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Case 2:16-cv-00453-RJS-BCW Document 21 Filed 07/21/16 Page 1 of 16

David J. Jordan (1751)


David J. Williams (9186)
Jordan C. Bledsoe (15545)
STOEL RIVES LLP
201 S. Main Street, Suite 1100
Salt Lake City, UT 84111
Telephone: (801) 328-3131
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT


DISTRICT OF UTAH, CENTRAL DISTRICT
THE CORPORATION OF THE
PRESIDENT OF THE CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS, a Utah Corporation sole; LDS
FAMILY SERVICES, a Utah Non-Profit
Corporation,
Plaintiffs,
v.

Case No. 2:16-cv-00453-RJS


MOTION TO QUASH SUBPOENA AND
FOR ENTRY OF PROTECTIVE ORDER
AND SUPPORTING MEMORANDUM
Judge Robert J. Shelby
Magistrate Judge Brooke C. Wells

RJ, MM, BN, LK, individuals,


Defendants.
The Corporation of the President of The Church of Jesus Christ of Latter-day Saints and
LDS Family Services (LDSFS) (together, the Church Entities), by and through their
counsel, respectfully submit this Motion to Quash Subpoena and For Entry of Protective Order
and Supporting Memorandum (the Motion).

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INTRODUCTION
Defendants RJ, MM, BN, and LK (collectively, Defendants) have filed claims against
the Church Entities in the Navajo Nation District Court (the Tribal Court) seeking damages
for alleged child abuse occurring decades ago while they were living with host families in Utah
as part of the Indian Student Placement Program (the ISPP). In response, the Church Entities
commenced the present action seeking a declaration that the Tribal Court lacks subject-matter
jurisdiction over them. Whether the Tribal Court may properly exercise jurisdiction over the
Church Entities is the only issue in this case.
Defendants have issued a deposition subpoena (the Subpoena) for President Thomas
S. Monson, the president and ecclesiastical leader of The Church of Jesus Christ of Latter-day
Saints (the LDS Church), a worldwide organization with over 15 million members. In
justification of their discovery demand, Defendants claim that President Monson has unique
information concerning the jurisdictional facts in this case. Nothing could be further from the
truth.
The only connection President Monson has to this case is that he happened to be a
senior leader of the LDS Church during the time period Defendants allege they were abused.
Defendants do not claim that President Monson, in his role as an LDS Church leader, had
responsibility for the administration of the ISPP. Nor do Defendants suggest that President
Monson has personal knowledge of their participation in the ISPP or of their alleged abuse. In
fact, President Monson has no knowledge of facts bearing on the Tribal Courts jurisdiction.
The Church Entities do not oppose limited discovery on the jurisdictional issues in this

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case. 1 Accordingly, the Church Entities offered to make available a 30(b)(6) witness with
personal knowledge of relevant facts to be deposed. Defendants counsel declined and insisted
on deposing President Monson.
Defendants discovery strategy is inconsistent with established case law that bars
deposing a senior entity officer unless relevant evidence cannot be obtained in the first instance
from a lower-level employee. The sound policy underlying that rule is to prevent undue
burden on an apex officer and to discourage subversion of the discovery process to gain some
perceived leverage or tactical advantage. Those concerns are particularly applicable here. As
such, the Court should quash the Subpoena and enter a protective order barring President
Monsons deposition.
STATEMENT OF RELIEF SOUGHT AND GROUNDS THEREFOR
Pursuant to Federal Rules of Civil Procedure 26(b) and 45(d), the Church Entities move
for (a) an order quashing the Subpoena commanding President Monson to testify at deposition,
and (b) entry of a protective order barring President Monsons deposition. 2 The grounds for the
Church Entities Motion are as follows 3:

It is the Church Entities position that the relevant jurisdictional facts are undisputed,
i.e., that no abuse occurred on the Navajo reservation, and Defendants were all placed in host
homes off the reservation.
2

It is unclear why Defendants have subpoenaed President Monson rather than simply
noticing his deposition as an officer of a party entity. To address that eventuality, the Church
Entities are moving both to quash the Subpoena and for entry of a protective order.
3

The Subpoena is also improper as premature. Generally, a party may not seek
discovery from any source before the parties have conferred as required by Rule 26(f) unless
authorized by a court order or agreement of the parties. Living Scriptures v. Doe(s), No.
1:10CV0182 DB, 2010 WL 4687679, at *1 (D. Utah Nov. 10, 2010) (quoting Fed. R. Civ. P.
(continued . . .)
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1.

Defendants do not (and cannot) allege that President Monson has unique
personal knowledge of relevant jurisdictional facts in this case;

2.

Defendants have not sought to conduct discovery through less burdensome


means by deposing lower-level employees with relevant knowledge;

3.

President Monsons deposition would be unduly burdensome; and

4.

President Monsons deposition is sought for an improper purpose.


FACTUAL BACKGROUND

Defendants File Actions Against the Church Entities in Tribal Court


1.

The Church Entities were sued in three separate actions in Tribal Court by

Defendants, who are members of the Navajo tribe. See Second Amended Complaint for
Declaratory Judgment (Second Am. Compl.) (Dkt. 17), at Exhibits A-C.
2.

Defendants assert that between 1965 and 1972 (BN), 1976 and 1983 (RJ and

MM), and 1978 and 1979 (LK) they participated in the ISPP. They allege that as part of the
ISPP they agreed to be placed in the homes of host families outside the Navajo reservation to
attend public school, and that, while living in those homes, they were sexually assaulted. See RJ
and MM Am. Compl. 7, 14-24, 27, attached as Exhibit A to Second Am. Compl.; BN Compl.
6, 13-18, 21, attached as Exhibit B to Second Am. Compl.; LK Compl. 8, 13-18, 20,
attached as Exhibit C to Second Am. Compl.

(. . . continued)
26(d)). The parties here have not had a Rule 26(f) conference, and Defendants have not moved
for expedited discovery.

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The Church Entities Commence an Action Seeking a Declaration that the Tribal Court
Lacks Subject-Matter Jurisdiction
3.

On May 31, 2016, the Church Entities commenced this action by filing a

Complaint for Declaratory Judgment seeking a declaration that the Tribal Court lacks subjectmatter jurisdiction over the Church Entities. See Dkt. 2. The Church Entities also moved for a
temporary restraining order and preliminary injunction precluding Defendants from pursuing
their claims in Tribal Court. See Dkt. 3.
4.

After BN and LK filed their own complaints in Tribal Court, the Church Entities

Amended their Complaint for Declaratory Judgment and Motion for Preliminary Injunction to
include them. See Dkt. 17, 19. The Court is scheduled to hear the Church Entities Motion for
Preliminary Injunction on August 22, 2016.
Defendants Seek to Depose President Monson
5.

On June 24, 2016, counsel for Defendants sent a letter (the June 24 Letter)

and subpoena to counsel for the Church Entities. Defendants counsel subsequently sent an
amended subpoena (the Subpoena) commanding President Monsons appearance for a
deposition on August 4, 2016. A copy of the June 24 Letter and the Subpoena are attached
hereto as Exhibit A.
6.

The June 24 Letter described Defendants purported grounds for seeking

President Monsons deposition:


We believe President Monson has unique information about allegations in the
aforementioned [declaratory judgment] complaint. For example, this complaint argues
that jurisdiction doesnt extend to activities of nonmembers of the tribe and that case
law doesnt allow Indian tribes to exercise civil jurisdiction over the activities or
conduct of non-Indians occurring outside their reservations. However, there are facts
contrary to these claims that we believe President Monson is aware of.

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Ex. A.
7.

The statements in the declaratory judgment complaint to which Defendants refer

are actually quotes from relevant case law, not factual averments about which President Monson
would have some unique information. See Second Am. Compl. (Dkt. 17) 19-20.
President Monson Lacks Knowledge of the Relevant Jurisdictional Facts
8.

LDS Social Services (now known as LDS Family Services) administered the

ISPP. Declaration of Roger Van Komen (Van Komen Decl.) 2, attached as Exhibit B.
9.

LDS Social Services employees in Salt Lake City and its Utah regional offices

(off the reservation) made ISPP placement decisions concerning Navajo tribal members placed in
Utah. Id. 4.
10.

Defendants assert that President Monson was a senior LDS Church leader during

the time that Defendants were allegedly abused while participating in the ISPP. June 24 Letter at
2-3. They further claim that, given his leadership position, President Monson would likely have
information relative to the claims his corporation is making. Id.
11.

But, President Monsons responsibilities as a senior leader of the LDS Church

during the relevant time period (or at any other time) did not include oversight of the ISPP. Van
Komen Decl. 5.
12.

And, in his position as a senior leader of the LDS Church during the time period

in this case, President Monson would not have been advised of the particulars of Defendants
participation in the ISPP. Id.
13.

More importantly, the alleged tortious conduct of placing Defendants in the

homes of unsuitable host families where they claim they were abused did not occur on the

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reservation. In fact, all of the placements were in homes off the reservation. See Second Am.
Compl. (Dkt. 17) 9-10. No act of abuse is alleged to have occurred on the reservation. Id.
10.
President Monsons Current Responsibilities
14.

President Monson is the president and ecclesiastical leader of the LDS Church, a

worldwide organization with more than 15 million members. 4


15.

President Monson is the highest-ranking official of the LDS Church. In his

position, President Monson presides over the members of the LDS Church.
RULE 26(c) CERTIFICATION
In an effort to avoid having to bring the present motion, the Church Entities counsel
conferred with William Keeler, counsel for Defendants, regarding Defendants proposed
deposition of President Monson. Specifically, the Church Entities counsel explained that
President Monson lacks knowledge of the relevant facts and offered to make available a
30(b)(6) witness with personal knowledge of the administration of the ISPP. Defendants
counsel rejected that offer and insisted on deposing President Monson.
LEGAL STANDARD
Rule 26(c) of the Federal Rules of Civil Procedure provides that the court may, for
good cause, issue a protective order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense. Pia v. Supernova Media, Inc., 275

See The Church of Jesus Christ of Latter-day Saints, Newsroom, Facts and Statistics
(last visited July 11, 2016), http://www.mormonnewsroom.org/facts-and-statistics (stating the
total Church membership is 15,634,199).

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F.R.D. 559, 560 (D. Utah 2011) (quoting Fed. R. Civ. P. 26(c)). Under the rule, the party
seeking protection has the burden to show good cause for the relief sought. Id.; Rohrbough v.
Harris, 549 F.3d 1313, 1321 (10th Cir. 2008) (The good cause standard of Rule 26(c) is
highly flexible, having been designed to accommodate all relevant interests as they arise.
(citation omitted)).
Similarly, Federal Rule of Civil Procedure 45(d)(3)(A)(iv) states, On timely motion,
the court for the district where compliance is required must quash or modify a subpoena that
. . . subjects a person to undue burden. It further provides, A party or attorney responsible
for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden
or expense on a person subject to the subpoena. Fed. R. Civ. P. 45(d)(1).
ARGUMENT
I.

GOOD CAUSE EXISTS TO ISSUE A PROTECTIVE ORDER AND QUASH


DEFENDANTS SUBPOENA.
Courts have consistently held that good cause exists to enter a protective order barring

the deposition of an individual holding a high-level corporate position, such as President


Monson, where
(1) the executive has no unique personal knowledge of the matter in dispute; (2) the
information sought from the executive can be obtained from another witness; (3) the
information sought from the executive can be obtained through an alternative
discovery method; or (4) sitting for the deposition is a severe hardship for the
executive in light of his obligations to his company.
Asarco LLC v. Noranda Mining, Inc., No. 2:12-CV-00527, 2015 WL 1924882, at *3 (D. Utah
Apr. 28, 2015) (internal quotation marks and citation omitted; emphasis added); Turner v. City of
Detroit, No. CIV.A. 11-12961, 2012 WL 4839139, at *2 (E.D. Mich. Oct. 11, 2012)
(recognizing that satisfaction of any of the above factors creates a rebuttable presumption that
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good cause exists to bar the deposition of a high-ranking corporate executive, which
presumption must be overcome by the deposing party (internal quotation marks and citation
omitted)).
Here, good cause exists for the entry of a protective order and to quash Defendants
Subpoena because (1) President Monson does not have direct personal knowledge of the facts
of this case; (2) Defendants have not sought and have declined to conduct discovery using less
intrusive means by deposing lower-level employees with relevant personal knowledge; (3)
President Monsons deposition would be unduly burdensome; and (4) President Monsons
deposition is sought for an improper purpose.
A.

President Monson Does Not Possess Information Relevant to Defendants


Claims.

[W]hen a party seeks to depose high-level decisionmakers who are removed from the
daily subjects of the litigation, the party must first demonstrate that the would-be deponent has
unique personal knowledge of the matter in issue. Baine v. Gen. Motors Corp., 141 F.R.D.
332, 334 (M.D. Ala. 1991) (citing and quoting Cmty. Fed. Sav. & Loan Assn v. Fed. Home Loan
Bank Bd., 96 F.R.D. 619, 621-22 (D.D.C. 1983)). What is more, the unique personal
knowledge must be truly uniquethe deposition would not be allowed where the information
could be had through interrogatories, deposition of a designated spokesperson, or deposition
testimony of other persons. Id.; see also Reif v. CNA, 248 F.R.D. 448, 451 (E.D. Pa. 2008)
(recognizing that Courts deciding the issue of whether to permit the deposition of high-ranking
corporate executives . . . have focused their decisions on whether the executives [sic] possess
personal or superior knowledge).

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Courts routinely grant protective orders barring the depositions of high-level corporate
officers who lack direct personal knowledge of the facts of a case. See, e.g., Thomas v. Intl Bus.
Machines, 48 F.3d 478, 483 (10th Cir. 1995) (granting protective order in age discrimination
case preventing deposition of IBMs chairman, in part, because he lacked personal knowledge of
the employees claims); Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir.
1989) (affirming grant of protective order barring plaintiffs from deposing their employers CEO
who lacked knowledge regarding pertinent facts of the dispute); Salter v. Upjohn Co., 593 F.2d
649, 651 (5th Cir. 1979) (requiring plaintiff to demonstrate corporate executive had personal
knowledge and lower-level employees lacked knowledge before permitting executives
deposition); Evans v. Allstate Ins. Co., 216 F.R.D. 515, 518 (N.D. Okla. 2003) (granting
protective order prohibiting the depositions of defendants corporate executives because they had
no personal knowledge of the facts of the case).
The single issue in this case is whether the Tribal Court may exercise subject-matter
jurisdiction over the Church Entities. To establish Tribal Court jurisdiction, Defendants must
show, as a threshold matter, that the Church Entities engaged in actionable conduct on the
reservation. Montana v. United States, 450 U.S. 544, 565 (1981) (Indian tribes retain inherent
sovereign power to exercise some forms of civil jurisdiction over non-Indians on their
reservations. (emphasis added)). The only facts potentially relevant to that issue concern
where the conduct giving rise to Defendants abuse and negligence claims occurred. The most
Defendants can offer in that regard is a general statement that President Monson was a senior
leader of the LDS Church during the time that Defendants were participants in the ISPP.
Defendants do not (and cannot) allege that President Monson has unique personal knowledge of

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facts pertaining to this case. See June 24 Letter at 1-3. Defendants do not contend that President
Monson has any unique information related to the administration of the ISPP or that he had any
responsibility over that program. Id. Nor do Defendants claim that President Monson has
personal knowledge of their participation in the ISPP or their alleged abuse. Id. The fact is that
President Monsons responsibilities as a senior leader of the LDS Church did not include
oversight of the ISPP. 5 Van Komen Decl. 5. Further, President Monson would not have been
advised of the particulars of Defendants participation in the ISPP. 6 Id.
Simply put, President Monson does not have the requisite personal knowledge to be
subjected to a deposition. The Church Entities Motion should be granted on this basis.
B.

Defendants Have Not Exhausted Less Intrusive Means Before Seeking to


Depose President Monson.

Courts have discretion to limit discovery where the discovery sought can be obtained
from some other source that is more convenient, less burdensome, or less expensive. Fed. R.
Civ. P. 26(b)(2)(C)(i). Courts require a party seeking the deposition of a corporate officer to first
obtain discovery from lower-level employees where the corporate officer does not have unique
personal knowledge. See Thomas, 48 F.3d at 483 (granting defendants motion for protective

In an even greater stretch, Defendants argue that President Monson presumably has
information about the employment of George P. Lee with LDS Social Services prior to 1975.
Notably absent from Defendants complaints in their Tribal Court actions are any allegations that
George P. Lee played any role in their placement with host families.
6

In an ironic alternative argument, Defendants claim President Monsons lack of


knowledge is relevant. June 24 Letter at 2. That argument is baseless. What President Monson
does not know does not bear, in any respect, on whether the Tribal Court may exercise subjectmatter jurisdiction over the Church Entities.

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order barring deposition because plaintiff made no attempt to demonstrate that the information
she seeks to obtain from [IBMs chairman] could not be gathered from other IBM personnel, for
whom a deposition might have been less burdensome); Travelers Rental Co. v. Ford Motor Co.,
116 F.R.D. 140, 145 (D. Mass. 1987) (recognizing that there are a number of cases which
permit deferment of the depositions of higher executives until subordinates with supposedly
equal or greater knowledge have been deposed); M. A. Porazzi Co. v. The Mormaclark, 16
F.R.D. 383, 383 (S.D.N.Y. 1951) (denying request to depose vice president of company where
he could contribute nothing beyond that which would be gleaned from an examination of the
General Claims Agent).
Further, courts routinely require litigants to complete a Rule 30(b)(6) deposition before
allowing a high-level executives deposition to proceed. Abarca v. Merck & Co., No.
1:07CV0388 OWW DLB, 2009 WL 2390583, at *6 (E.D. Cal. Aug. 3, 2009) (holding plaintiff
seeking deposition of corporate officer failed to show it could not obtain the information it
sought through less intrusive means, in part, because no Rule 30(b)(6) deposition had been
completed); WebSideStory, Inc. v. NetRatings, Inc., No. 06CV408 WQH(AJB), 2007 WL
1120567, at *5 (S.D. Cal. Apr. 6, 2007) (requiring party to depose Rule 30(b)(6) witness before
taking deposition of corporate executive); Stone v. Morton Intl, Inc., 170 F.R.D. 498, 504 (D.
Utah 1997) (In determining what relief to allow, the court can consider whether the party
seeking the deposition has made an effort to obtain information under Rule 30(b)(6).).
Defendants have not sought to depose anyone in this case other than President Monson.
Nor have Defendants shown the need to depose President Monson because they cannot obtain
information elsewhere. Defendants have persisted in their discovery strategy despite being

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aware that lower-level LDS Church employees with personal knowledge of the relevant facts are
available for deposition. 7 Indeed, the Church Entities offered to designate a Rule 30(b)(6)
witness with personal knowledge to testify regarding the relevant facts. Defendants refused that
offer. Accordingly, Defendants should not be permitted to depose President Monson because
they have not sought to obtain the information through less intrusive means.
C.

President Monsons Deposition Is Unduly Burdensome.

The Court must quash or modify a subpoena that subjects a person to undue burden. Fed.
R. Civ. P. 45(d); Ahrens v. Ford Motor Co., 340 F.3d 1142, 1147 (10th Cir. 2003) (A courts
discretion to quash a discovery request due to . . . the overly burdensome nature of the request is
well established, particularly where the information is believed to be obtainable from another
source.). The deposition of a high-level officer is unduly burdensome if the officer does not
have personal or superior knowledge of the facts alleged and the information can be obtained
from lower-level employees. Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 125-26 (D. Md.
2009); United States ex rel. Galmines v. Novartis Pharms. Corp., No. CV 06-3213, 2015 WL
4973626, at *1 (E.D. Pa. Aug. 20, 2015) ([D]epositions of high-level officers severely burdens
those officers and the entities they represent, and . . . adversaries might use this severe burden to
their unfair advantage.).
As demonstrated above, President Monson does not have any unique knowledge of
relevant facts in this case. He is the highest-ranking official of a worldwide organization with

The Church Entities motion for preliminary injunction attached the declaration of
Roger Van Komen, a manager of LDS Family Services with personal knowledge of how the
ISPP was administered in the past. See Van Komen Decl. 1-4.

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more than 15 million members. He presides over the members of the LDS Church as their
ecclesiastical leader. Requiring him to devote time to preparing and appearing for a deposition
would subject him to undue burden. Defendants cannot seriously argue otherwise.
D.

President Monsons Deposition Is Sought for an Improper Purpose.

Courts . . . have the discretion to prevent oppressive, harassing, inconvenient, and


burdensome depositions of executive officials. Reif, 248 F.R.D. at 453; see also Fed. R. Civ. P.
26(c)(1); Gall v. St. Elizabeth Med. Ctr., 130 F.R.D. 85, 86 (S.D. Ohio 1990) (A party who
believes a deposition is being taken . . . for an improper purpose may move for a protective
order.). Courts have used their discretion to bar depositions of corporate executives sought for
improper purposes like abuse of the discovery process. Celerity, Inc. v. Ultra Clean Holding,
Inc., No. C 05-4374 MMC (JL), 2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 2007) (Virtually
every court that has addressed deposition notices directed at an official at the highest level or
apex of corporate management has observed that such discovery creates a tremendous potential
for abuse or harassment.); see also Mulvey v. Chrysler Corp., 106 F.R.D. 364, 366 (D.R.I.
1985) (denying party from taking deposition of the Chairman of the Board of Chrysler
Corporation and reasoning: The fact remains he is a singularly unique and important individual
who can be easily subjected to unwarranted harassment and abuse. He has a right to be
protected, and the courts have a duty to recognize his vulnerability.).
Here, the purpose of Defendants Subpoena is transparent. Defendants declined the
Church Entities offer to make available a Rule 30(b)(6) witness with knowledge of relevant
facts. Defendants Subpoena should be seen for what it isa tactical maneuver calculated to

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burden the apex leader of the LDS Church in a misguided attempt to create leverage in the
litigation. This is improper.
CONCLUSION
For the foregoing reasons, the Church Entities respectfully submit that the Court should
grant their Motion and quash the Subpoena and enter a protective order barring President
Monsons deposition.

DATED: July 21st, 2016.


STOEL RIVES LLP

/s/ David J. Jordan


David J. Jordan
David J. Williams
Jordan C. Bledsoe
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that that on the 21st day of July 2016, I caused a true and correct
copy of the foregoing MOTION TO QUASH SUBPOENA AND FOR ENTRY OF
PROTECTIVE ORDER AND SUPPORTING MEMORANDUM to be served electronically
on the following:
Craig K. Vernon
Wes S. Larsen
James, Vernon & Weeks, P.A.
1626 Lincoln Way
Coeur DAlene, ID 83814
cvernon@jvwlaw.net
William R. Keeler
Keeler & Keeler, LLP
108 E. Aztec Ave.
Gallup, NM 87301
billkeeler@keelerandkeeler.com

/s/ Rose Gledhill

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