by Dave Gerard
This was a short privilege log. I had seen ones that spanned thousands of entries in bigger cases. No doubt Bock & Co. had sent it late, so I wouldn’t have a chance to look at it before tomorrow. I grinned. They hadn’t counted on me burning the midnight oil, I thought.
I scanned the log. There were emails between Badden & Bock, Stanley Stuttgardt, John Cartwright (the general counsel of Rockweiller Industries) and others with subject lines like “Re: David Marcum” and “Investigatory finding.”
Most of these emails were dated just months ago. I wondered again why they hadn’t given us any more recent employment records.
There was one person on the privilege log who didn’t have a Rockweiller or Badden & Bock email address. His name was Lloyd Gunthum. He had a simple gmail address. All of the others were easy to look up by their company bios and LinkedIn pages. But I couldn’t turn up anything about Lloyd Gunthum online. Just like David Marcum, I thought. I made a note to ask about Gunthum at the deposition.
Finally, there was one document title that was blacked out. Redacted. That was odd. Usually, you could redact parts of documents that were privileged, but not the title. The name of the document itself must be privileged. That was unusual, and I made a note to ask about that as well. I wrapped up my review and sent the documents to our researcher Lyle so he could save them. After that, I got ready for bed.
About fifteen minutes later, Lyle called me on my cell.
“Hey bud,” he said.
“Hey Lyle,” I said, glancing at the time. It was past midnight. “Working late?”
“Yeah. I’m calling about these documents you asked me to upload. You’ve got that deposition tomorrow, right?”
“Right.”
“There’s something I thought you should know.”
“What’s that?”
“You know that redacted entry in the privilege log? The one with the title blacked out?”
“Yes.”
“Get this. When I converted the file for storage, I noticed they didn’t redact it properly. Somebody didn’t scrub the metadata. That means we can see what’s under the redaction.”
I felt goosebumps prickle up my arms.
“Bush league mistake,” I said. I’d seen this happen before. First year attorneys would try to redact PDF’s manually, not realizing that the metadata would be unaffected.
“Exactly.”
“What does it say?”
“Take a look.”
Lyle sent me the converted file. I opened it. Where the redaction had been, the text was now readable. The entry was dated a few months ago. This is what it said:
Author: K. Loudamire.
Type: Microsoft Word file.
Title: Memorandum Regarding Marcum Incident, and Liability for Death in Extraterritorial Jurisdiction.
The next morning, I got up at the crack of dawn. I was exhilarated. Today was the day. At long last, we would learn what happened to David Marcum. Ashley was going to be at the deposition too, and I told her to meet me there.
I picked out a bold tie. It was pink with white stripes and an edgy texture. It set off my navy suit nicely. There would be no judge at the deposition, and I didn’t really care what Bock & Co. thought of me. I wanted to look young and sharp, and show some flair. Maybe I spent too much time thinking about my ties. But you’d be surprised at how lawyers agonize over neckwear, the only splash of color in an otherwise conformist wardrobe.
I ate breakfast, gathered my materials, and got ready to go. The deposition was set for 10:30.
Then, just as I was heading out the door, I got an email notification. An order from Judge Gleeson in the Marcum case. I put down my stuff and downloaded the order.
On this day came to be heard Rockweiller Industries, Inc’s Motion for Reconsideration. Having considered the arguments and the applicable law, the Court has determined that it requires further argument on the propriety of a pre-suit deposition. Accordingly, for the time being, the Court hereby GRANTS Rockweiller’s Motion for Reconsideration, and QUASHES the deposition of its corporate representative. The Court will hear further argument in one month’s time.
Jude Frank R. Gleeson.
NINE
I raged about it to Remington a few days later. “How can they just donate fifty thousand dollars and get their motion granted the next day? Is that how justice works around here?”
I was in Remington’s office, pacing around in agitation. Cindy and Harder were there too, sunk into two big leather chairs. They had never been in there before, and gazed around with interest at the bulging bookshelves and the antique hunting rifle slung up on the wall.
After Badden & Bock’s stunt with the Judge, Remington told Kruckemeyer that there was no point in “pussyfooting around” anymore, and that we ought to file the lawsuit. He also suggested that we staff up the case, which meant adding more associates. We would need it to handle the legal firepower that Badden & Bock would throw at us.
Kruckemeyer grumbled, but agreed. Because the case was on contingency, the firm was fronting the expenses until an eventual payout. This meant the money was coming out of Kruckemeyer and the other partners’ pockets, which he was not happy about.
I suggested adding Cindy, and Kruckemeyer suggested Harder, who I suspected didn’t have enough to do. Remington took them both. It was agreed that Remington would be lead counsel on the case, and Kruckemeyer would be the originating partner. That meant Remington would do most of the work, and Kruckemeyer would collect most of the money, which suited both of them.
“If I can just say, sir,” Harder had said to Remington when we first walked in, “I’m thrilled to have the opportunity to work with you. I’ve heard a lot of incredible things, and I’m pumped. Super pumped.” Harder had put on a suit and tie for the occasion. He’d even shined his shoes. Gunner.
Remington regarded Harder without comment for a few beats. Just as it started to get pleasantly awkward, Cindy broke the silence in in her guileless fashion.
“Jack may be ranting, but he has a point. I know that judicial donations are legal. But this one seems pretty blatant.” I frowned at her, taking exception to the word “ranting.”
Remington nodded. “It was pretty on the nose,” he agreed.
“I bet they were worried about what the corporate rep would say when I deposed him,” I said with a hint of bravado. Harder scoffed.
“Maybe,” Remington said neutrally. “But it doesn’t make a whole lot of sense. We’re going to get the deposition anyway. Once we file a lawsuit, we can depose anyone we want. The best this did was to delay it for several months.”
“But who pays fifty thousand dollars just to stall?” asked Cindy.
“Exactly,” said Remington. “And more importantly, what did they pay fifty thousand dollars to stall for? The only explanation I can think of is that there’s something time-sensitive going on here.”
“Like what?” Cindy asked.
“I don’t know. But I intend to find out.”
“What about the death memo?” I asked. I had told Remington about the privilege log, and the redacted entry Lyle had uncovered. I felt sure it was the smoking gun. “Is there a way we can get our hands on it? It may tell us everything we want to know.”
But Remington was not sanguine about the prospect. “I doubt it,” he said flatly. “We could challenge the privilege, but I don’t see us winning that fight.”
“Why? The memo obviously has relevant information,” I argued. “How can they withhold it? It doesn’t seem fair.”
“The law isn’t always fair,” Remington said patiently. “But there’s a purpose behind the attorney-client privilege. It gives people breathing room to talk to their lawyers. We balance the need for fair discovery of the facts with protections for lawyer-client advice. Imagine if you had to turn over all of your conversations with your lawyers. No one wo
uld ever talk to one again, lest anything they say be used against them. That would be no good.”
“Right,” I said sheepishly. I guess I had read that somewhere in law school.
“We’ll get the story anyway, Jack. They won’t be able to hide the witnesses. Or the facts. Just the legal advice. I know the memo has a sexy title and you want to read it. But we’re just going to have to do this the old-fashioned way.”
I nodded. “The old-fashioned way. Got it.”
Remington reached into his desk and pulled out a copper tin. He took something out of it and slipped it into his mouth. It was chewing tobacco, I noticed with a start. He put the tin back in the drawer and then steepled his hands in front of him on the desk.
“Now. The primary thing I am concerned about right now is Judge Gleeson. After this chicanery with the deposition, I don’t have a lot of confidence in him. And this may be a sign of worse to come. I don’t want to be fighting an uphill battle the whole case.” We nodded in agreement.
“We could file a motion for recusal,” Harder suggested. “Surely a donation this flagrant would get some traction. If we win, we can get him booted off the case. If we lose, at least we would preserve our objection for the record.” This was actually not a bad idea. I had thought about it myself.
But Remington shook his head. “No. We’re not going to do that. Going after the judge is a dangerous game. If we lose, he’ll be against us for the rest of the case. And the other judges won’t look kindly on us, no matter how good our reasons. So we’re going to try another tactic.”
“What tactic?”
“We’re going to file in federal court.”
Our eyes widened as we considered this idea.
Federal court was a whole different ballgame. Thus far, the case was in state court, like most cases are. The federal courts only hear cases about federal law, or big lawsuits involving people or companies from different states. They were designed to provide impartial hearings in those kinds of situations.
The Founding Fathers imagined that a company from, say, Pennsylvania, might get a raw deal from a jury in Virginia, who might prefer their own guy or gal to some big out-of-state corporation. As much as I’d like to think it’s different today, it isn’t. You get whip-smart trial lawyers stirring up juries against the evils of foreign corporations. They donate to the judges, who stay out of the way. I’ve learned the hard way that you can get hometowned in the twenty-first century just as hard as the eighteenth.
But federal courts are different. Federal judges serve for life. They can’t be removed except by impeachment, just like the President. This means that federal judges have no fear of election cycles or public opinion, and are free to rule as the law requires. They also tend to be better qualified, get paid more, and have law clerks to help them. All of this translates to better decisions. Or I thought so, anyway. Some people criticized federal judges as unelected rogue actors with too much power. Usually, those are the people on the losing end of the case.
Cindy looked puzzled. “I don’t understand,” she said. “How can we get into federal court? I thought they only hear cases about federal law, or between people from different states. We’re representing a Texas guy suing a Texas company.”
“We were,” said Remington. “Until something that Jack discovered.”
“Me?” I said.
“Yes, you. Tell me. What does the federal diversity jurisdiction statute say?” Remington asked. His voice took on a Socratic tone, like a law school professor’s.
Law schools traditionally used the Socratic method to teach law. This calls for a dialogue between teacher and student to stimulate critical thinking. I can’t say whether it did that or not. But it did make people pay attention in class. Law students were terrified of being called on by the professor, which happened at random. So they paid close attention to the reading, lest they be embarrassed in front of their peers. The Socratic method also helped accustom students to public speaking. It was tough, but effective.
“Uh. I didn’t bring my civil procedure book with me,” I hemmed. Harder took out his phone and started Googling.
Remington sighed. “Put that away. Twenty-eight U.S.C. Section thirteen-thirty-two grants federal courts ‘original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of seventy-five thousand dollars, exclusive of interest and costs,’ and is between ‘citizens of different States.’”
“You had that memorized?” said Cindy, surprised.
“I have read it many times. Now. What does ‘citizens of different states’ mean?”
“It means what it says,” Harder theorized. “You know. Citizens from…different states. Of the Union.”
“Nice one, Matlock,” I said.
“Shut up.”
“For federal jurisdictional purposes,” Remington said, ignoring our squabble, “a person is a citizen of a state if he or she resides there and evinces an intent to remain. Jack, what did you find out about where David Marcum lived?”
I screwed up my face, trying to figure out where he was going with this. “He grew up in Houston. He had an apartment in Montrose. Then he stopped paying the bills.”
“And where was he during the last year of his life?” Remington prompted.
“The last year…he was in Key West. He stayed at Aqua Ray…” It hit me. “Of course! He lived in Florida!”
“And if he’s a Florida resident,” said Cindy, snatching up my train of thought, “and Rockweiller is a Houston company, then it’s a civil action between citizens of different states. So we can get into federal court!”
Remington smiled broadly. “Exactly. There may be some other ways to get in too. But this ought to do the trick.”
Harder spoke up. “I hate to be a wet noodle, but wouldn’t we rather be in state court for this? That’s usually better for plaintiffs like us, right?”
“That’s a fair stereotype,” Remington agreed. “But in this case, we’re already at a disadvantage with Judge Gleeson. Badden & Bock won’t be able to bully a federal judge the same way. And a federal judge won’t put up with the type of nasty tactics I’d expect to see from them in this case. So in the long run, I think we’ll be better off. That’s also one reason I suggested we file the pre-suit deposition. We had a chance to see what judge we’d draw, and how that would play out. We did that. Now we get to do a little forum shopping.”
Our jaws dropped at this master-level strategy. “That’s brilliant!” said Cindy.
“That will depend what judge we draw in federal court,” Remington cautioned. “But I think almost any judge would be preferable to Judge Gleeson in this instance.”
“Excellent,” I said. Harder nodded in agreement.
“Good,” said Remington. “Now, here’s what I want you all to do. Write this down.” We took out our legal pads and stood ready.
“First, prepare the federal lawsuit,” he instructed. “I want to file this week. Rockweiller is trying to stall this thing, which means we want to ram it forward.
“Second, serve discovery requests. I want every email or scrap of paper that has anything to do with David Marcum. And I want deposition notices for anyone and everyone you can think of.” We jotted this down.
“Third,” Remington continued, “contact Marcum’s bank, his cell phone company, his internet service provider, etc. Get his records. If we have those, we’ll be able to follow the trail of his life from day-to-day. Maybe we can see where it stopped. Ashley should be able to get the records as executrix of the estate.” I wrote that down. I hadn’t thought of that. Genius.
“Fourth, prepare a motion to get the coins back from Rockweiller. We should be able to get them for inspection, if nothing else.
“Lastly, do some old-fashioned detective work. Call anyone you can think of who might know what happened to Marcum. His friends, past employers, acquainta
nces, girlfriends, anyone. Someone somewhere has got to know something, and I want to know what it is.”
“Got it,” I said, writing all of that down. “Anything else?”
“No. Go get it done.”
Cindy chattered excitedly as we left Remington’s office and headed back down to our floor.
“That was incredible!” she said. “He knows everything!”
“Seems like it,” I said.
“Should we sit down in the conference room and divvy this all up?” Harder suggested.
“Sure,” I said.
After a bathroom break, we set up in one of the smaller conference rooms. Harder and I waited in silence for a moment while Cindy got a cup of tea and a muffin. Presently, she sat down with her legal pad at the ready.
I started to speak, but Harder interrupted me. “Okay,” he began. “So here’s what I’m thinking. I’ll handle the depositions and prepare to question Rockweiller’s people. Cindy, you do the jurisdictional research and start drafting discovery requests. I’d also like to see a draft of the motion to get the coins for inspection.”
I looked at Harder incredulously, but he pretended not to notice. Cindy scribbled down his orders, but eyed me uncertainly. She was aware of the tension, even in her typically oblivious state.
“Jack, you draft the lawsuit,” Harder instructed. “You can also handle the background sleuthing. You know the case and the client best, so I think you’re the best bet for that important task. Meanwhile, I’ll put together a task list in a Google spreadsheet, so we can all edit—”
“Are you fucking serious?” I interrupted him.
“About the spreadsheet?” Harder said, as if he didn’t understand. “We can use a different program if you prefer. We don’t have to use Goo—”