Q. So when you prepared this report, did 5 Mr. Pash see any drafts of this report before it was 6 final? 7 A. I don't know whether that's privileged or 8 what. You tell me. 9 MR. NASH: I would object to the extent that 10 your answers would have to reveal any privileged 11 communications. But otherwise, I think you can 12 answer subject to that objection. 13 A. Okay. I don't want to waive anything, but 14 the answer is yes. 15 Q. He did receive drafts of the report? 16 A. Yes, sir. 17 Q. Okay. Did he give you comments on the report 18 before it was issued after seeing it either verbally 19 or in writing? 20 MR. NASH: I think the best way -- I don't 21 want to get into -- 22 THE WITNESS: You guys tell me what to do. 23 MR. NASH: I think there's been a ruling 24 about Mr. Wells's testimony. So to the extent that 25 they are addressing Mr. Pash's role, I think the 71 of 172 sheets Page 266 to 269 of 457 06/25/2015 03:43:11 PM DIRECT/WELLS/KESSLERPage 266 1 ruling had to do with whether Mr. Pash was 2 substantially involved in the investigation or in 3 the report itself. 4 If they want to ask questions to that, they 5 certainly can do so. But I would object on 6 privileged grounds to questions about communications 7 between Mr. Wells and Mr. Pash, the General Counsel 8 of the NFL. 9 MR. KESSLER: Let me now state the following, 10 if I can. Mr. Wells just testified he was 11 independent and the NFL was not his client. 12 Therefore, Mr. Pash's communications with him 13 could not be privileged under any possible 14 application of the privilege, unless Mr. Wells wants 15 to change his testimony and state that the NFL was 16 his client in this matter, which would mean he is 17 not independent. 18 MR. NASH: I object. You are 19 mischaracterizing what he said. 20 MR. KESSLER: Okay. 21 Q. Was the NFL your client in this matter? Did 22 you act as their lawyer when you did this 23 investigation? 24 A. To my understanding, I was being hired by the 25 NFL, and that's who pays my bills, to do what I have DIRECT/WELLS/KESSLERPage 267 1 described as an independent investigation with 2 respect to Deflategate. And what I mean by "an 3 independent investigation," is that the opinions 4 represented in this report and conclusions were 5 those of myself and the Paul, Weiss team. 6 Jeff Pash, and I don't think this waives any 7 privilege, Jeff Pash did not attend any witness 8 interviews. I did not deliberate or involve him on 9 my deliberations with respect to my assessment of 10 those interviews. Mr. Pash played no substantive 11 role in the investigation itself. So I'm trying to 12 give you facts without waiving. 13 Q. I will ask it this way. 14 A. Okay. 15 Q. Did you consider the NFL to be your client 16 for purposes of the attorney-client privilege -- 17 A. Yeah. 18 Q. -- with respect to the preparation of this 19 investigative report? 20 A. Yes. 21 Q. Okay. That is fine. 22 Now so, therefore, I will just ask you -- 23 A. Okay. 24 Q. -- will you not, then, answer questions about 25 what type of comments Mr. Pash made on your draft DIRECT/WELLS/KESSLERPage 268 1 report before it was -- before it was issued? 2 A. I'm going to follow whatever -- it's not my 3 privilege, sir. I just have to -- need to follow 4 his advice. 5 MR. NASH: Yeah, I would object to the extent 6 that I think Mr. Wells has already explained the 7 role of Mr. Pash, the role of the Paul, Weiss firm 8 and who the report was prepared by and who the 9 conclusions -- who prepared the conclusions as well. 10 To the extent that he wants to get further 11 into communications, I think he's now trying to get 12 into attorney-client privilege. 13 MR. LEVY: Without prejudice to the assertion 14 of any privilege down the road, Mr. Wells can answer 15 the question that was presented. The question was, 16 did Mr. Pash give you any comments? 17 Q. Yes. Did he provide written or oral 18 comments? 19 A. Yes. 20 Q. Okay. Were they written? 21 A. Not to my knowledge, but the truthful answer 22 is he didn't provide any to me, okay. 23 Q. Did he provide it to another member of your 24 team? 25 A. I believe so. DIRECT/WELLS/KESSLERPage 269 1 Q. Okay. And you don't know whether they were 2 in writing or orally? 3 A. I do not. 4 Q. Do you know what the contents were of his 5 comments? 6 A. I do not, except to say they couldn't have 7 been that big a deal because I don't think I heard 8 about them. But, you know, Mr. Pash is a very good 9 Harvard-trained lawyer. If you give a 10 Harvard-trained lawyer a report this thick, he's 11 going to have some kind of comment. So I assume 12 whatever it was, it was some kind of wordsmithing. 13 I can tell you this without waiving any privilege. 14 Mr. Pash -- Mr. Pash's comments did not 15 affect, and from the time I gave him that -- 16 whenever he got that draft of the report, did not 17 impact in any substantive fashion the conclusions 18 with respect to my findings with respect to 19 violations by the Patriots or violations by 20 Mr. Brady, nothing. You know, there was no 21 substantive change. 22 Q. Mr. Wells, I assume that you are not the 23 first drafter of this report, correct? One of your 24 colleagues would have prepared the first draft and 25 you would have reviewed it; is that fair? 06/25/2015 03:43:11 PM Page 270 to 273 of 457 72 of 172 sheets DIRECT/WELLS/KESSLER Page 270 1 A. I think that's privileged, but I will answer 2 as long as it's not a waiver, yes. 3 Q. Okay. Would your principal colleague on this 4 case be Mr. Lorin Reisner who is seated over there? 5 A. Correct. 6 Q. Now, Mr. Reisner, you observed, was 7 representing the NFL and cross-examining Mr. Brady 8 and Mr. Snyder in this proceeding; is that correct? 9 A. That is -- I saw it. You saw it. 10 Q. Okay. So, and Mr. Reisner was one of the 11 principal lawyers working with you on this 12 independent investigation, right? 13 A. If you read the report, it basically says 14 that. 15 Q. So is it fair to say Mr. Reisner -- is Paul, 16 Weiss also being compensated for representing the 17 NFL in this hearing, conducting cross-examination? 18 Have they been hired as NFL counsel for that 19 purpose? 20 A. As I understand it, again, if I can answer 21 without waiving any privilege, in terms of 22 cross-examining both the experts and cross-examining 23 Mr. Brady since we had already examined him and done 24 the work, everybody thought it would be more 25 efficient -- DIRECT/WELLS/KESSLER Page 271 1 MR. NASH: I am going to stop you right 2 there, Mr. Wells. I don't think this is an 3 appropriate line of questioning and we are now 4 getting into privilege. And I have to say it also 5 isn't relevant to any issue in Mr. Brady's appeal. 6 MR. LEVY: Sustained. 7 MR. KESSLER: Okay. I would ask you to, just 8 for the record, my observation that the statement 9 that the Paul, Weiss firm is independent is clearly 10 not correct. We now have testimony that they 11 represented the NFL in this proceeding. They viewed 12 the NFL as their client. 13 Q. I will just ask one more question about this. 14 A. Sure. 15 Q. Do you agree, Mr. Wells, as an attorney, that 16 you, when you have a client or any client, the NFL, 17 anyone else -- 18 A. Sure. 19 Q. -- you have a duty under the ethical rules to 20 zealously advocate and advance the interest of that 21 client? Is that fair, under the ethical rules? 22 MR. NASH: Objection. We are now getting 23 into arguments. 24 MR. LEVY: Sustained. 25 THE WITNESS: Okay.
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