[2017] The Whistleblower Onslaught

by David P. Warren

  When I return to the office for long enough to focus on my depressingly full inbox, my mood changes. At the top is Consolidated Energy's response to my Request to Produce Documents in Kevin Walters's case. All twenty-nine categories of documents requested were objected to as burdensome and oppressive, irrelevant, violative of the attorney-client and attorney work product privileges, and several other objections aimed at keeping us from the Consolidated files. My request for documents pertained to Kevin's duties, background, performance, complaints regarding company activities, and the reasons for his termination. According to Bob Harris, all were irrelevant, and not a single document had been produced. We were about to do this the hard way, and I wasn't at all surprised.

  * * *

  When I first received the Answer to the Walters lawsuit with Bob Harris's name on it, I knew that the battle would not be pleasant. I have dealt with Harris before, and this classic attempt at a stiff-arm was exactly the reason for my unease. Harris is a senior partner in a law firm of two hundred lawyers and countless staff; his minions are sent scurrying to do his will as he attempts to overpower plaintiff's lawyers with vast sets of document requests, interrogatories and requests for admission, and then set the deposition of most everyone who had known the plaintiff since birth. There was no such thing as too much work to heap on the other side and no such thing as too little cooperation for Harris's scorched earth philosophy. Bob Harris made Doug Ferguson look like Mother Theresa.

  I pick up the phone and dial Harris's direct dial number.

  “Robert Harris,” comes the response.

  “Bob, Scott Winslow here.”

  “What can I do for you, Scott?”

  “Well, you can produce the documents I requested, for starters,” I say impatiently. “I waited a month for documents and got nothing.”

  “You'll have to fix the problems with your requests if you want anything produced; you know that,” he says, as if trying to be as condescending as possible.

  “Perhaps you can explain to me why documents pertaining to the reasons for Mr. Walters's termination are not relevant. I don't think the judge will have much trouble seeing the relevance.”

  My law partner, Bill Simmons, walks through the open door to my office carrying two beers and hands me one of them. It looks great, so I take a swig while I wait for Harris to respond.

  “Your requests were too broad, too many, and too burdensome to deal with. If you want to narrow them—a lot, maybe we can do something for you.”

  “That's it?” I ask, wearily.

  “Yeah, that's it,” Harris responds confidently.

  “Okay,” I say. “I guess we know where we stand. Tomorrow I will send you a letter telling you all the reasons your objections are not well-taken. If we don't make significant progress, I will file my motion to compel responses seeking attorney's fees for being put to the trouble.”

  “Fine,” Harris said in a controlled voice. “Do what you have to do,” he retorts, and the line goes dead.

  “Good-bye, Bob,” I offer to a dial tone. “Always nice catching up.”

  Bill grins widely at this exchange, and I motion to him to pull up a chair. I tell him about the day at Linda Darnell's trial and the surprise settlement. The beer we share tastes great.

  “And for your reward,” he says grinning, “enjoy Bob Harris on the Walters case.”

  “Yep, and to top it off, Carswell as the judge.”

  Bill starts to laugh, much too amused by all of this. “Well, look at it this way. At least you got one more satisfied client before you were cast into the ninth circle of hell.”

  “And that is encouraging in some way I can't see?”

  Bill shakes his head. “You remember that Harris was my opposing counsel on Johnston v. Markham Hotels?” I nod and wait. Bill continues, “He's a smart guy, but everything is a dick-waving contest. He'll make a big fight out of the smallest discovery disputes—he just never learned to pick his fights so he fights everything. He doesn't seem to care so long as he inflicts a little pain.”

  “I'm with you,” I say. “Works well with the fact that he bills by the hour.”

  “Amen, to that. The son of a bitch really billed the Johnston case into the ground.”

  I drain my beer and hold up the bottle. “Thanks. Now I'm good for a couple more hours.”

  “My pleasure” he says, grinning. “Good nutrition is important.”

  * * *

  March 27, 2016

  The rotund bailiff with the nameplate that said Wilcox stood and cried “All rise,” as the judge emerges from his chambers wearing his flowing black robe and strolls to the bench. Carswell sits and looks unhappily at the files in front of him, as Jerry the bailiff stares over the heads of the spectators in the courtroom and calls out, “Department 39 of the Superior Court for the State of California, County of Los Angeles, is now in session, the Honorable William B. Carswell presiding.” Wilcox, who looks bored during his announcement, sits down as if winded after a hard day's work.

  “You may be seated,” Carswell says, and then adds, “Case number one on today's docket, Walters vs. Consolidated Energy; Plaintiff's Motion to Compel Further Responses to Request to Produce Documents.”

  I approach the counsel table, where a sign read “Plaintiff,” and remain standing while Robert Harris stands at the defense table. We stare at the judge and await his attention. When he looks up, I say, “Scott Winslow for Mr. Walters, Your Honor.”

  The judge looks to the defense table. “Robert Harris for Consolidated, Your Honor.”

  Carswell looks at me and then at Harris, as if he were sizing us up to determine who was going to be the bigger annoyance. “Mr. Winslow,” he said, sounding as if he had made that decision. “You may begin.”

  “Thank you, Your Honor. We have requested that the defendant deliver documents that are not only relevant, but central to the issues in this action, and we have received across the board, and I believe frivolous, objections.” Carswell's eyes were locked on me as I continued. “Twenty-nine categories of documents sought, all relevant to Mr. Walters's performance, the reason for his termination, his complaints regarding illegal activities and the mining operations specifically involved in this case. This is not a fishing trip, Your Honor; every item is specifically related to the allegations of this case.

  “Every one of these Requests to Produce seeks documents that may tend to prove facts placed in issue by the allegations of the complaint, including the alleged unlawful conduct of Consolidated, Mr. Walters's complaints about safety issues, and the resultant termination or the affirmative defenses raised by defendant in the Answer to the Complaint.”

  He nods, and then turns his attention to Harris and waits. Harris shakes his head to show his annoyance and then begins: “Your Honor, counsel is seeking volumes of documents here, many of which are not relevant to this action.”

  Carswell frowns. “I'm looking at the list, Counsel; tell me what's not relevant.”

  “Everything except the reasons for the termination is irrelevant.”

  The judge looks my way, and I do not hesitate to jump in.

  “We obviously have a different belief about the reason for the termination. Mr. Walters's complaints of illegal conduct by the company are at the heart of this action, but they will obviously not be tagged by the company as the reasons for the termination. Likewise, Mr. Walters's history of positive performance, raises, bonuses, and accolades are relevant to the credibility of the company's purported reason for the termination.”

  Carswell is nodding again. He looks at Harris. “So when you say only the reasons for the termination are relevant, Mr. Harris, do you mean your reasons or his?” Carswell says, looking at me.

  “The reasons,” Harris said quickly, emphasizing the “the” and sounding dangerously close to condescending. I like that because I knew Carswell will not.

  “As in, 'take our word for it,' right?” the judge asks.

  “It's not a subjective thing. If we have do
cuments that address the termination, those would be relevant.”

  “How about documents that pertain to the reasons the complaint alleges for the termination? Do you dispute he is entitled to discovery on those issues?”

  “Yes, Your Honor. This is fantasy land. If it doesn't actually pertain to the reasons for the termination, then he is attempting to go fishing through proprietary documents.”

  Carswell's brow furrows, and it is clear that he is not impressed.

  “And how many of the documents that pertain to any reason for the termination have you produced so far?”

  “Until plaintiff properly narrows the requests, we don't know what documents he is entitled to.”

  The judge looks at me. “Anything else to add, Mr. Winslow?”

  “No, Your Honor,” I say earnestly, having long ago learned when to stop talking.

  “Okay, gentlemen, the court finds that full and complete responses to each of the twenty-nine categories of documents are required within fifteen days of today. Also, defendant's failure to produce any documents is without substantial justification, and defendant is ordered to pay attorneys' fees to plaintiff in the amount of $2,000 for time expended in making this motion.”

  “Thank you, Your Honor,” I say, solemnly.

  Harris snatches up his materials and strides over to the court reporter, handing her a business card and making a show of requesting that a transcript of the hearing be prepared so that he can take a writ, which we both know is not something an appellate court will grant except in extreme circumstances.

  I do my best to suppress a grin, enjoying how pissed off Harris is and confident that the Court of Appeal will not grant a writ so that this guy can stiff me on discovery he owes. I chalk it up as a triumphant morning and a good way to set the stage for the Walters litigation.

  A week later, having heard nothing from Robert Harris, I expect to be served with the writ. Instead, I get a phone call from Harris.

  “Scott, I wanted to take that writ, but in the spirit of cooperation, my client is going to make the documents available to you.”

  Now I am on my guard. When a lawyer like Harris tells you that he is going to do something in the spirit of cooperation, you can be assured that K-Y Jelly will be required at some point during the process. “I see,” I offer, without enthusiasm.

  Harris takes this as his signal to push onward. “Anytime you want during the next five days, you can view all the documents at the company's Los Angeles warehouse, and,” he says, emphasizing the and to make sure that I understand the extremes to which he and his client are going to help me out, “we will make copies for you at a nominal charge right there at the warehouse.”

  “Uh-huh, and what quantity of materials are we talking about?” I ask, my skepticism peaking.

  “I'm told there are a couple of hundred boxes of documents,” he retorts, and then there is silence.

  Even Judge Carswell would make him dig the responsive documents out and deliver them. This “if you can't get away with giving them nothing, drown them in everything” strategy is bullshit, and I am about to tell him so. I open my mouth to speak, but I have second thoughts.

  “Where is the warehouse?” I ask, and jot down the address. It occurs to me that while Harris thought he was getting away with something, there was no way that he had taken the time to go through two hundred boxes, so I might just find something helpful. “I and my paralegal will be there for as much time as we need. I assume you will arrange with your client to let us in?”

  “Yes,” Harris says, “not a problem.”

  I hang up the phone and buzz Donna. “How did it go?” are her first words.

  “I'm not sure. One of us probably got screwed. Make a note to ask me who next week. You and I are going to the Consolidated Distribution Center to search through two hundred or so boxes of documents.”

  There was a momentary silence, and then she says, “Want to hear my guess as to who got screwed?”

  “Never mind,” I say, “this may turn into something.” But I know that she is probably right. I think I know who got screwed, too.

  April 18, 2016

  We meet in the parking lot and are escorted into the warehouse at eight in the morning. We are taken down two long corridors and into a massive, windowless room, filled with boxes. It is daunting.

  “Are you kidding?” Donna asks, as she scans the seemingly endless rows of storage boxes.

  “I'm afraid not. Where shall we start?” I ask, trying to muster some enthusiasm.

  “How about Hawaii?” she replies.

  I walk to the closest of the boxes and open it up. There is nowhere to sit, so we stand in the aisles and begin to review one box after another. By noon we have been through eighteen boxes. Only four contained anything relevant. When we are asked to leave at 6:00 p.m., we have been through thirty-eight boxes. I copy only fifty documents that may be marginally relevant. I have 162 boxes to go, and I am annoyed. Somewhere this evening, Harris is having a real belly laugh at my expense.

  The next morning, I get smarter and call Kevin Walters. He meets us at the warehouse at eight o'clock. It occurs to me that Consolidated might resist letting him in the warehouse, terminated employees being persona non-grata, and in the corporate mind-set, apt to steal, pillage and plunder, so I call Harris, and have him authorize it with his client. There are too many documents, and I need help at getting through them. I also need interpretation of some of the more technical energy documents before I can decide whether they have any relevance. Kevin has the expertise I need, and he doesn't hesitate to jump right in.

  During the next two days, we spend thirty hours making our way through 112 boxes, and we find nothing worth reading. It is Friday afternoon at four thirty, and we are blurry-eyed and feeling down. The day's take was a total of eighteen pages marginally worth copying and of dubious value. The real giggles come when I call the office at three o'clock and pick up a message from Bob Harris that my client's personnel documents were not in any of these boxes. They had been left behind and would be mailed next week. Harris is such an asshole. Anyway, an hour and a half later, finding a whole lot of nothing and entirely out of gas, Kevin and Donna are still digging but looking exhausted. As I watch, Kevin pulls the top off another box, notes its number on the yellow pad he carries with him and begins to sort.

  “You guys ready to call this a night?” I ask.

  Donna nods vigorously. “Yeah, I'm about to go nuts looking at requisitions and invoices that, as far as I can see, have nothing to do with Kevin.”

  “Don't remind me,” I say. My hopes of finding anything of worth were long gone, and I was feeling properly had by Bob Harris. We are searching through voluminous documents that had no more to do with Kevin than the fact that purchasing was under his chain of command: purchasing orders for office supplies, fuel, digging equipment, and everything else a big company can buy. I thought of Harris, enjoying every moment of his revenge for his loss of the motion. He had me looking at every requisition and invoice for shovels, laundry, and paper clips he could line up. “Kevin, you good to get out of here?” I ask.

  He is holding a document and nodding, but suddenly stops, and his expression changes to shock. “Scott,” he says, his eyes fixed on the page, “I have something.”

  Chapter 5

  As I drive home too fast in some vain hope of making up for lost time, I check my watch every couple of minutes, finding that nine thirty has passed, and ten o'clock is getting closer with each glance. A familiar feeling of guilt overtakes me as I think about having missed another night with Lisa and the kids. I need a different job or, maybe, a little more self-discipline. I recognize that no one ever regretted not having worked more when they got to their deathbed. I know that the kids are growing up too fast, and one day they will want to be with friends, and then they'll want to go on dates, and then they will move out, and they will have families with colds, soccer, school open houses. Then they will have more difficulty finding the time to com
e home to visit than I have getting home on time now. I really know all of this, so why haven't I fixed it? Good thing the question is rhetorical because I have no damn clue.

  As I walk from the garage into the kitchen, the house is quiet and dark. There is faint illumination I recognize as coming from the family room; time to see what kind of a mood Lisa is in. As I walk through the door of the family room, she looks up from the recliner where she sits sewing and gives me that killer smile that melted me the first time I ever saw it. It still takes my breath away.

  “Did you have a rough one?” she asks, earnestly awaiting my response. She's not even a little pissed off, which makes me feel even guiltier.

  “Yeah, pretty crazy,” I say, and then I get to what I need to say. “I'm sorry to be so late again. I really hate missing time with you and the kids.”

  “I know you do,” she says, standing. She gives me a kiss. “You have a whole lot happening these days, and we know it. The kids and I are all right.”

  “Thank you,” I say lamely. “What are you working on?” I ask, indicating her sewing. “I thought with all these late hours that we were earning enough to avoid having to make our own clothes.”

  “I'm making a costume for Katy,” she says. With her serious voice aimed at making sure I pay attention, she adds, “Her play is Wednesday night at six thirty. The last thing she said as I tucked her in was to remind Daddy to be there.” I smile like an idiot. It is truly amazing what even secondhand comments from little girls do to their daddies. “It's so cute,” Lisa says. “The whole class is going to be fruits and vegetables.”

  “Really?”

  She nods, “They are reading about food supply, nature and … Well, they're not calling it that, but ecosystems. But you didn't hear all this from me. Katy wants you to be surprised by what they're doing when you come to the play.”

  “I will be,” I say, with the same stupid grin on my face, as I consider what a cute fruit or vegetable Katy will be.