, was using the same photo with the story.
Wait, hold on.
I want to make sure I understand you here.
When we talk about ABC being a very large media company, we're actually talking about an ABC local affiliate.
Just some reporters in Wichita, Kansas, working on a local news website.
We're not talking about ABC National News Desk, are we?
We're talking about an ABC affiliate, but still, the ABC affiliates, my understanding, and I may be wrong, is ABC affiliates have to follow the same journalistic standard that The main ABC has to call.
But didn't we see in emails earlier that Newsmax should not lower itself to the MSM status of the folks who will just put out anything?
Don't you hold yourself to a higher standard than the MSM? Objection form.
Yes.
So it's not really proper to just see something on a local website in Wichita, Kansas and assume that that's good and that they must have done their job, right?
Objection form.
Yes, it was a mistake on our producer's part.
And the fact is, is that that image that was retrieved from that Wichita, Kansas site had a website credit on the image where you could have checked where it came from.
That was possible, right?
Yes.
And that didn't happen, right?
That's right.
Let's go to tab 13. Okay, here we are still on May 9th, the day after, and I want to show you an email that Mr. Wallace, the news director, sent at 2.49 p.m.
Do you see that?
Yeah.
All right, and again here, Mr. Wallace is emailing three Newsmax executives along with a researcher, correct?
Correct.
These people who are Newsmax executives here, Mr. Jacobson, Mr. Knowles, Mr. Konofsky, Those are Mr. Wallace's.
They have authority over him.
They're his bosses.
Correct?
Technically, the only person who has authority over Chris Wallace is Elliot Jacobson.
Okay.
So it's best to say that he is sending an email here to his boss and some other individuals at Newsmax, including executives.
That's correct.
Okay.
Now, early that afternoon, he says that Valenti and Julia came to me yesterday and asked me about it, and I told them not to run it.
Do you see that?
I do, yes.
Valenti and Julia are producers, correct?
Yes, they're producers on other shows that did not run the photo.
Okay, what shows are those?
I believe Valenti is on the American Agenda show.
Okay.
I'm not sure which show Julia is on, but I would assume that Julia is also on the American Nintendo show as well.
Okay.
Mr. Wallace says, I honestly just figured folks wouldn't fall for this.
Do you see that?
Yes.
And by fall for this, he means use the photo, right?
That's my assumption, yes.
Okay.
Do you see in the second paragraph, Mr. Wallace says this was a pretty obvious unforced error.
Do you see that?
Yes.
The company agrees with that?
Yes.
I want to go down to the next email where it's an exchange between Michael Valenti and Chris Wallace.
And actually, if you can scroll it down just a little more and all the way to the bottom here to Michael's first email.
Okay.
I can actually go back up to the bottom of the page.
All right.
And you'll see here that Mr. Wallace has forwarded an email conversation he had with Mr. Valenti, correct?
Correct, yes.
Okay.
And he says, essentially, Mr. Valenti asks Mr. Wallace if the photo that they have is accurate, that if that is the Texas shooter.
Do you see that?
Yes, I do.
Okay.
And he asks him if it's the mug of the Texas shooter, right?
That's correct.
And so I take it the two sort of meanings that come out of this.
Either he means that's his mugshot, or he could be using the colloquial use of the word mug to mean face, right?
One of those two things.
Yeah.
We're talking about a face shot of the shooter.
Yeah.
Okay.
Let's scroll up to the next email.
And then Mr. Wallace says, The photo is circulating on social and nowhere else to my knowledge, so no, I can't confirm it's him.
Have you seen it on any news sites?
I only find it on social and blogs and no sourcing.
You see that?
And then Mr. Valenti says he'll hold off, correct?
Yes.
Okay.
When Mr. Wallace says he hasn't seen any sourcing, can you tell us...
From the company's perspective, why is sourcing important?
Well, to validate information.
We have a policy that we won't use social media or blogs as a primary source for information, but we will use other major media that is running information.
Or our own investigation.
So sourcing for us is something that's very important to make sure that we have the information for us.
Okay, let me address.
There are certain parts of the media landscape, certain companies in the media landscape that I imagine Newsmax has a higher opinion of than others.
Is that fair?
Yes, I guess.
Okay.
For instance, everybody has their own We don't have a specific company policy about other major media websites.
We don't use social or we don't use blogs.
If some other sourcing comes up, it's discussed before we run with it.
Another major news website is using an image, but its source is social or a blog to get that image.
Is that okay?
Can Newsmax use that image then?
Yes.
I mean, if the other...
There's an assumption that they've done some background.
If their story basically says that they haven't done any background checking on it, that would...
Hopefully bring a red flag to our journalists here, but obviously that didn't happen.
What if they don't say anything?
What if they just publish the image and say our source is Twitter?
We found it on a Twitter page of some random anonymous person.
Is that okay?
If the original source is back to social and blogs and that kind of thing, then it wouldn't be okay for us.
So, for instance, when KKAE... This Wichita local news website when they used a photo that was clearly sourced to a mugshots website, right?
Newsmax needed to verify that sourcing before it used that photo, correct?
Yeah.
AJ, can you bring up tab 14 and bring it up side by side with Tab 13. All right.
And so, what I have here, and I'm going to try to bring them up to the same, is we have on the left-hand side, I have the copy of the email we were just looking at.
This is what Mr. Wallace forwarded to his boss and other executives, all right?
And then on the right-hand side, I have exhibit, what we're going to mark as exhibit 14. And this is the original email that Wallace sent to Valenti, the original copy.
All right, and I want to look at them side by side.
And do you notice in the email that Wallace sent to Valenti at 3.39 p.m.
in the middle of the page, do you see that in the copy that he sent to his boss and the executives, Yes,
I see that.
That's sort of a dishonest thing to do, wouldn't you agree?
No, not necessarily if he's trying to explain to the executives his stance on the matter.
Well, I mean, he's trying to make it look to his boss that he told Valenti and no sourcing.
But he didn't tell Valenti and no sourcing.
You wouldn't agree that's kind of dishonest?
No, because he's explaining to his executives on the left-hand, On the right hand, he said social and blogs.
Valente obviously understood that and said, same for me, I guess I'll hold off for now.
So Valente understood the implication.
I'm not, what I'm talking about is what his boss, what Mr. Jacobson was being told.
And what I'm trying to get at is Mr. Wallace, Was trying to make it look like to Mr. Jacobson that he said something to Valenti that he did not in fact say.
Do you see how that comes across?
I see it in the email and I understand your point, but I don't agree with you.
Okay, and if you look at the original email to Valenti, that email could be read as suggesting that sourcing wasn't really necessary as long as you've seen it on a news site.
Wouldn't you agree with that?
No.
Okay.
All right.
We've been going for just a little bit over an hour.
And I actually, I know I have you down for some time today, but I want to, first of all, thank you.
You've been really direct and responsive in your answers today.
Sometimes you get a witness who isn't familiar with this process and they sort of ramble at length about tangential stuff.
You have not done that today.
And so I really appreciate your cooperation and your help today.
I had you down for three hours.
We're not going to go full three hours.
You're probably not going to go much and pass into the second hour.
But I wanted to take just a quick break, one comfort break for our court reporter so I can use the restroom as well.
And so if we can come back in about 10, 15 minutes, something like that, and I'm hoping I only have about 30 more minutes with you.
Does that sound okay?
That's fine.
All right.
Thanks.
We can go off the record.
We are off the record at 11:09 a.m.
We are back on the record at 11:27 a.m.
All right, let's go ahead and pull up tab 15. All right, here we are looking at an email on May 9th at 7 in the evening.
This is the day after the publication of the image.
Again, from Mr. Jacobson, the Executive Vice President.
You see that?
I do.
Okay.
And we have subject need to address Texas shooter wrong photo.
You see that subject?
Yes.
Okay.
In the third paragraph of this email, Mr. Jacobson says, initially Bachman show found and used it.
Additional shows then repurposed it.
What is the full name of the Bachman show?
John Bachman now.
Okay.
So that would be the first producer who acquired and decided to use the image.
That's right.
Okay.
And then we see that there are these other shows, JBN, Salcedo, Greta, Bowling, Kelly, and WU all use the photo?
Yeah, JBN is John Bachman now.
So that's the first show.
Okay.
And then what is WU? WU is Wake Up.
So that's our morning show.
Okay.
So does that mean that Newsmax used the photo on May 9th as well?
Correct.
In the morning.
All right.
You'll agree with me that by that morning, By the morning of May.
First of all, what time, Eastern Time, does the wake-up show air?
6.30.
Okay.
You'll agree with me to that prior to that time, Newsmax had been contacted with inquiries from other media asking about the erroneous use of the photo.
I'm not sure what time the other media contacted us about the use of that photo.
Wake Up may have occurred before we got contacted.
It's also my understanding that Wake Up basically used Greg Kelly's segment.
I see.
So they re-aired that video package that was already aired the previous night.
That's my understanding.
Okay.
You can go ahead and take that one down.
Before, you may have remembered that you had mentioned that prior to Newsmax's use of the photo, I believe you had said that the photo had been used by other major news websites.
Do you remember that?
Yeah.
Okay, so the websites that I know we've talked about today, we have talked about a local news website in Wichita, we've talked about something called Today News Africa, and we've talked about Hollywood Unlocked.
Were those the major websites that you're referring to?
The producer on John Bachman Now told me that he saw the story with the photo on Yahoo and then on MSN. And then he also saw it on the Africa Now website as well, I think, was where the final place that he saw it.
All right.
Now, Yahoo MSN. Things like Apple News.
They don't publish their own news, correct?
That's my understanding.
They're aggregators.
Right.
It's just a website that is useful for finding other websites, right?
Yes.
Okay.
And so we've talked about the MSN story being a Hollywood unlocked story.
When you talk about this Yahoo, do you have any idea what website we're talking about that that originated from?
No, I don't.
The producer told me that he saw the story with the photo on Yahoo.
Okay.
So as far as actual generators of news content who use this image before Newsmax put it on the air, do you know of any others besides this local news website, Today News Africa and Hollywood Unlocked?
I don't.
Okay.
Let's bring up tab 16. All right.
Let's go ahead and scroll to the top of this email.
And scroll down enough we can see the line of that last email too.
Okay.
That's perfect.
All right.
So now we see we have an email between Chris Wallace and Jerry Burke.
On May 9th at 5 in the evening.
Do you know who Jerry Burke is?
Jerry Burke is one of our executive producers.
Okay.
And I take it from his email address that he's copying, he works for the show American Agenda?
At the time of year, yes.
Okay.
Now you'll see that Mr. Burke asks, is the right photo of the guy in our system now?
And he's asking about the Texas shooting, correct?
Yeah.
Okay.
And then Wallace asks.
Do you see that?
Yeah.
Now, you understand that the New York Post had published an image of the actual shooter from his social media profile.
You were aware of that?
I wasn't, no.
Okay.
Well, regardless of what they published, the company would agree that Wallace is correct that just because it was published by a commercial newspaper like the New York Post, it isn't enough to consider the photo verified.
At this point, after realizing that we had published an incorrect photo, Wallace was trying to be Very careful about anything we publish related to this story.
And that's what everyone at Newsmax should have been doing from the beginning, right?
Section 20. Correct.
And they weren't.
You agree with that?
Section 20. Correct.
Okay.
Let's bring up tab 17. Now, I'm showing you now an email that was sent about a week later, about a week after all this happened, and that was on 5-17-2023.
This email was sent by Amalia Sella.
Is that how you say her name?
Amalia Sella.
Amalia Sella.
Okay, she's an executive producer, right?
Yeah, for Chris Salcedo's show.
Okay.
That was one of the shows that published the wrong picture, right?
On the 8th, correct.
So now this producer a week later is asking, did we ever get an official photo of this prolific poster and notorious white supremacist?
Do you see that?
Yes.
Ms. Sella is still mocking the idea that this shooter is a white supremacist, correct?
I am not going to venture to guess what's inside Amalia's head with this.
She's not somebody you talked to for this deposition, right?
She's not, no.
Okay.
So it's fair to say of all the...
Well, first of all, let's put it this way.
I haven't seen your name in any of the emails that were produced regarding the decision-making process over using this photo.
Is that right?
You weren't involved?
That's correct, yeah.
Day-to-day decisions are made for broadcast by Chris Wallace and Elliott Jacobson.
So Chris is in charge of the desk.
Chris, Gary Panofsky, and John McGorry are the resources around verification of information that we use, and they all report to Elliott.
Okay.
So, in other words, in order for you to have information about the decision-making process and thoughts of individuals who did decide to use the photo, you would have to actually talk to them.
And in terms of the 12 producers who were involved in making decisions about using this photo over the course of that day, you did not talk to all of them.
I did not talk to all 12, no.
I talked to specifically the shows that were in the notice that was sent to us, the legal notice that you sent to us, specifically Greg Kelly's show and Eric Bolin's show.
I also talked to Chris Tomas.
We work for John Bachman now, which is the producer who originally, who originated the story in our system.
Okay.
Does the company now, does the company think that there was, does the company have doubts that the Alan shooter was a white supremacist?
Objection form.
I don't think the company has any opinion one way or the other about whether the shooter who died was a white supremacist.
Okay.
We were just recording information that we were getting.
All right, you can pull that down.
From the company's perspective in reporting on these types of news events, does the company believe it is better to be first or accurate?
Connection form.
Better to be accurate.
Okay.
When making the decisions about whether to publish this type of photo, does Newsmax take into account or consider?
The potential damage that might be done if someone is falsely accused of being a mass murderer.
The campaign takes into consideration any incorrect information that we may publish, regardless of whether it's a mass murderer or any other news story.
Our desire as journalists is to publish Accurate information that allows the public to make a decision about what they want to do, not to guide them and tell them what they should or shouldn't do.
Okay.
I guess what I'm getting at is, for instance, Newsmax knows that any time it reports a fact, that that assertion of fact may reach potentially millions of viewers.
Correct?
That's correct.
And, for instance, in this specific case, Mr. Kelly's reporting was ultimately seen by millions of people.
You would agree with that?
I honestly did not review the ratings from that night.
Well, I mean, you would know, for instance, that Mr. Kelly's material is not simply just aired on Newsmax.
But it is foreseeable and pretty regular that his material is shared on social media, for example.
Correct?
Yes, I mean, obviously all of our content has a reach beyond the actual broadcast.
And Newsmax understands that if a false fact about an individual is communicated to a very large audience like Newsmax can reach...
That that can be very damaging for that person.
One of the reasons that Newsmax needs to be careful about information of this nature, accusations of heinous criminal acts, is that a false accusation is very damaging for the person who it is aimed at.
Company agree with that?
Yeah, can you come on?
Publishing incorrect information can be damaging in and of itself.
How damaging is not something that I have the ability to ascertain.
Well, I'm not asking you to determine how damaging it would be.
What I'm asking is the company understands that if it falsely accuses someone of mass murder that is damaging to that individual.
Yes, I mean we strive to be correct and you know when we're wrong we correct ourselves And in this case, every show put a correction in the same place as where they originally showed it the night before to correct ourselves, which is part of our process as well.
You've heard the old adage, a lie goes around the world.
Before the truth can put its pants on.
You heard that adage before?
Newsmax understands that part of the reason it needs to be careful about making serious, heinous allegations of criminal conduct that turn out to be false is that a correction of those comments does not fully remedy the damage that was done to that person.
Newsmax understands that?
Yes, but that's also why we have a policy of when we make a mistake that we correct in the same place of the show that we publish the information so that the same audience will see the correction and we don't hide it at the end of the show.
We don't bury it.
We do the correction at the same time at the next show to make sure that we correct it.
I know that Craig Kelly did that.
And Newsmax understands that the same individuals aren't watching the show every night, right?
Some individuals watch some shows, some individuals watch others.
Right?
I think you'll find with the news audience that we have, and all news channels have a very loyal audience.
Greg Kelly's audience is a very loyal audience.
While there may be some people who aren't watching from day to day, the vast majority of them probably are.
Okay.
But we know there will be some who are not.
That's correct, yeah.
We also know that how Mr. Kelly's segments spread on social media are sort of up to the whims and vagaries of how social media works, right?
That's correct, yes.
So it is Newsmax understands when thinking about the potential damage that might be done, knows that a correction may not spread on social media the same way that a very attention-attracting report might spread on social media.
Yes.
In deciding to use plaintiff's photo, Newsmax producers did not act as carefully as they should have.
Correct.
You would agree that Newsmax producers failed to investigate the truth or falsity of the photo before publication?
Yes.
You do not dispute that information was available on May 8th that would have created serious doubts about the accuracy of the photo Newsmax was using.
I do not dispute that.
Newsmax doesn't dispute they did a terrible wrong to our client, Mauricio Garcia, who had nothing to do with the shooting.
Can you ask that in a different way?
I mean, I'd like the way that I'd asked, which is that Newsmax agreed.
it did a terrible wrong to our client.
If I wrong, you may mistakenly use this photo incorrectly, then yes.
Yes.
I mean, in doing that, in using that wrong photo, the mistake Newsmax made was not living up to the standard of what a reasonable journalist should do, correct?
By making that mistake, our producers did not follow our procedures yet.
Okay, and your procedures are there to ensure that they act as reasonable journalists, right?
That's correct.
And that did not happen in this case?
That's correct.
Okay.
Just to make sure for the record, in case I missed any, all of the tabs we are offering today, we're offering them as exhibits in order.
So, I believe we are 1 through 17, and we will provide those to the court reporter here at the conclusion of the deposition.
That's all I have for you today, and I appreciate your time with us today.
All right.
Thank you.
And ready to go off the record.
Thank you.
All right.
And, Joel, if you wouldn't mind sticking around after everyone goes so I can...
Confirm with you on a couple issues.
Before we go off the work, do you want to make a copy of the video?
Yeah, I'd like the transcript and video.
For Univision, just the transcript and the exhibits, please.
No video.
And the same for Ladder with Crowder.
Transcripts and exhibits, please.
Same for Mr. Schroer, please, as well.
Now we're off the record at 11.47 a.m.
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