“It was on the subpoenas,” I tell the judge.
“One lawyer at a time,” says Gilcrest. “Who’s going to argue this, you or Mr. Hinds?”
Harry looks at me and shrugs his shoulders. We are on an equal footing, both of us equally ignorant and blinded by the lack of notice or an opportunity to read Sims’s papers.
“I will, Your Honor. Mr. Sims was notified as to the date to produce the items requested. It was set forth on the subpoenas.”
“What about that?” says Gilcrest.
“We were told that the parties extended the deadline,” says Sims. “We were told of the extension but we were given no extended date for production.” Sims looks over at me and smiles.
“Your Honor, may I have a moment?” I lean over toward Harry.
“Templeton’s secretary told me they’d notify Isotenics,” Harry whispers.
“Did they confirm it in writing?”
Harry shakes his head, shrugs a shoulder. He doesn’t know, but if Harry can’t remember seeing one, chances are they didn’t.
“I’m told, Your Honor, that the people, through Mr. Templeton’s secretary, assured us that they would notify Isotenics as to the extended date for production of documents.”
Sims turns to look down at Templeton in the chair behind him. Templeton raises two empty hands, open palms up toward the ceiling. “That’s news to me. I don’t know anything about it,” he says.
“So apparently nobody notified the company?” says the judge.
“Apparently,” says Templeton.
“I don’t remember signing any order shortening time,” says Gilcrest.
“You didn’t, Your Honor. You were out of town. We had to go to the presiding judge,” says Sims.
They have sandbagged us. Gilcrest knows it—you can see it in his eyes—but for the moment there is nothing he can do. “Very well. You may proceed.”
Sims steps up to the wooden rostrum, situated just in front of and between the two counsel tables in the center of the courtroom. “Your Honor, as you know, the victim in this case was the chief executive officer and chairperson of the board of directors of my client company Isotenics. In those capacities she was privy to extensive amounts of vital information relating to commercial and proprietary trade information belonging to the company. Many of the documents that she prepared and the correspondence that she sent and received included sensitive corporate information. This information, should it fall into the hands of business competitors, would place Isotenics at a serious disadvantage. It is conceivable that disclosure of some of this information would allow competitors not only in this country but abroad to take unfair competitive advantage that might very well destroy the company economically. Because the disclosure of this information would in many cases result in the loss of valuable trade secrets that could be exploited by competitors—which in turn would cause irreparable injury to my client—we are requesting not only that the items subpoenaed by the defense and listed on our schedule be quashed, but that the court issue a preliminary injunction precluding the defense or any of its agents or attorneys from making inquiries or conducting investigations that might invade these areas. We are asking that Mr. Madriani and his associates be kept away and precluded from contacting employees, officers, or agents of Isotenics, Incorporated.”
“Your Honor”—I am on my feet—“I’ve never heard of such a thing. Isotenics is where the victim worked. It is entirely possible, and highly probable, that her interest in the company and her activities at work led to her death.”
“Mr. Madriani, you’ll have an opportunity. You’ll get your chance.” Gilcrest motions me to sit.
Sims then launches into a twenty-minute lecture on the law of business secrets. To listen to him, not since the Medicis ruled Florence has the world of commerce and trade been so threatened by commercial intrigues. According to Sims, it is necessary that virtually every scrap of paper that the victim touched be guarded by an impenetrable wall of secrecy until it can be scrutinized by lawyers and software wizards inside the company. He cites the Uniform Trade Secrets Act. Gilcrest sits attentively and listens as Sims tells him about conclaves of lawyers and lawmakers convening in councils like cardinals in the High Middle Ages, not to hammer out religious dogma enshrined in papal bulls, but to lay down laws in the form of treaties to protect the formula for Coca-Cola and the recipe for Hershey’s Kisses, sacred processes that form the root and stock of multinational corporate fortunes.
Sims then makes the leap. He hoists the defense of trade secrets to cover Chapman’s e-mails, everything sent and received as well as all hard-copy correspondence and internal company memos regarding IFS and the Primis software system. He uses the argument of trade secrets like a shield, trying to push us away, to keep us at bay while Templeton gets at our innards with his short sword from underneath.
“The IFS project and the software that underlies it,” says Sims, “are the economic cornerstone of Isotenics. Mr. Madriani would ransack internal memoranda of the company on a wild-goose chase, the result of which would be to ruin my client’s company.” Sims then makes an offer of proof. He tells the court that he has two witnesses.
Gilcrest waves him on.
Sims calls Victor Havlitz to the stand.
Havlitz has been locked out and sitting on a hard bench in the outer corridor. The bailiff has to unlock the door and call his name.
Not being a party to the proceedings, Havlitz has no legal right to be here other than to testify if he is called. He has ended up on both our witness list and the prosecution’s. As a result, he will be excluded from the guilt-or-innocence phase of the trial in which the name of his company is likely to figure prominently in daily news accounts. For a guy like Havlitz, whose anxiety level is taut as goat gut strung on a violin, waiting to hear the news each day is likely to kill him.
Havlitz is sworn and takes the stand.
Sims moves quickly through the preliminaries.
“To your knowledge, has an effort been made,” says Sims, “to identify and to produce those portions or items of the subpoenaed materials that would not violate the confidentiality requirements of your company or result in the disclosure of trade secrets?”
This has all been well scripted. Havlitz launches into detail, telling the judge that he supervised this process personally. To listen to him talk, Isotenics wore out at least one machine copying pages that were delivered to our office. At one point Havlitz pulls a slip of paper from the pocket of his suit coat and tells the judge that, in all, they copied 1,214 pages that were delivered to our office.
What he doesn’t say is that many of these were copied four or five times and that nearly all of them were documents that had previously been published in corporate reports, materials prepared for the unwashed shareholders and mailed to them or handed out at their annual meetings. If the company were in bankruptcy, its assets had fallen through a crack into hell and burned, and if all of the directors were under indictment for fraud, you would never read about any of it in the pages turned over by Havlitz. In the original, most of these would have been four-color and glossy. One of them showed Havlitz’s smiling face peering out like a flimflam man when I flipped the first stapled page. In all the copied pages, there was nothing about pissing contests and shouting matches on the phone between Chapman and Gerald Satz, not even in the footnotes.
“With regard to the other items,” says Sims, “the materials you deemed confidential. Did these items involve information or data of a sensitive commercial nature concerning proprietary trade matters?” Sims recites the magic words as if they were sacred script. If it would do any good to brace his argument, he would shake a bag of freeze-dried bones in front of the witness to complete the hex on our case—lord high legal shaman.
“They did,” says Havlitz.
“And in your opinion, as the chief executive of Isotenics, would public disclosure or the risk of public disclosure of these materials cause damage to your company that would result in i
rreparable injury?”
“Absolutely, without question,” says Havlitz.
“Your witness,” says Sims.
Templeton is smiling through all of this, the chance to stick a pike through the heart of our case without even moving his lips. He is taking up half a wooden chair from the row behind the prosecution table just inside the railing. This time he is using one of the courtroom’s metal waste cans turned upside down to rest his feet so they don’t dangle in midair from the platform of the chair. Today he has wound Sims up like a coiled spring and turned him loose in court to see what kind of havoc he can wreak in our case.
I stand with a single sheet of paper in my hand. “Mr. Havlitz, you say you read all of the subpoenas.”
“That’s right.”
“Do you remember one of the subpoenas that included among the items being sought”—I look down and read from the page—“any telephone directory or list of that company known as Isotenics, Incorporated, that includes the names, telephone numbers, or extensions of employees, officers, or agents of said company?”
“I think I recall it,” he says.
“Do you remember whether you produced such a document?”
“I, ah … I don’t think we did.”
“Do you consider a company telephone directory to be a trade secret?”
He looks down at the floor, shrugs a shoulder, then looks at Sims.
“Objection: calls for a legal conclusion,” says Sims.
“The witness testified that he supervised the process to determine which documents were produced and which were not. Surely he must have exercised some standard in making that determination?”
“He did so only with the assistance of counsel,” says Sims.
“So is counsel now testifying, Your Honor? If so, I would ask that he be sworn and take the stand.”
Havlitz speaks up before the judge can rule on Sims’s objection. “I had the help of lawyers.”
“Too many people talking at once,” says Gilcrest. “The witness can answer the question.”
I put the question to the witness: “So what was the standard that you applied?”
“I … I don’t remember. It was written down. But we tried to be fair.”
“I’ll bet. Was the prosecutor, Mr. Templeton, involved in this process? Did you confer with him?”
“I, ah …” He looks at Sims for help. The lawyer would raise attorney-client privilege, but Templeton is outside the umbrella. Instead, Sims pores through a stack of papers in front of him until he finds the stapled sets he wants. “Your Honor, as a matter of fact, the company’s telephone list does qualify for trade-secret protection. Isotenics has guarded the contents of its internal phone directory for proprietary reasons. While the general telephone number of the company is listed, the individual extensions for divisions and specific employees of Isotenics are not. I have a case in point,” says Sims. He hands one copy to the bailiff for the judge and the other to me. “In this case,” he continues, “the court held that where the company compiled its internal directory, maintained it in confidence, and where the disclosure of names, phone numbers, and divisions or job descriptions included employees who were in the possession of legally protected trade secrets, the telephone list itself was a protected item. And in answer to Mr. Madriani’s question, the court lays out in detail the standard to be applied in determining the existence of trade secrets.”
Gilcrest is nodding. “Yes, I see that in the headnotes,” says the judge.
“Your Honor, we’ve had no time to look at any of this. The motion by Isotenics and its lawyers has been sprung on us like a trap. The witness has not answered my question. Did he or his lawyers confer with Mr. Templeton or anyone else from the prosecution in determining what documents to release and what documents not to release?”
“You can answer the question,” says Gilcrest.
“There were some conversations,” says Havlitz. “Meetings. I was present only at one of them.”
“But your lawyers met and talked to Mr. Templeton, isn’t that correct?”
“Objection. Anything conveyed by counsel to the witness as a representative of the client corporation is privileged information,” says Sims. It may be privileged, but he has just admitted to it.
I may have shown Templeton digging this pit with Sims and Isotenics, but the fact remains that we’ve fallen into it. The company phone directory is not a significant piece of evidence for us, but it is a bad example because of the case in point that Sims is able to put in front of the judge.
“I get the point, Mr. Madriani.” Still, Gilcrest is distracted, reading the case. On the eve of the trial, there is no easy way out. He will have to make a decision on whether to open the door on the company’s records, and if so, how far. The troubled expression from the bench as he reads says it for him—judge on the horns of a dilemma.
Ordinarily a court would have no difficulty balancing the equities—the right to a fair trail, a man’s life—against property interests. But here, Gilcrest is a man from Mars in a field of law that is foreign, and the property interests at issue could be worth hundreds of millions if not billions of dollars. Wearing black robes does not immunize a person from worry. The judge has to wonder. If Havlitz and his lawyers are correct and the court makes the wrong decision, if as a result a competitor takes trade secrets and uses them to crush Isotenics, there is no appeal to a higher court that can undo the damage. Sam Gilcrest may be defense oriented, but he is not oblivious to the fact that Isotenics is one of the largest employers in the county and a huge corporate taxpayer.
For the moment I would rather defer a decision than get a bad one on tactics that go to the heart of our case.
“Your Honor, perhaps there’s some middle ground,” I say.
Gilcrest looks up at me over the top of the decision he is still reading at the bench. “I’d be thankful for any suggestions,” he says.
Sims cuts me off before I can negotiate. “Your Honor, if Mr. Madriani is finished with the witness, I have one more before the court makes its ruling.”
“Mr. Madriani, do you have any more questions of this witness?”
“No, Your Honor.” Not knowing what other trip wires and grenades lie hidden in the pile of papers in front of Sims, I don’t dare ask about other documents they have declined to turn over. All I need is another mind-bending appellate opinion for Gilcrest to get lost forever in the dark forests of business law.
“Call your other witness.” The judge is still busy turning pages, trying to glean the exact dimension of trade secrets from between the printed lines. He motions to his bailiff to let Havlitz out and to buttonhole the other witness outside on the bench.
I am turned in my chair toward the doors at the back of the courtroom when she enters. Karen Rogan’s eyes fall on me for an instant before she fixes her gaze down at the floor. She purses her lips in a kind of pained expression of nervousness. Clutching a small handbag to her side, she looks at me again, but only for a fleeting second after she is sworn and seated on the stand.
“State your name for the record,” says Sims.
“Karen Rogan.” Her voice cracks as she spells her last name for the court reporter.
“You work at Isotenics, is that correct?
“Yes.”
“For how long?”
“Twe-twelve years,” she says.
“And what position do you hold?”
“My title is executive assistant.”
“And so that we can save the court some time, you worked as personal assistant to Madelyn Chapman, the victim in this case, isn’t that true?”
“Yes.”
“And you’ve met Mr. Ruiz, the defendant.” Sims points to Emiliano at the table.
“Yes, we’ve met. When he was working, providing security at Isotenics.”
It is clear that Rogan doesn’t want to be here. Unless I miss my guess, this is not just the usual nervous witness. Even with Sims moving between us at the podium, cutting off my v
iew of the stand from time to time, the obvious avoidance of eye contact by Rogan makes it clear that she is being used to drop a rock on us.
“Would it be safe to assume that in that capacity you would have been privy to a good deal of confidential information that passed through you to Ms. Chapman and that some of that information would have included what are described as company trade secrets owned by your employer, Isotenics, Incorporated?”
“Objection, Your Honor. The term trade secret as used by Mr. Sims is a legal term of art. I’m not sure that Ms. Rogan is qualified to answer the question.”
“I withdraw the question,” says Sims. “Isn’t it true, Ms. Rogan, that a good deal of the information that passed through your hands on its way to Ms. Chapman was confidential?”
“I suppose.”
“So confidential, in fact, that some of this information regarding defense contracts is considered highly classified by the Department of Defense, is it not?”
“Yes.”
“And in that regard, isn’t it a fact that you were required to undergo a background check in order to obtain a security clearance from the government in order to be employed in your position?”
“Yes.”
“Did you prepare written correspondence for Ms. Chapman as part of your job?”
“Sometimes.”
“Did you open her mail and deliver it to her?”
“Yes.”
“From time to time, did you look at e-mail that was posted to her on the computer in her office, in order to respond to it on her behalf?”
“Yes. When I was asked to.”
“And did you place phone calls for her and receive incoming calls that were directed to Ms. Chapman as part of your job?”
“Yes.”
“So, to the extent that information coming to Ms. Chapman in any of these forms might have included confidential company information, that information would have passed through your hands, isn’t that correct?”
“Usually. Not always. There were some matters that Ms. Chapman handled personally.”
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