Deposition of Daniel Kim — Blue Flame Medical LLC v. Chain Bridge Bank, N.A. (E.D. Va., Dkt. 150-8)
Summary
This is Exhibit 92 in Document 150-8 of Case 1:20-cv-00658, excerpts of the remote deposition via Zoom of Daniel Kim, taken Monday, March 29, 2021. The witness confirms that Thomas offered to sell 100 million N95 masks at a low cost with quick shipping, and says getting masks fast mattered most because the witness says "We wanted to save lives". The witness says STO was asked to call before the wire, that he wanted to speak with Thomas, and that some information "would have raised alarm bells." Other pages cover the manufacturer Huang, a March 27th "workaround" text and the advance payment.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Deposition of Daniel Kim — Blue Flame Medical LLC v. Chain Bridge Bank, N.A. (E.D. Va., Dkt. 150-8).”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-20-cv-00658-dkt-150-8-e-d-va-6f442fdcad/
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EXHIBIT 92
Daniel Kim 3/29/2021
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1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF VIRGINIA
3 (Alexandria Division)
4 - - - - - - - - - - - - - - - X
5 BLUE FLAME MEDICAL LLC, :
6 Plaintiff, :
7 v. : Civil Action No.
8 CHAIN BRIDGE BANK, N.A., : 1:20-cv-00658
9 JOHN J. BROUGH and DAVID M. :
10 EVINGER, :
11 Defendants. :
12 _____________________________ :
13 CHAIN BRIDGE BANK, N.A., :
14 Third-Party Plaintiff, :
15 v. :
16 JPMORGAN CHASE BANK, N.A., :
17 Third-Party Defendant. :
18 - - - - - - - - - - - - - - - X
19 Remote Deposition
20 Monday, March 29, 2021
21 Deposition via Zoom of DANIEL KIM, a
22 witness herein, called for examination by counsel for
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1 Q. And continuing on in that same paragraph,
2 in the document that we've been looking at, in the
3 third sentence you say, "He offered to sell 100M N95
4 masks at a low cost (relative to the current market
5 rate) and have the items ship quickly to California."
6 First, do you understand 100M to refer to
7 100 million?
8 A. Yes.
9 Q. And do you recall Mr. Thomas making this
10 offer?
11 A. Yes.
12 Q. You say that he offered to sell the 100
13 million N95 masks at a low cost relative to the
14 current market rate. Do you recall what the current
15 market rate was in March of 2020?
16 A. Let's put it this way. We were getting
17 price ranges up to $12 a mask. I think prior to
18 that, prior to the pandemic, they were as cheap as 63
19 cents a mask. But at the ranges that we were getting
20 from most folks who had quantities were, if I recall,
21 somewhere around 6 to $8.
22 Q. And then the next sentence goes on to say,
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1 "As our focus was to get N95s as quickly as possible,
2 and the price was reasonable, our state procurement
3 staff were very interested in Mr. Thomas' offer."
4 Is this accurate?
5 A. Yes.
6 Q. Was getting masks as quickly as possible a
7 top priority for California?
8 A. Yes.
9 Q. And why was that?
10 A. We wanted to save lives.
11 Q. Did Mr. Thomas say he quickly he could
12 have the items delivered to California?
13 A. Yes. I don't recall the specifics, but he
14 was talking about days or weeks.
15 Q. And was the low cost relative to the
16 current market rate also a significant factor for DGS
17 in looking at vendors?
18 A. Less significant than when we could
19 receive them.
20 Q. Do you recall at this point if Mr. Thomas
21 offered a specific price per mask?
22 A. Yes.
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1 Defendants' Exhibit 110?
2 THE REPORTER: 111.
3 MS. FORSTEIN: 111, thank you.
4 So Defendants' Exhibit 111 is Bates number
5 BFM_DGS -- BFM_CA_DGS0775.
6 (Defendants' Exhibit No. 111 was
7 identified for the record.)
8 BY MS. FORSTEIN:
9 Q. Mr. Kim, were you able to open that?
10 A. Yes.
11 Q. And if you look at the top email, this is
12 an email from you at 6:26 p.m. on March 25th asking
13 that, "STO, please call me tomorrow a.m. before the
14 wire transfer happens."
15 Is this the communication that we were
16 just discussing in which you asked STO to alert you
17 before the wire goes out?
18 A. Yes.
19 Q. And why did you ask that STO call you
20 before the wire transfer happened?
21 A. In case there was additional information
22 we received between that day and the next day.
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1 Q. Were there any particular issues that you
2 wanted to learn more about?
3 A. We were in discussions with another
4 vendor, so wanted to get a sense of what that vendor
5 could do.
6 Q. Who was that other vendor?
7 A. I'm not sure, but I believe it was 3M.
8 Q. And at the time, the state was in
9 discussions with that other vendor, possibly 3M,
10 about potentially procuring N95?
11 A. Yes.
12 Q. Did you have any concerns at that point
13 about Blue Flame Medical?
14 A. That's a broad statement. Again, this is
15 an advance payment. I'd have concern with anyone we
16 were doing an advance payment for. But any
17 additional concerns were raised? No.
18 Q. Was there any additional information that
19 you wanted to get about Blue Flame Medical before the
20 wire went out?
21 A. My staff had done the vetting, but I
22 wanted to -- I don't know if it -- I don't know the
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1 sequence of events, but I believe I wanted to talk to
2 Mr. Thomas myself.
3 Q. And why did you want to talk to Mr. Thomas
4 personally?
5 A. I felt this was a large transaction and
6 wanted to get a sense -- not that that would sway
7 whether we were authorized, because we were
8 authorized to make this advance payment. I just
9 wanted to see if I could get any additional
10 information that would either give me more comfort or
11 less.
12 Q. And in connection with this other vendor
13 that you were considering at the time, was DGS
14 interested in purchasing 3M masks?
15 A. Yes.
16 Q. Did DGS have a preference for 3M masks
17 over other models of masks at that point in time?
18 A. We were -- beggars couldn't be choosers.
19 We were looking for any N95 masks, period.
20 Q. Do you recall whether you spoke with
21 Controller Betty Yee on the evening of March 25th?
22 A. I don't know. If it was the 25th, I might
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1 A. Yes.
2 Q. Would this information have impacted your
3 impression of Blue Flame Medical as a vendor?
4 MS. PORTER: Objection. Calls for
5 speculation.
6 BY MS. FORSTEIN:
7 Q. Mr. Kim, you can answer.
8 A. It would have raised alarm bells.
9 Q. Did you speak with Controller Yee again
10 after this conversation with Mr. Thomas?
11 A. About what?
12 Q. About anything on the evening of March
13 25th.
14 A. Not that I recall.
15 Q. If you had known about -- had you had
16 known this additional information about Blue Flame
17 Medical that you said might have set off alarm bells,
18 would you have told this to Controller Yee?
19 MS. PORTER: Objection. Calls for
20 speculation.
21 THE WITNESS: Controller Yee is not within
22 my chain of command, so she would not have any
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1 bearing on our decision to purchase or procure
2 through Blue Flame.
3 BY MS. FORSTEIN:
4 Q. Understood. I'm asking about Controller
5 Yee because Mr. Chivaro, representing the SCO's
6 office, testified that you spoke with Controller Yee
7 twice on the evening of March 25th, once before and
8 once after you spoke with Mr. Thomas.
9 Understanding that she's not part of your
10 department, I was simply trying to understand what
11 you may or may not have conveyed to her if you had
12 additional information at the time.
13 A. I don't recall.
14 Q. I'm going to put two additional documents
15 into the chat function. So this is BFM_CA_DGS 5363,
16 which I believe will be Defendants' Exhibit 112 and
17 BFM 000200134, which will be Defendants' Exhibit 113.
18 (Defendants' Exhibit Nos. 112 and 113
19 were identified for the record.)
20 BY MS. FORSTEIN:
21 Q. And if you could open both of these
22 documents.
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1 2281.
2 MS. FORSTEIN: It's about halfway down the
3 page, the second paragraph.
4 MS. PORTER: Objection. Misstates the
5 document. I see the name Henry. I don't see the
6 name Mr. Huang. Or maybe I do and it's just too --
7 it's just too --
8 MS. FORSTEIN: It's a bit blurry.
9 MS. PORTER: -- it's just too light of a
10 print to see. Okay. Very good. Thank you.
11 MS. FORSTEIN: Sure.
12 BY MS. FORSTEIN:
13 Q. Mr. Kim, is this the manufacturer that you
14 discussed with Mr. Thomas on the phone?
15 A. Yes.
16 Q. And did you have an understanding at the
17 time as to how Mr. Huang planned to source product?
18 Was he planning to manufacture it himself?
19 A. Again, it's a bit blurry, but my
20 understanding was he owned the plant and manufactured
21 these.
22 Q. If you look at page 2 where fortunately
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1 the text clears up a little bit and might be a bit
2 easier to read, on the same document there's mention
3 of he -- I believe still referring to Mr. Huang --
4 "moving heaven and earth to steal from neighboring
5 factories and promised to deliver the full order from
6 his shop alone."
7 Did you understand that Mr. Huang would
8 also be obtaining product from other factories?
9 A. I wasn't clear on -- I recall seeing this
10 and wasn't clear on what that meant because he said
11 he would deliver the full order from his shop alone.
12 And frankly, from my standpoint, that was irrelevant.
13 I just needed the product. And it had to be N95s and
14 it had to be delivered quickly.
15 Q. Did anyone at DGS vet Henry Huang?
16 A. I don't know.
17 Q. Do you know if any other departments in
18 the state of California vetted Henry Huang?
19 A. No.
20 MS. PORTER: Objection. Calls for
21 speculation. Lack of foundation.
22 BY MS. FORSTEIN:
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1 document with your notes, DGS 6516.
2 A. Mm-hmm.
3 Q. If you look at the middle of the second
4 page, it says, "On 3/26 at roughly 5:00 p.m., I
5 talked to two members of the CHP for roughly 15
6 minutes." Do you see how then the text appears to
7 peter out where it says, "I told them that," and then
8 there's blank space?
9 A. Yes.
10 Q. Do you know -- do you know why this stops
11 mid sentence?
12 A. No. I think I wrote some stuff and I
13 didn't save it, but I did not -- I don't know why.
14 But it was not redacted or edited out consciously.
15 Q. And if I could direct you back to
16 Defendants' Exhibit 112, which is the text chain with
17 you and Mr. Thomas. The title is BFM 000200134.
18 A. Mm-hmm.
19 Q. I apologize. I'm having a technical
20 difficulty.
21 A. Sure.
22 Q. If you look at the third text message on
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1 March 27th at 8:02:55 a.m.
2 A. Mm-hmm.
3 Q. It looks like Mr. Thomas said, "Hi, Dan.
4 Can you call me ASAP? I found a workaround that you
5 and the State will like for the product we have on
6 its way."
7 Did you ever learn what this workaround
8 referred to?
9 A. I believe this is in reference to the --
10 moving the monies in smaller tranches to a different
11 bank. I believe it's the same as the workaround that
12 he talked about on March 26th at 4:58 p.m., but I
13 don't know because I didn't talk to him about that.
14 Q. And Mr. Thomas wrote, "I found a
15 workaround that you and the State will like for the
16 product we have on its way."
17 Did you understand Mr. Thomas to be saying
18 that Blue Flame Medical already had masks in transit
19 to California at this point in time?
20 A. That's what his text indicated, that
21 something was on its way.
22 Q. Did you understand this to be the one
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1 million masks that Mr. Thomas had told you he was
2 having put on a jet as a measure of goodwill?
3 A. I don't know. I just looked at the text
4 and I didn't ask -- I didn't ask for clarification.
5 Q. Why didn't you ask for clarification?
6 A. Because I didn't think it was in the
7 state's best interest for me to talk to him at that
8 point in time.
9 Q. And why was that?
10 A. Because the CHP had been involved. And I
11 don't know if I talked to the FBI before or after
12 that, but I wanted to -- there was no point in me
13 discussing at this point in time until I got a better
14 sense of what our next steps would be as a state.
15 Q. And at that point in time, who would have
16 determined what the state's next steps would be?
17 A. Again, at that point in time with the
18 pandemic, there were a number of people working
19 together on these issues and I think we would be
20 consulting with a number of parties.
21 Q. And I know you've mentioned some of them
22 before, but I just want to make sure I understand
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1 sort of what the structure was at that unique point
2 in time in California. So who would you have been
3 potentially consulting with?
4 A. I would be consulting with my secretary,
5 my boss, and I'm sure she would be consulting with
6 others as well. And given that this was an
7 investigation, Cal OES has an investigative arm, so
8 they would be looking into the matter.
9 Q. And if you rook back at the text message
10 chain, if you look down, there's a few responses back
11 and forth. And then at 8:56:10 a.m., you say, "As I
12 mentioned, I will have to elevate this and someone
13 will be in touch with you."
14 Who would you have elevated this matter
15 to?
16 A. I think I was not elevating this matter.
17 I was just telling him that this was being elevated.
18 I think by that time, we had had a conversation with
19 Mr. Thomas and Mr. Bearman and asked them -- I think
20 they had proposed moving the monies in tranches. I
21 had asked about why the monies were returned and that
22 caused us alarm and I'd have to investigate that
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1 further before we proceeded.
2 And I want to clarify that that thumbs-up
3 was not to Mr. Thomas. I accidentally responded to
4 him when I was responding -- or thought I was
5 responding to someone else about something else. And
6 that's why I wrote that other note below saying I
7 thought I was texting a colleague from the state
8 about a meeting.
9 Q. And in the call that you had with
10 Mr. Thomas and Mr. Bearman, did they tell -- when you
11 asked why the monies were returned, what did they
12 tell you?
13 A. I recall that the sum was too large and
14 that's why it got kicked back. But I don't know the
15 details. Indicated that the bank had made some
16 mistake.
17 Q. And after these texts on March 27th that
18 we have in this document, did you have any further
19 contact with Mr. Thomas at any point in time after
20 these texts?
21 A. No.
22 Q. At any point after March 26th, did
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1 Mr. Thomas ever tell you that a shipment of masks
2 would arrive on April 2nd?
3 A. I don't believe I had contact with
4 Mr. Thomas after the phone call that I had with him
5 and Mr. Bearman. He may have texted me. I don't
6 know. But it would have been in this chain, right?
7 So I don't know.
8 Q. Do you recall if, after the conversation
9 you had with Mr. Thomas and Mr. Bearman, anyone told
10 you that a shipment of Blue Flame Medical masks would
11 arrive on April 2nd?
12 A. No.
13 Q. Do you recall if Mr. Thomas ever told you
14 that Blue Flame Medical could provide a list of other
15 states and organizations that had contracted with
16 Blue Flame Medical?
17 A. No.
18 Q. Did Mr. Thomas ever tell you that Governor
19 DeSantis of Florida would be happy to speak with you
20 about working with Blue Flame Medical?
21 A. I don't recall.
22 Q. Did you ever speak with anyone in the
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1 government of Florida about Blue Flame Medical?
2 A. No.
3 Q. After March 26, did you have any further
4 contact with Mike Gula?
5 MS. PORTER: Objection. Assumes facts not
6 in evidence.
7 THE WITNESS: I don't believe I had any
8 contact with Mike Gula, period.
9 BY MS. FORSTEIN:
10 Q. And after the call that you had with
11 Mr. Thomas and Mr. Bearman on March 26th, did you
12 have any further contact with Mr. Bearman?
13 A. No.
14 Q. And after March 26th, just to round this
15 out, did you have any further contacts with anyone
16 else at Blue Flame Medical?
17 A. No. The last contact I had was that
18 conversation I had with Mr. Bearman and Mr. Thomas
19 and the texts that I sent saying that I didn't --
20 that thumbs-up was not for him.
21 Q. Did you ever speak with the FBI about Blue
22 Flame Medical?
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1 logistics commodity movement task force.
2 Q. Do you recall what the secretary's
3 reaction was to learning that the FBI was
4 investigating Blue Flame Medical?
5 A. I don't recall, but I'm sure it wasn't
6 good.
7 Q. Could you explain what that means?
8 A. Well, I don't think anyone likes having
9 anything investigated by the FBI. But, you know, we
10 were looking into this and seeing what do we do about
11 this. We -- but I'm not clear what -- what you want
12 me to say or ask. I need some more -- what are you
13 trying to get at?
14 Q. I'm truly just trying to understand what,
15 if anything, the reaction was --
16 A. The reaction was probably similar to mine.
17 Negative. Wow. This is not good.
18 Q. Do you know if California continued to
19 discuss payment mechanisms and terms with Blue Flame
20 Medical after March 27th?
21 MS. PORTER: Objection. Lack of
22 foundation.
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1 THE WITNESS: I don't know of any.
2 BY MS. FORSTEIN:
3 Q. Did you know that Michael Wong continued
4 to email with John Thomas about pricing and payment
5 options after March 27?
6 A. No.
7 Q. Did you know that Blue Flame Medical
8 opened an account at a different bank where it could
9 receive wires in early April of 2020?
10 A. No.
11 Q. Did you have any communications at any
12 point with Stephanie Daily Smith about Blue Flame
13 Medical?
14 A. No.
15 Q. Do you have any recollection of California
16 wanting to see proof of Blue Flame Medical's product
17 by April 2nd?
18 A. No.
19 Q. Do you have any recollection that around
20 April 2nd, California was discussing another deal for
21 N95 masks with another vendor?
22 A. We were discussing that with multiple
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1 OES, Cal Fire, EMSA and public health as part of the
2 team. But it really depended on that specific
3 procurement, who was looking at it.
4 Q. Do you know which of those agencies were
5 involved in the vetting of Blue Flame Medical?
6 A. No.
7 Q. I believe you said earlier today that you
8 had an 8:00 a.m. deadline with respect to issuing the
9 wire transfer to Blue Flame for the advance payment
10 and that you had been given that time, 8:00 a.m., by
11 your staff.
12 Did your staff ever tell you why Blue
13 Flame needed the wire transfer by 8:00 a.m. that day?
14 A. My vague recollection it was staff. My
15 understanding was we needed it by 8:00 a.m.
16 because -- my earlier understanding was we needed it
17 by 5:00 p.m. the date prior to that so that Blue
18 Flame wanted the advance as soon as possible.
19 MS. FORSTEIN: And I object to the
20 question for misstating testimony.
21 BY MR. KETCHAM-COLWILL:
22 Q. Do you have an understanding as to why
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1 Blue Flame wanted that advance payment as soon as
2 possible?
3 A. My understanding is that there were a
4 number of other entities that wanted to procure N95
5 masks. And so to secure the supply, we needed to
6 provide the payment sooner rather than later so that
7 we would be the ones to receive the masks.
8 Q. And just a little while ago, you spoke
9 with Ms. Forstein about a company called BYD that the
10 state contracted with to prepare -- sorry, to supply
11 N95 masks and other masks. And I believe you said
12 that BYD provided the state with a shipment schedule
13 during the negotiations of that contract that
14 included penalties if BYD did not perform according
15 to that schedule.
16 Do you recall that testimony?
17 A. I recall saying that. I don't know if
18 penalties is the right term. I know I used that when
19 Ms. Forstein asked the question. But I know that we
20 had provisions and clawbacks included.
21 Q. Do you recall specifically what those
22 were?
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