DOCUMENT 784

ELECTRONICALLY FILED
7/1/2019 8:59 AM
03-CV-2018-900017.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK

IN THE CIRCUIT COURT OF

MONTGOMERY COUNTY, ALABAMA

LEIGH CORFMAN,

Plaintiff,

vs.
CIVIL ACTION NO. CV-2018-
900017.00
ROY MOORE, and
JUDGE ROY MOORE FOR US
SENATE,

Defendants.

PLAINTIFF LEIGH CORFMAN’S SUPPLEMENT TO MOTION TO COMPEL

DEFENDANT ROY S. MOORE TO RECONVENE DEPOSITION

Plaintiff Leigh Corfman seeks to reconvene and expand the deposition of defendant Roy

S. Moore in light of new evidence concerning a polygraph examination taken by Mr. Moore in

December 2017. Specifically, Ms. Corfman seeks to examine Mr. Moore about an affidavit he

submitted to this Court in December 2017 asserting (without supporting documentation) that a

polygraph examination “reflected that [he] did not know, nor had [he] ever had any sexual

contact with” Ms. Corfman and two other teenage girls when he was in his early thirties. On the

basis of this assertion, Mr. Moore states in the affidavit that their accounts of his conduct are

“false and malicious.” See Ex. A (Moore Aff.).

Mr. Moore’s claims of vindication are undermined by analysis of the polygraph

examination by Barry Colvert, the primary polygraph examiner and interrogator for the Federal

Bureau of Investigation’s Washington, DC field office for 17 years, and deposition testimony of
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Mr. Moore’s polygraph examiner, Clyde Wolfe. Ms. Corfman did not have the polygraph

results, much less Mr. Colvert’s analysis of the results or Mr. Wolfe’s testimony, when she

deposed Mr. Moore last year, and she should be permitted to use them to test his assertions when

his deposition is reconvened.

Ms. Corfman therefore supplements her motion to compel Mr. Moore to reconvene and

expand the scope of his deposition (Doc. # 676) to include questions concerning the polygraph

examination.

ARGUMENT

Mr. Moore filed his affidavit concerning the polygraph examination in his lawsuit

challenging the results of the 2017 Alabama Special Senate election. See Moore v. Merrill, No.

03-CV-2017-902015.00 (Cir. Ct. of Montgomery Cty., Ala., filed Dec. 27, 2017).

The affidavit, however, had nothing to do with Mr. Moore’s election fraud allegations.

To the contrary, Mr. Moore used the affidavit to publicize his version of the examination’s

results—launching yet another volley of accusations about Ms. Corfman’s veracity and

motivations for coming forward with her account of Mr. Moore’s sexual abuse of her. Ms.

Corfman rightly included Mr. Moore’s sworn statements as additional defamatory acts.

Complaint at ¶¶67–75.

Although Mr. Moore’s affidavit claims that the results of the polygraph examination

exonerate him and justify his statements about Ms. Corfman and the other women, he vigorously

opposed production of the examination results and related documentation. Not only did Mr.

Moore deny that he had the documents in his possession, Ex. B (Moore Responses to Corfman

1st and 2nd Set of RFPs), at ¶67, he opposed Ms. Corfman’s subpoena seeking their production

from his attorney, Trent Garmon, to whom Mr. Wolfe sent the results (Doc. # 200). See Ex. C

(Jan. 11, 2019 Hr’g Tr.), at 20:18–29:4.

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Discovery has undercut Mr. Moore’s claims about the polygraph. Mr. Colvert’s analysis

and Mr. Wolfe’s testimony make clear that Mr. Moore’s unqualified statement that the polygraph

examination “reflected that [he] did not know, nor had [he] ever had any sexual contact with”

Ms. Corfman, Ms. Nelson, and Ms. Johnson, see Ex. A, is an exaggeration, at best, and simply

false, at worst.

• First, contrary to Mr. Moore’s claim that the polygraph examination proves that

he did not know Ms. Corfman and his other accusers, the examination did not test

whether Mr. Moore knew the women. See Ex. D (Wolfe Dep. Tr.), at 181:4–8 (“Q. Did

you ask Mr. Moore when he was attached to all the sensors and everything any questions

about whether he knew Leigh Corfman, Beverly Nelson, or Tina Johnson? A. No.”); id.

at 180:13–17 (“As far as knowing [the accusers]—ever knowing or whatever, I mean, I

can . . . see how he could be telling the truth about that. It's just that I can't support it.”).

In other words, the person who administered the polygraph examination specifically

rejects one of the two claims by Mr. Moore regarding the examination’s results.

• Second, Mr. Wolfe told Mr. Moore before the examination that polygraphs are

“not perfect” and “not infallible” and that no definitive conclusions can be drawn from

the results. See Ex. D (Wolfe Dep. Tr.), at 80:14–81:7. Mr. Moore “knew . . . that the

courts didn't accept this. But . . . he had his own use for it, which I don't know what it

was.” Id. at 81:20–23. Accordingly, when Mr. Moore claimed that the polygraph

examination conclusively proves that he is telling the truth and that Ms. Corfman is not,

he knew that the results do not provide a basis for his assertion.

• Third, the examination administered to Mr. Moore deviated from accepted

practice within the polygraph industry. Mr. Wolfe reviewed a declaration prepared by

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Mr. Colvert, a reputed polygraph expert who reviewed Mr. Moore’s polygraph

examination results. Ex. E. After acknowledging Mr. Colvert’s qualifications (including

35 years as a Special Agent with the FBI), Ex. D (Wolfe Dep. Tr.), at 116:14–16, Mr.

Wolfe agreed with Mr. Colvert’s opinion that the “relevant-irrelevant technique” (“RIT”)

used for Mr. Moore’s examination is disfavored in the polygraph industry and is

declining in use. Ex. D (Wolfe Dep. Tr.), at 86:1–23, 87:4–88:10; 98:15–99:22.

Specifically, “the consensus within the polygraph industry” is that RIT tests “should not

be used” because they do “not satisfy the basic requirements of a psychophysiological

test” and suffer from “fundamental flaws in internal, face, and criterion validity, along

with lack of standardization of pre-test interviews, question sequencing, and procedures

for evaluating the test outcome.” Ex. E, at ¶8 (internal quotations omitted).

• Fourth, and finally, to the extent that the results of the polygraph examination

administered on him are reliable, Mr. Moore likely failed. After reviewing the data,

Mr. Colvert has determined that the “examination cannot support a conclusion of

non-deception or that Mr. Moore told the truth during his polygraph exam.” Ex. E, at

¶13. Rather, “to the extent it is appropriate to rely on RIT test results, the results

indicate that Mr. Moore was being deceptive when asked relevant questions

concerning Ms. Corfman.” Id. at ¶14. Specifically, after reviewing charts

documenting Mr. Moore’s physiological responses to questions concerning Ms.

Corfman, Mr. Colvert identified at least two instances where Mr. Moore exhibited

physiological responses to questions regarding his assault of Ms. Corfman that

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indicate deception. Ex. E, at ¶¶13–19. 1 First, Mr. Moore showed heightened

responses when answering “no” to questions asking whether he tried to have sex with

Ms. Corfman or to touch her breasts when compared to his responses when answering

“no” to a question asking whether he smokes cigarettes. The pattern repeated when

Mr. Moore was asked the same questions about Ms. Corfman a second time. Id. at

¶19. Mr. Colvert concluded that “[t]he consistent elevated responses to [questions

concerning Ms. Corfman] indicate a high probability that Mr. Moore’s

responses to those questions were deceptive.” Id. (emphasis added).

Other facts about the circumstances in which the polygraph examination was conducted

also call it into question:

• On December 19, 2017, Mr. Wolfe, a Republican who voted for Mr. Moore in the

2017 Senate election, drove an hour to administer the polygraph examination at Mr.

Moore’s apartment in Prattville, Alabama—an admittedly unusual practice. Ex. D

(Wolfe Dep. Tr.), at 105:22–106:2 (“Q. Is that typical that you would administer the

polygraph exam in somebody's home? A. No, it’s not.”).

• Mr. Wolfe sympathizes with Mr. Moore and gave him a discount on the

examination. Although Mr. Wolfe charges as much as $1,000 to conduct polygraph

examinations, Mr. Wolfe charged Mr. Moore only $400. See Ex. D (Wolfe Dep. Tr.), at

1
Mr. Wolfe does not agree with Mr. Colvert’s conclusion, but he acknowledges, “we're talking
about opinion here. We're not talking about exact science . . . And my opinion is that Moore
told the truth . . . And this guy right here [Mr. Colvert] . . . is certainly well qualified . . . he's
well experienced. It's just that anybody can make a mistake. We have similar experience, and
we disagree with each other. One of us is obviously wrong.” Ex. D (Wolfe Dep. Tr.), at 174:6–
20; see also id., at 166:23–167:3 (“Q. [A]nd this is something on which reasonable people can
disagree? A. That’s right.”).
(continued…)
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77:3–78:5 (“Well, Roy Moore, if—if he flunked this test, he was going to be finished.

And if it was made public, he would be absolutely finished. If he—if he passed the test,

he's probably going to be finished anyway because there—there's just no way you can

come out smelling like a rose in something like this. And I just don't want to pile on like

that.”). 2

Finally, it bears emphasis that Mr. Moore was less than candid with this Court about his

access to the polygraph results. In response to Ms. Corfman’s request for production, Mr. Moore

claimed that he did not have possession, custody, or control of the results. See Ex. B, at ¶67; see

also Ex. F (Moore Dep. Tr.), at 256:23–257:5. Yet Mr. Wolfe testified that he provided two

polygraph examiners 3 access to the polygraph results at Mr. Moore’s direction. See Ex. D

(Wolfe Dep. Tr.), at 19:17–23:23. Mr. Wolfe then confirmed the obvious: Mr. Moore could

have received all documents relating to the examination simply by asking him for them. See id.,

at 46:13–19 (“Q. If Mr. Moore had asked you for the documents that you produced to us, if he

had just picked up the phone and called you and said, can you send me the documents related to

my polygraph exam, would you have done that? A. I’d say you already have them.”).

CONCLUSION

Ms. Corfman respectfully moves the Court for an order compelling Mr. Moore to appear

for his continued deposition with express directions that his counsel may not prevent him from

2
Despite the discount, Mr. Moore (through Mr. Garmon) did not pay Mr. Wolfe for the
examination until 15 months later and, perhaps not coincidentally, just five days after Ms.
Corfman issued a subpoena to Mr. Wolfe in this action. See Ex. D (Wolfe Dep. Tr.), at 54:5–20.
Mr. Garmon paid Mr. Wolfe an extra $50 for reasons unexplained. Id.
3
Mr. Wolfe was able to name only one of the two examiners who reviewed Mr. Moore’s
polygraph results, Jimmie Flanagan. See Ex. D (Wolfe Dep. Tr.), at 19:17–23:23. Mr. Flanagan
signed an affidavit on March 21, 2018, disputing rumors that Mr. Moore was banned from the
Gadsden Mall in the 1970s for inappropriate conduct with underage girls, but he does not address
Mr. Moore’s polygraph results. Ex. G (Response to Corfman RFP #56).

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answering any question, including with respect to the polygraph examination, except on the basis

of privilege.

Respectfully Submitted,

July 1, 2019 /s/ Melody H. Eagan___________

One of the Attorneys for
Plaintiff Leigh Corfman
Of Counsel:
Harlan I. Prater IV Neil K. Roman
hprater@lightfootlaw.com Clara J. Shin*
Melody H. Eagan Megan L. Rodgers**
meagan@lightfootlaw.com Daniel W. Cho***
Jeffrey P. Doss COVINGTON & BURLING LLP
jdoss@lightfootlaw.com The New York Times Building
LIGHTFOOT, FRANKLIN & WHITE LLC 620 Eighth Avenue
The Clark Building New York, NY 10018
400 20th Street North (212) 841-1221
Birmingham, Alabama 35203 nroman@cov.com
(205) 581-0700 (telephone) cshin@cov.com
(205) 581-0799 (facsimile) mrodgers@cov.com
dwcho@cov.com
* San Francisco office
** Silicon Valley office
*** Washington, D.C. office

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CERTIFICATE OF SERVICE

I hereby certify that on this the 1st day of July, 2019, I electronically filed the foregoing
with the Clerk of the Court using the Alafile system, which will send electronic notification of
such filing to the parties. If Alafile indicates that Notice needs to be delivered by other means to
any of the following, I certify that a copy will be sent via U.S. Mail, properly addressed, postage
prepaid.

Melissa L. Isaak, Esq.

Nichole Woodburn
THE ISAAK LAW FIRM
P.O. Box 4894
Montgomery, AL 36103

Kenneth Shinbaum, Esq.

Julian L. McPhillips, Jr., Esq.
MCPHILLIPS SHINBAUM, LLP
516 South Perry Street
Montgomery, AL 36104

/s/ Melody H. Eagan

Of counsel