by Joseph Hayes
Jake looked sheepish. “I feel like a schmuck. You got me bragging about myself, and now I look like an idiot. I guess I misinterpreted your question. I—”
“No you didn't, Jake. You gave me an honest answer to a very straightforward question. It's similar to what most people would say, although their accomplishments would pale next to yours. The only point I was trying to make is that I'm different than you, and different than a lot of other people. If I change directions with my career, I need to find something that allows me to be who I am, something that's consistent with my priorities.”
Jake smiled ruefully. “Suddenly, my career path doesn't seem very meaningful. Sometimes I wonder how much value lawyers like me really contribute to our society.”
“No offense, but I've often wondered the same thing. Think of all the talented, energetic people in your profession. They spend most of their time fighting each other. I can't help thinking that the world would be better off if all that brainpower and energy were directed toward something constructive—science, medicine, education – anything, other than court-condoned combat.”
“You're probably right,” Jake mused. He stared thoughtfully at his beer for a few moments. “Can I change my answer to your question? The thing that makes me most proud and happy about my life is that I was able to convince Amanda Chang to marry me.”
“Amen, brother. You’re one lucky son of a bitch, and so am I. Here's to Amanda and Corey.” They raised their glasses and drank. As he did so, Jake noticed Danny Flynn stumbling in their direction.
“Hi Danny,” Jake said, trying to sound casual and relieved to see that Flynn was just walking past them on his way to the men's room.
“Piss off, McShane. Both of you,” Flynn snarled without changing his pace. A few minutes later, he emerged from the restroom and was standing before them. He looked terrible. He'd aged ten years since Jake had seen him last. “Stay away from my wife, McShane, you hear me?” Flynn said, glaring at Johnny and slurring badly.
Jake tensed immediately, but Johnny seemed completely relaxed. “I think you’ve got that backwards, Danny boy,” Johnny said. “She's not your wife anymore. She's divorcing you. And she's got a restraining order against you—you're the one that needs to stay away.”
Jake tensed. In high school, Danny Flynn had been one of the toughest guys around. He'd been the muscle-bound football player who never backed down from a fight, and instigated plenty of them. He was overweight and out of shape now, but old habits die hard, Jake thought. It wouldn't take much to set this guy off, particularly in his highly inebriated state.
Danny scowled and pointed his finger at Johnny, swaying badly from side to side as he did so. “You stay away from her, McShane. Stay away if you know what's good for you or I swear you’ll regret it.” Malice emanated from the bloodshot eyes. “Stay away from my wife!” He glared for another moment and staggered away.
Jake breathed a sigh of relief. “You're in a delicate situation, Johnny. Be careful.”
“I can handle it,” Johnny replied with cool confidence.
Jake eyed his cousin nervously. “I hope so.”
CHAPTER 37
USH was a company under siege. It faced challenges on all fronts. The media was relentless in its portrayal of the company as the new poster child for corporate greed and corruption. Patients were outraged. Admissions had dropped significantly in the months since the lawsuit was filed, as patients were gun-shy about getting cheated. Revenues were dropping fast, which was causing the stock price to plummet, sending investors heading for the exits. Regulators were now investigating to determine whether federal or state laws had been violated. All of this was causing serious morale issues among the company's employees, who were forced to listen to scathing criticism of their employer and its leadership from their friends and neighbors, as well as the media.
Damage control was the immediate mission. Senior management and legal counsel collaborated to develop a strategy to minimize the legal exposures and business fallout. The company's auditors were instructed to begin the massive effort of reviewing every bill generated over the past three years, and comparing each bill to the patient's records in an effort to identify any discrepancies. Where overcharges were identified, refund checks would be sent immediately to the patient. For those patients who did not care to wait while that process was being carried out, the company had established a customer response center that could be contacted through a toll-free phone number or through the Internet. Those customers could have their file reviewed promptly by an independent auditing firm retained solely for that purpose, and again, if any overcharge was identified, the customer would receive a prompt refund, with interest. In cases where a billing error worked in the customer's favor, USH chose not to make any attempts to recover the shortfall, because of the risk of compounding the negative customer relations problem.
Through this process, the company hoped to demonstrate to its clientele, the regulators, the media, and ultimately, the court, that it was taking proactive measures to do the right thing by its customers. From a legal perspective, the hope was that exposure to monetary damages in the lawsuit would be significantly reduced. Patients who were made whole arguably had no claim left to litigate. At least that was the theory. Plaintiffs’ counsel was working hard to convince patients not to accept those refunds, telling them that the court could award substantial punitive damages, thereby enhancing their recovery potential.
The lawsuit had been mired in the muck of class action discovery for eighteen months now. The case was document-intensive, and complying with the plaintiffs’ discovery requests was proving to be a monumental undertaking. USH was required to produce every patient invoice for the past three years, along with every patient file having any activity during that time period. That amounted to literally millions of records. To make matters worse, the records were not housed in a central location. Many of the facilities that had been acquired in recent years had not yet gotten around to transmitting their billing records to the corporate headquarters in Chicago. The files documenting a patient's treatment were typically kept at the location that had provided the services.
Largely because the records were so widely dispersed, USH and its attorneys had dodged a bullet at the outset of discovery. No documents had been destroyed by the time the e-mail bearing Paul LaDuke's name had come to the legal team’s attention. By acting quickly, they had been able to rescind the destruction order and avert a major calamity. The incident was still a disaster in some respects, although not nearly of the magnitude it could have been. The Chicago Tribune had run a story about the document destruction order, which was another very public black eye for the company, as well as its law firm. The judge refrained from imposing sanctions upon receipt of a sworn affidavit from Paul LaDuke stating that no documents had been destroyed, that Samuelson & Reid had not recommended any such destruction, and that he had not transmitted the e-mail in question. Nevertheless, Judge Trainor had clearly become hostile and skeptical toward USH and its case, and made it abundantly clear that the slightest irregularities in connection with the discovery process would be dealt with severely.
For that reason, Jake took no chances. He enlisted the assistance of a dozen associates at the firm and an army of paralegals to help gather and review all of the documentation USH was required to produce. They had to ensure that they had acquired from every USH facility all patient files having any activity during the past three years. Then they had to review all of those records to determine what was relevant and responsive to the plaintiffs’ discovery request. It was a hopelessly impossible task, since there were millions of pages of documents to be produced. To avoid any risk that they could be accused of withholding evidence, Jake's instructions to his team were “when in doubt, produce it.”
Jake had argued vigorously that the plaintiffs’ discovery request should be limited to a period of one year prior to the filing of the lawsuit, since all of the named plaintiffs were treated within that time per
iod. Anything beyond that was purely speculation, he argued, and given the enormous time, effort and money it would take to comply, such a fishing expedition was not warranted. Rick had pushed for a much longer discovery period – six years. He argued that there was a high likelihood that the billing problems had existed for a considerable period of time, and that only through a thorough examination of the relevant records could that be determined with any degree of certainty. The judge compromised, deciding on a three-year time period, and stated that he would consider expanding it if that discovery confirmed problems throughout that extended period. More significantly, he had certified the case as a class action and ruled that the class would include all patients who had used any USH facility during that three-year period whose bills were inaccurate.
From Jake’s perspective, this exercise was a glaring example of the inefficiencies and wastefulness of the American litigation system. The end result was that USH produced truckloads of documents. The time and effort required to locate all of the necessary documents, transmit them to the legal team, have them reviewed and catalogued by the attorneys, photocopied, boxed and shipped to the plaintiffs, was mind-boggling. It cost USH millions of dollars just to complete this exercise. Jake knew that the plaintiffs’ counsel would not even bother to look at most of these documents. They already had the evidence to prove that billing problems existed, and in fact, USH had agreed to stipulate to that. The real point of the exercise, Jake knew, was to harass his client and force it to spend enormous sums of money. It was the plaintiffs’ hope that, as the costs of litigation mounted, USH would be more favorably inclined to stop the bleeding by agreeing to an exorbitant settlement.
Nevertheless, USH and its attorneys had no choice but to comply, and after eighteen months and two extensions to the discovery deadline reluctantly granted by Judge Trainor, the effort had been completed. The parties had been summoned to court for a status conference. Jake expected it to be a routine hearing to set the trial date, finalize the witness lists and schedule the remaining depositions. As the hearing commenced, the judge confirmed that agenda and indicated that he was pleased that the document discovery had finally been completed. Before he could go on, Rick interrupted.
“I’m sorry to have to say this, Your Honor, but there are some issues regarding the document production that I must bring to your attention.”
“What kind of issues?” The judge was clearly irritated.
“Your Honor, we have serious questions about whether the defendant has complied in good faith with our discovery requests. It appears that relevant information is being withheld. We have just begun a review of the documents provided, and we have already identified some very troubling deficiencies. I have three invoices here that came to me directly from other sources. All of them appear to contain billing errors and not one of these was produced in defendant’s discovery. And that’s just for one location – Evergreen Memorial in Boulder, Colorado. Lord knows how much more of this we’ll find as we review the remaining documents. I should also mention that these invoices relate to services performed two and three years ago. I am therefore renewing my request that the class period be expanded to six years, and that defendants be ordered to produce for that entire period the documents identified in our original discovery request – all of them.” He stared pointedly at Jake.
Jake was stunned. He had not expected this.
“What about this, counsel?” the judge demanded sharply, looking at Jake.
“Your Honor, to my knowledge, we’ve produced everything in our possession that was requested,” Jake replied. “Several truckloads of documents have been produced. Perhaps plaintiffs’ counsel overlooked these particular invoices. I can’t imagine that they have had time to thoroughly review the thousands of files that have been produced.”
The judge looked at Rick. “Your Honor, the boxes are clearly labeled and a complete index has been provided,” said Rick. “We have located all of the boxes pertaining to this particular facility and reviewed every scrap of paper in those boxes. I assure you, these invoices are not there.”
Judge Trainor looked exasperated. “Mr. McShane, I assume you kept a log of what was provided to the plaintiffs?”
“Yes, Your Honor.”
“Then I suggest you review that log very carefully. I want to know by the close of business today whether these invoices were produced. If they were not, you’ve got serious problems. I will expand the class period to six years, and I will impose sanctions against you and your firm. Do I make myself clear?”
“Yes, Your Honor”.
As they went through the remainder of the judge’s original agenda, Jake tried hard to focus, but his head was spinning as he groped for explanations. How could this have happened? Who had reviewed the Boulder documents? Had he missed any obvious categories of documents when they made their requests of the staff? Had a box or a file been misplaced? He needed answers, and he needed them fast.
Jake’s investigation brought him neither comfort nor answers. The bills that were produced in court were in the files in the USH billing department, exactly where they should be, but they were not included in the discovery log. There was no evidence to confirm that those invoices had been produced. Jake spoke with litigation team members who handled that portion of the document production. They explained their procedure. They had taken the file drawer in question in its entirety. They were adamant that every invoice in the file had been copied, logged, boxed and sent to Samuelson & Reid for final review. The legal assistant who reviewed the files for the hospital in question insisted that she removed no documents whatsoever from those boxes. According to Jake’s team, every invoice in the file drawer in question was copied and sent to the plaintiffs. The only explanation his team could come up with was the possibility that the three invoices in question had been temporarily removed from the file drawer prior to the photocopying. The USH employees who had access to those files could provide no reason why that would have been the case, since the invoices in question were old and inactive.
Judge Trainor made good on his harsh promise. He ruled that the class period was expanded to six years, and gave USH just sixty days to supplement its document production to cover the expanded period. During that time period, the parties were to complete any remaining depositions. USH was to produce a report to the court, to be signed by its general counsel as well as its outside law firm, summarizing the procedures they followed in their effort to comply with the plaintiffs’ document request, and explaining to the court why it should believe that the results of that effort were thorough and reliable. In addition, Judge Trainor issued sanctions against Samuelson & Reid, which included a formal reprimand entered into the record of the proceedings and a $20,000 fine.
Demetrius was livid when Jake reported in by cell phone from the courthouse. He demanded that Jake report to his office immediately. The tall Greek was standing in his office doorway fuming when Jake arrived. He ushered Jake into his office and slammed the door.
“I can’t tell you how upsetting this is,” he shouted. “This firm has been sanctioned by a federal judge. I won’t have it! It’s completely unacceptable! As a representative of this firm, you are accountable! How could this happen?”
Jake explained the efforts he had undertaken earlier that day to get answers, and that no good answers were forthcoming. He began to explain in detail the process his team had gone through to ensure that their document production was thorough and reliable, but Demetrius cut him off.
“I don’t care to hear the details of your process!” Demetrius shouted as he paced angrily about his office. “Whatever process you followed, it was your responsibility for overseeing it and ensuring it worked. Obviously, it broke down!”
“I’m not convinced that it broke down, Demetrius.”
That stopped him in his tracks. “What is that supposed to mean?”
“You once said that you don’t believe in coincidences. Neither do I. Think about it. We produced millions of pages
of documents. Within three days, Black shows up with three invoices that allegedly were not provided to him. Where did he get those invoices? Out of the millions of documents, what caused him to check those three so quickly? And it just so happens that each of those invoices contains an obvious error in the hospital’s favor. While we know that there were many cases involving inadvertent overcharging, the majority of the bills are accurate and there are also plenty of cases where the customer was undercharged. What are the odds that all of this is just coincidence? Remember Paul’s e-mail? They have help on the inside; I’m convinced of it.”
Demetrius paused for a moment. He took a step toward Jake and pointed a finger at his chest. “I don’t want to hear excuses, and I’m not interested in some phantom insider. If there is such a person, find him! Whether there is or not, this discovery response was botched. As a result, the class period has been expanded, and our client will spend another fortune on additional discovery. On top of that, our firm has been sanctioned, on your watch! I suggest you think hard about your approach to your work and whether you have what it takes to represent this firm.” He opened the door for Jake, signaling an end to the meeting. “Consider this a potentially career limiting development.”
CHAPTER 38
Randy Kraft walked into the Art Institute of Chicago around noon. With the aid of a museum map, he made his way to the American Artists wing. There were few visitors, and he easily spotted Rick Black in front of Grant Wood’s American Gothic, just where he said he would be.
“This has always been one of my favorite paintings,” Rick said casually, as Randy sidled up next to him, nervously glancing around to see whether anyone was watching them.
“Why do we have to meet here?” Randy asked. “What if someone sees us?”
“Relax, Randy,” Rick whispered. Then, in a slightly louder voice, he pointed at the couple in the painting and said, “Did you know that this couple never actually posed together? In fact, they were never even a couple. The woman model was the artist’s sister and the man was his dentist.” He continued in a quieter voice, “I can't have you visiting my office, or calling. Remember that you are not a client of mine, not yet anyway, and it’s very important that you keep that in mind and act accordingly. So what's on your mind?”