Chapter 19
June 8, 2016
The day of Michael Constantine's deposition is sunny, breezy, and beautiful. I am in the office at 6:00 a.m. looking through hundreds of pages of documents and organizing my cross-examination for the tenth time.
At 8:00 a.m., Donna walks through my open door smiling. “Beautiful day to talk to an emperor,” she says. “Be sure and get under his skin for me, too.”
“Yeah? You're after this guy, huh?”
“Damned straight. Not only do I think he screwed Kevin over, I'm still harboring animosity about the days spent searching through a sea of documents in a warehouse.”
“That strategy was more Harris than Constantine. Besides, we did find something for the expert to examine, right?”
“That's true, and I'll enjoy the moment we get to spring it on these guys. You know, this is one of those cases where I really don't like the other side. I think Mrs. Walters has it right—kick them in the balls.” She smiles. “What can I do to help?”
“I need three copies of each of that remaining pile of exhibits. That should be all of them.”
“I'm on it,” she says, grabbing the stack and walking from the office.
The deposition is taking place in my firm's conference room—I get home-field advantage this time. The cherry wood conference table seats twelve and fills most of the room, with cupboards and a marble counter at one end of the room and a long, cherry wood lateral file at the other. Windows run the length of the conference room, making the videographer work hard to obtain correct lighting conditions for the camera. The conference room is comfortably roomy, but unlike Harris's conference room, it could not host the UN General Assembly in the off hours.
I sit in my chosen spot for taking depositions, looking at my notes and reviewing exhibits. I look up to see Donna escort Kevin into the conference room and stand to shake his hand. “Hi, Kevin. Take the seat next to me.” As he settles in, Harris and a tall man I know to be Constantine appear at the door.
Harris says, “Hello,” to no one in particular and sits down. What a dick. “Mr. Constantine?” I say, standing and extending a hand. He nods. “Scott Winslow,” I say.
“Yes, Mr. Winslow. I know who you are.” This is not a happy camper.
“Great,” I say. “Shall we get started?”
“What is your estimate for this deposition, Scott?” Harris asks, as if it were already too long for his liking.”
“Well,” I reply, “what day is it now?”
Again, Harris fails to appreciate my humor. He says, “Mr. Constantine has an appointment this afternoon at three o'clock that he must attend.”
“You never mentioned that when we were selecting agreed dates for depositions, or we would not have agreed to do this deposition today.”
There was quiet, and then Harris says, “Mr. Constantine is a busy man, and things come up.” I love it when some arrogant son of a bitch thinks his time is more important than everyone else's. I am sure my expression shows my displeasure.
“Well, if he must leave, then we will go until 2:30 and continue on another day. You should plan on two full days of deposition.”
“We will see if that is justified,” Harris says.
“Any way you want it, Bob. You can produce Mr. Constantine to finish his deposition, or we can ask the judge to order you to do so. Either way, this depo is not going to be over by midafternoon today.We are ready,” I say. The videographer announces the case name, the deposition of Michael Constantine, and the location. The court reporter gives Constantine the oath, and we are set.
“Ever had your deposition taken before, Mr. Constantine?”
“Yes.”
“How many times?”
“I'm not sure. Maybe six or eight.”
“How many of those depositions were on behalf of Consolidated?”
“All of them.”
“When was the last?”
“About two years ago.”
“In connection with what kind of a matter?”
“A contract dispute with an equipment provider.”
“What was the case name?”
“I don't recall.”
“Are you able to identity each of the cases in which you have testified on behalf of Consolidated?”
“Not now.”
“By looking at documents available to you, are you able to do so?”
“Yes.”
“Were you a defendant in any of these actions?”
“No.”
“You understand that you are testifying under oath, Mr. Constantine?”
“Yes.”
“Do you understand that the oath that you have been given is the same one that you would take in any court and subjects you to the same penalties of perjury?”
“I do.”
“Please answer verbally rather than with a nod or shake of your head, because the reporter is making a written record, and we want your testimony to be clear, agreed?”
“Yes.”
“If you don't know or don't recall the answer to a question, it is acceptable to say so. Understood?”
“Yes.”
“No one wants you to guess as to information you don't know. On the other hand, if you have a best estimate as to a date or time, or a general recollection as distinguished from a guess, I am entitled to that information.”
“Fine.”
“Any questions about this proceeding you would like to ask me or stop and ask your counsel before we go further?”
“No.”
“Since Mr. Walters's termination, have you discussed the conditions at the Ruston mine with any employee?”
“I object. Overbroad, seeking information not calculated to the discovery of admissible evidence, but you can answer,” Harris says.
“No. It was not an issue,” Constantine replies.
“How about at Wheeling? Did you discuss conditions there with anyone since Mr. Walters's termination?”
“Object. Overbroad, seeking information not calculated to the discovery of admissible evidence,” Harris states.
Constantine looks at Harris, who nods. “Yes, there were corrections needed there.”
“Who made the corrections?”
“I don't recall. A contractor.”
“What conditions existed that needed correcting?”
Harris chimes in with, “Lacks foundation, calls for speculation, improper opinion.”
“I don't know the specifics, just that there were some items that needed addressing, so we addressed them.”
I hear annoyance creeping into his response, which I like. When witnesses are pissed off, especially the arrogant ones, their testimony comes quickly and is not well considered. “Do you know any of the corrections that were made?”
“I might have at one point. I don't recall at this time.”
“Who was in charge of making the corrections internally?”
“Object, vague and ambiguous,” Harris says, finding his rhythm.
“Do you understand the question, sir?” I ask.
“Yes.”
“Well, I don't,” Harris says. “It's your deposition, so if you want to ask ambiguous questions, that's up to you.”
I smile. “Thanks, Bob, but two out of three of us understood that one.”
“Who was in charge of making the corrections internally?” I ask.
Constantine thinks a moment and then says, “One of the operations managers. I can't specifically say which one.”
“But you have documents from which you can obtain that information?”
“Yes.”
“What documents would you look at?” I ask.
“Well, letters and forms addressing the conditions will be signed or initialed by one of these managers. That will tell me who had been assigned.”
“Who have you personally instructed to keep you informed of any conditions that may pose a threat of injury?”
“I don't recall.”
“Is there anything written
that states that you are to be kept informed of conditions that may threaten serious injury?”
Constantine is now suppressing anger that his eyes give away. He clearly wants to be done with this, which is one of the reasons I am not done. He responds, “Not that I am aware of, no.”
“So there may be matters of great significance to the safety of your employees that you have never instructed managers that you need to be kept informed about, right?”
Harris chimes in. “Object, counsel. Asked and answered and argumentative. Don't answer the question.”
Now they are both pissed off, so I know we are on the right track. “Is that right, Mr. Constantine? That there may be matters that threaten injury or death that you never asked to be informed about?”
“Objection,” Harris says, louder. Asked and answered and argumentative. Don't an—”
But he is interrupted by Constantine. “No, that's not right.”
“Really?” I say. “How is that inaccurate?”
“Don't answer. Argumentative, asked and answered.” Harris says, now sounding pissed off.
I lean back in my chair. “You need to rethink that one, Bob. Mr. Constantine just told me that it is not accurate that there are conditions that threaten injury or death that he did not ask to be informed about. I think that I am entitled to know why that is so.”
“We are taking a break,” Harris says.
“Let's answer my pending question and then take a break,” I respond.
“No, we are taking a break now. Mr. Constantine, let's talk.” Harris walks out of the room and Constantine follows. I look at Kevin, who grins and says, “Wow, you really got under his skin.”
“Which one?” I ask.
“Both of them, but Mike is really angry. He's not used to having to answer to others.”
We take a short break and then return. We wait another fifteen minutes for Harris and Constantine to return. I tell Sheila, the court reporter, to make sure she identifies the length of all the breaks, because I may want to use that informationif they attempt to avoid returning for a second day.
Constantine and Harris take their seats. “Are we ready to resume?”
Harris grunts in the affirmative.
“Do you have the pending question in mind, Mr. Constantine?” I ask.
“Yes.”
“And your answer?”
“I do expect to learn if there are conditions that threaten health and safety, although I can't say how I communicated to people that they had to keep me informed.”
“But do you know that you did communicate that to your managers?” I ask.
“I don't know. We've had our procedures in place a long time.”
I watch his expression and ask, “Do you know what S&S violations are?”
He does not react, answering with a simple “Yes.”
“What are they?”
“Violations that present an immediate safety issue.”
“Does it also mean that they present an immediate risk of serious injury or illness?”
“Lacks foundation, calls for speculation,” Harris says.
“Yes, that is my understanding,” Constantine admits.
“In the twelve months before Mr. Walters's termination, were there S&S violations of record for Ruston or Wheeling?”
“Yes.”
“Which mine?”
“Wheeling.”
“Were there also S&S violations at Ruston?”
“Not that I am aware of.”
“Didn't Mr. Walters complain to you about dangerous conditions or violations at Ruston?”
“I really don't recall that,” Constantine says. I note that Kevin is looking directly at him, but Constantine does not look his way.
“It didn't happen, or you don't remember?” I ask.
“I said I don't recall,” the anger starting to emerge.
“Did Mr. Walters ever complain about dangerous conditions at either mine?”
“I don't recall that.”
“Did Mr. Walters complain about dangerous conditions at any Consolidated mine?”
“I don't think so.”
“But you aren't sure?”
“Object as argumentative. Don't answer further,” Harris says leaning toward me.
I glance at notes to make him aware I have documents to address what comes next, and then I ask, “Well, sir, didn't Mr. Walters complain about inadequate tunnel maintenance?”
“I don't recall.”
“Did he complain about failing substructures?”
“I don't recall,” Constantine says again.
“Did he complain about inadequate safety equipment?”
“I don't recall.”
“Did he complain about ventilation issues at any of the mines?”
“I don't recall that.”
“How often did you see Mr. Walters in the normal course of business?”
“It varied,” Constantine says.
“Between what and what?” I ask.
“Between daily and a couple of times a week depending on travel schedules.”
“And did the two of you speak on the phone as well?”
“Yes,” he says.
“Mr. Constantine, did Mr. Walters raise concerns about the need to make any mine comply with legal requirements?”
“I don't recall; I already told you that.”
“Did either Ruston or Wheeling have violations for unsafe conditions last year?”
“I believe there were some,” he acknowledges calmly.
“How did you learn that?”
“I can't recall specifically. It would have been in the course of normal reporting of information.”
“How often did you get such reporting on mine conditions?”
“I don't know.”
“Did either Ruston or Wheeling have twenty-two violations for unsafe conditions last year?”
“I don't recall the specific number.”
“How about an approximation?” I ask.
There is momentary quiet while he thinks, and then Constantine says, “I don't have one.”
“You recall which of the two mines had the greater number of violations?” I ask.
“No.”
“How many S&S violations?”
“I don't know.”
“To what conditions did the violations pertain?” I press.
“I don't know,” now suppressing annoyance.
“Did they include tunnel maintenance inadequacies?”
“I don't know,” he says.
“Did they include citations for equipment failures?”
“I don't know.”
“Did they include citations for ventilation issues?” I ask.
“I don't know,” he says again.
“Let's take a break,” Harris said, taking off his microphone and standing. He waves at Constantine, urging him to follow.
“Sure, this is a good time,” I offer.
Harris and Constantine go outside and disappear for about twenty-five minutes. My guess is that Constantine is probably pissed off and venting. We are all in our positions at the conference table when they return and take their seats.
“Ready?” I ask.
Harris nods, and the videographer announces the deposition, tape number, and time.
I next take Constantine through all the positions held by Kevin Walters and the duties. I then have him acknowledge each of the positive evaluations that Kevin received, his bonuses, and his promotions based on excellent performance reflected in his evaluations. Constantine has no choice but to concede each of these facts.
Then I address Kevin's termination. “Mr. Constantine, why was Mr. Walters fired?”
“I was not happy with his performance,” he says, ready for this one.
“For how long a period were you dissatisfied with his performance?”
“I'd say the last year.”
“Didn't you compliment him on the job he was doing about two months before his termination?”
“Did you compliment him on the job he was doing in front of others within the last two months of his employment?”
“I don't recall that.”
“Well, you wouldn't have done it, right? You already told me that you did not compliment him in those last two months, so you couldn't have done so in front of others—is that right?”
“Object. Vague and ambiguous and argumentative.”
“I guess that's right, yes,” Constantine answers.
“Did Consolidated give executive bonuses in the last year of Mr. Walters's employment?”
“Yes.”
“And the executive bonuses were based on what?”
“They were based on how well the company was doing.”
“Anything else?” I ask, suppressing a smile.
“Not that I can think of.”
“Well, were they performance based?”
“No.”
“So every executive at the same level got the same amount?”
“No.”
“What accounts for some getting more than others?”
“Their rank and role within the company.”
“Now, there were two others of Mr. Walters's rank, right?”
He visibly squirms in his seat. He knows where this goes. “Mr. Walters got appreciably more of a bonus than both, didn't he?”
[2017] The Whistleblower Onslaught Page 15