The Girl From Kathmandu

by Cam Simpson

  Matthew Handley returned from his leave in the summer of 2012 in shock at the state of affairs that had developed in the case. What had been a relatively professional adversarial proceeding, in which both sides had been fairly civil while still upholding their duties to their clients, had degenerated into something just shy of warfare. Handley reintroduced himself to KBR’s defense team with a friendly “Hello, I’m back,” as if he were ironing out a seemingly straightforward matter in the case, only to receive a brusque reply from Billy Donley, in essence: With all due respect, Matt, you have no idea what’s been going on here in the last year. Donley was emerging as the lead KBR lawyer attempting to portray the company as the true victim in the case, a drum he beat ceaselessly following the Jamie Leigh Jones verdict. If Michael Mengis was the Southern gentleman of KBR’s defense team, and David Rivkin was its conservative intellectual firebrand, then Donley was its Texas street fighter, at least as far as the plaintiffs were concerned; he had largely made his name working for automobile makers in legal battles against their own franchised car dealerships. Fryszman and Handley got the distinct impression from their dealings with Donley that taking on car salesmen must have been a tough, sometimes bare-knuckle business for a Texas lawyer.

  Near the end of the summer, KBR filed what is known as a motion for summary judgment. Lawyers can spend months preparing a summary judgment motion, which offers a defendant in a federal lawsuit its last significant chance to keep the case away from a jury. Mengis’s name was first on the filing, and he clearly had taken the lead. When all the exhibits and attachments were included, it reached more than eight hundred pages. The company asked Ellison to find that none of the evidence and pleadings to date showed any genuine issue of material fact for a jury to weigh—that the case was meritless and that Ellison had to give a verdict in favor of KBR. The company’s lawyers hammered away at the weaknesses in Buddi Gurung’s story, and took the inspector general’s report from 2006, which had confirmed that the twelve men were in KBR’s human supply chain, and turned it against the families. The report said there were no clauses “in contracts between [the U.S. government and] KBR Halliburton that make them responsible for labor fraudulently procured by independent contractors or subcontractors.” KBR now claimed that this conclusion, based on contract language rather than the law, meant the company was free from liability. “The plaintiffs and their counsel based their grave allegations of human rights abuses by KBR on newspaper articles and a government report that cleared KBR of any wrongdoing. And now, after years of discovery and great expense to KBR, the plaintiffs still lack the evidence necessary to establish genuine issues of material fact as to the existence of essential elements of their claims against KBR.”

  Under the law, Fryszman and her team now had to go much further than they did when they beat back KBR’s initial motion to dismiss the lawsuit in the first big hearing in the case. To survive they had to show that Kamala’s lawsuit was built on more than “conclusional allegations, unsubstantiated assertions, or only a scintilla of evidence.” In some ways, KBR had jumped the gun; a motion such as this usually comes after the discovery deadline expires, but KBR’s lawyers didn’t wait. In so doing, they put Fryszman’s team under significant pressure.

  Fearing that her entire case hung in the balance—which it did—Fryszman now saw precisely what KBR’s strategy had been. By refusing to budge on any additional discovery for more than a year, the company had filed a motion to kill her case while simultaneously blocking her from obtaining the evidence she needed to prove it. Now she had to fight off KBR’s motion for summary judgment at the same time that she would have to meet the company’s own outstanding discovery requests to her side. Indeed, KBR sought four hundred documents, answers to sixteen hundred written deposition-style questions for Kamala and the other Nepali family members, and answers to more than five thousand yes/no questions for the Nepalis, which KBR’s lawyers knew would require Fryszman to fly to Nepal to facilitate while trying to respond to its motion to kill the case. She had not yet taken even a single deposition of a single KBR employee, because in order to prepare her questions, she needed documents that she believed KBR had not yet provided. She told Judge Ellison that the company had refused to search even for documents containing the name “Daoud,” despite how basic the relationship between the two companies was to fundamental issues in the case. She urged Ellison to give her at least a few more weeks, although even that might not be long enough.

  Increasingly, Fryszman also was alone in the battle. Handley had been back at the firm only a short time when he received an offer for another job: chief litigator for the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. It would mean giving up on the lawsuit, and taking a significant cut in earnings, but given how much his experiences in the compensation case had changed his priorities, Handley didn’t hesitate to accept the post.

  Under the gun, Fryszman pressed Molly McOwen to dedicate even more ceaseless hours to the case as the pair pushed to meet their deadline to answer the motion for summary judgment. McOwen and her fiancé were to be married in the same window of time, and they proceeded with the wedding, but there would be no honeymoon as McOwen drove toward the finish. After Buddi Gurung’s troubled performance in Los Angeles, Fryszman pressed Ganesh Gurung in Nepal to redouble his efforts to find more men who had been in Jordan with the twelve, a seemingly impossible task. She also was trying to bring Kamala and four other witnesses to Washington to sit for cross-examination by lawyers from KBR and Daoud, an effort that was turning into its own logistical nightmare. Shortly after the company’s surprise summary judgment filing but before the discovery deadline, Fryszman also handed over to KBR’s lawyers additional documents, including translations of what McOwen had collected during her vacation in Nepal. This included the moving letter from Prakash Adhikari to his parents, which had arrived in their village five days after they had burned an effigy of their murdered son. The letter was no secret, as excerpts had been included in the Tribune series about the men seven years earlier. In it, the young Prakash had done everything he possibly could to avoid worrying his family, and had also mentioned that he had attempted to call the local dalal from whom the family had bought the job, but the agent had not responded. Prakash gave no explanation for his need to reach the dalal, but he did write, in a matter-of-fact way, that soon he would head into Iraq after being “in Jordan for a month without work.” He also wrote, “I have realized that life is like a flowing stream. Until yesterday I was in Nepal. Now I am in a foreign land. Why? Who knows? Maybe it’s the times, or the situation, or maybe I had no choice.”

  After Fryszman turned over her copy of the translation of the letter before the discovery deadline, Donley almost immediately accused her of misconduct for withholding crucial evidence that he claimed exonerated the company, saying the letter proved definitively that Adhikari and the rest of the twelve men held in Jordan for forty-five days were actually eagerly anticipating their work in Iraq, that they had been well treated, and that Adhikari was even grateful to the relative who had encouraged him to seek work overseas. In phone calls with Fryszman and her team, Donley began threatening to file formal misconduct charges against Fryszman, McOwen, Handley, and almost every other lawyer who had thus far participated in the case on behalf of Kamala and the other family members. The threat of misconduct got deeply under McOwen’s skin, and she began to wilt under the pressure. In calmer moments, she almost considered it a badge of honor to be accused of misconduct by a company such as KBR, and accused along with some of the finest human rights lawyers working anywhere in the United States. But when she found herself up against extraordinary deadlines in their effort to keep the case alive—for Kamala and other women from Nepal who had wept before her eyes and implored her for help—she also found herself questioning virtually every document she signed in the case and every move she made, fearing her career could be affected for the rest of her life.

  Judge Ellison allowed Fryszman and
her team the extra time they had requested to file their response to KBR’s summary judgment motion, but by then, the damage had been done, personally, if not legally. When McOwen got home late one night to the apartment she shared with Cook in Washington, she sat on the edge of her bed and told her new husband that she felt she was circling the edges of a nervous breakdown. With a heavy heart for the families in Nepal, she decided to quit the firm.

  As Fryszman prepared to meet the deadline to respond to KBR’s summary judgment motion, she was informed by its lawyers that they were formalizing misconduct charges against her and the other lawyers who had assisted her in the case, even Handley and McOwen, despite the fact that they were no longer involved. When the written charges followed in early February, they covered nearly five hundred pages, including all the attachments and exhibits, and rehashed many of the same arguments the company had been making for four years. The difference now was that KBR’s lawyers had completed their transformation of the company into the victim in the litigation, and personally attacked the attorneys for the families, accusing Fryszman and the other lawyers of manufacturing human rights charges based on nothing more than newspaper stories. Not surprisingly, Billy Donley was the lead lawyer in the effort, and his signature came first. Rivkin had also signed it. Noticeably absent was Michael Mengis, and this seemed to suggest an unspoken acknowledgment of how low the defense had sunk and how much the company itself was dictating the strategy against the counsel of at least one prominent member of the firm it had hired. Mark Lowes, a KBR vice president who was the in-house chief of litigation for the company, added his name to the motion, further signaling the company’s direct sanctioning of the effort. Perhaps most brazen of all was that the petition accusing Fryszman and her team of misconduct sought attorneys’ fees while the case was still pending, and while Kamala and the other families still might win. It claimed that KBR had spent more than five million dollars defending itself against this “frivolous” lawsuit. At least in the Jamie Leigh Jones case, KBR had waited until after it won a jury verdict before trying to recover costs and fees.

  At a minimum, the attack held the potential to serve as a massive distraction for Fryszman from the existential fight she had at hand: trying to prove for Judge Ellison, once and for all, that the case belonged in front of a jury, something KBR seemed desperate to avoid. When the misconduct charges landed at her office she also was preparing to bring Kamala and four other witnesses from Nepal to Washington, where they would face interrogation from KBR and Daoud in depositions. Kamala and the other family members, some barely literate, most having barely ever left rural Nepal, none ever having even been on an airplane, would be under direct fire, just as Buddi Gurung had been in Los Angeles. With his deposition used as a weapon against Fryszman in both the effort to dismiss her case and the misconduct petition, it seemed she had everything to lose from this exercise and virtually nothing to gain—as did Kamala and the other families.

  14

  February and March 2013

  Washington, DC

  Building heights in Washington, DC, are strictly regulated, yielding a skyline where nothing rises more dramatically than the U.S. Capitol at the end of Pennsylvania Avenue. The effect is a curtsy to the ideals of American democracy: nothing is above the people’s assembly—not the White House, not an embassy, not a corporate tower. The political realities beneath these visual strictures may be different now, but the zoning laws haven’t changed, meaning that architects in modern Washington have a limited bag of tools with which to work, so they lean heavily on the city’s historic character: neoclassical structures, Georgian Revivals, and the like. Although located in the middle of the city, the Washington Plaza Hotel is as far removed from this historic aesthetic as possible, resembling an early 1960s vision for the future of Miami, managing to be both retro and modern thanks to a nine-story facade that is glass and beachfront white, and to long curved corridors owing to a boomerang-shaped footprint; hoteliers in the nation’s capital need to make up the floor space they lose in height through length and width. Although they may have seen some faux-classical, Empire-inspired buildings in Kathmandu, Kamala and the five other travelers from Nepal had never seen anything like the Washington Plaza, a fact that added to their sense of being in foreign, unfamiliar, and imposing surroundings. But the initial visual shock after the long ride into the city from Washington Dulles International Airport on the morning of February 18, 2013, was mild compared with what they were about to experience.

  Joining Kamala were four men from four other families, three fathers and one brother. A young woman from Ganesh Gurung’s office named Reena Gurung (no relation), a trained Nepalese lawyer who spoke English, came along as a sort of logistics manager and chaperone. She had made small placards in English to help the four men on the trip request water or whatever else they might need. Kamala was more self-sufficient, and she watched Bollywood films and listened to music during the air legs of their nearly two-day journey via Dubai, but she was anxious about being away from Kritika for the first time. She felt nauseated, and was unsure whether it was the air travel, her worrying about her daughter, her nervousness about what was ahead for them in Washington, or something she had eaten that was gnawing at her stomach.

  After a day of settling in, the family members spent a week preparing for their depositions. Assisting Fryszman was a human rights lawyer from New York she had recruited named Anthony DiCaprio. Preparing witnesses is an arduous task, even when the client isn’t from a farming village on the other side of the world. But for the Nepalis, the challenges extended well beyond their total lack of familiarity with legal proceedings, the English language, and even the food they were served in Washington, which was as radically different for them as Nepalese food would be for an American staying at a farmhouse in the foothills of the Himalayas. The basics were plain enough, as the witnesses learned everything from sitting upright, to making sure they carefully understood each question before answering, to thinking carefully about their answers before speaking, to answering only the question before them and saying nothing more, to expressing themselves in the shortest and clearest way possible. Other challenges were more deeply and culturally ingrained. Many Nepalis, especially those from rural areas, tend to be extremely deferential to anyone who seems to represent or hold authority, so the witnesses had to grasp that the lawyers from KBR and Daoud had no power over them, nor any benevolent intentions, even if their voices were soft and their manners kindly. Those lawyers, the Nepalis were made to understand now, would try to get them to volunteer information that could be used against them in the case, and they most certainly would ask questions that would upset them and stir up the darkest moments of their families’ lives.

  DiCaprio perhaps slightly overplayed his role as the tough guy during mock sessions, mainly because Fryszman was expecting the family members to face Billy Donley, whom the plaintiffs’ team had come to see as KBR’s enforcer. DiCaprio had thick dark hair and a graying beard and was built like a fireplug, possessing a strength beneath his kindness that gave Kamala reassurance and a sense of calm, even as he told her in their practice sessions to imagine him as the most horrible man she had ever known, a man intent on breaking her down. Over several days, and with DiCaprio’s help, Kamala’s confidence grew, even though at times she found herself overcome by the dual emotional forces weighing on her during the trip: that she was away from Kritika for the first time and that each practice session, by design, dredged up all her sadness, not just about having lost Jeet, but about everything else that had come before and after the moment captured in the video footage, which was now seared into her mind. Of all the witnesses, though, Kamala might have needed the least amount of persuading when it came to seeing the attorneys for KBR and Daoud as adversaries, given her fully formed rebellious streak, from defending herself as a young girl to whipping stones at trees so she could pilfer fruit for herself and Kritika at the ashram.

  Adjusting to American food wasn’t easy for any of
the Nepalis, but Kamala politely ate every hot dog she was offered, while the men gravitated toward instant noodles they had stocked up on at a local convenience store. Before long, they discovered Indian takeout. Reena Gurung did her best to fill their hours with diversions designed to leaven their days, including leading walks through Washington and even a trip to the Smithsonian’s National Air and Space Museum. Yet homesickness and worry were constant companions inside the rooms they shared, two by two, at the Washington Plaza Hotel, especially for Kamala. She called Kritika at least once every day, first straight from the hotel phone, but later through store-bought calling cards after the hotel staff alerted the Nepalis to the potentially massive bill. The men were fascinated by the seemingly limitless options on the hotel’s giant televisions, and inadvertently purchased almost every pay-per-view movie on offer without actually watching any of them, ringing up a string of room charges reaching into the thousands of dollars. The hotel’s managers had a good laugh and forgave the charges.

  If Kamala and the rest of the Nepalis were overwhelmed by their surroundings, Fryszman’s own stress levels soared beyond what she had experienced in any other case, so much so that she could measure them on the bathroom scale at her home in leafy northwest Washington. Worry and stress had cost Fryszman fifteen pounds. Kamala would be the last of the Nepalis to sit for a deposition, and while she was under fire, Cohen Milstein would have just one week left to answer KBR’s misconduct petition. The firm hired outside counsel to assist with its defense against the charges, and spent more than two hundred thousand dollars to try to quell the KBR offensive. When she assessed matters in a purely intellectual and dispassionate way, Fryszman knew she had little to fear. Judge Ellison was an inherently fair and careful jurist. She felt secure in the evidence she had amassed in the case, although, like all driven and slightly manic lawyers, she wanted more. She also knew it was outrageous for KBR to argue, essentially, that she had no evidence with which to sue the company. In some of her worst moments of doubt, she would seek reassurance from her husband, a prominent civil rights lawyer named Stuart Ishimaru. He helped her see through the fog of war, and the assurance of another experienced attorney that everything was going to be okay boosted Fryszman during her most difficult moments. Still, the nagging fear that her case and her career could be derailed by all this was, at a minimum, a slightly terrifying and ever-present possibility.