Just Dreams (Brooks Sisters Dreams Series Book 1) (17 page)

Kathy stood behind the counsel’s table on the right hand side of Judge McCarthy’s courtroom and tried to organize her thoughts.  Erin sat next to her. Charles sat next to Erin. 

The courtroom was packed – standing room only.  Reporters and attorneys filled the gallery and the jury box and lined the back of the courtroom.  The noise level was so high the bailiff threatened to clear the courtroom twice even though Judge McCarthy had not yet taken the bench.  Kathy felt curious eyes staring at her.  She tried to ignore them.  Someone, presumably Weisman’s office or Peachtree, had leaked information to the press concerning the Bar complaint.  The story had run in that morning’s newspapers.

Kathy was used to public speaking; however, she was not used to having her sins displayed for all the world to see.  She was what her sisters described as “under cover.”  She took a deep breath and ordered herself to focus.  She could only fight one battle at a time.

The meeting with the general counsel of the firm had not gone well. He had insisted that the only viable course of action was for the firm to withdraw from the case.  He was known for being ultra-conservative when it came to taking risks and patronizing toward female attorneys.  It galled Kathy to no end that, by getting herself into this mess, she’d given his attitude even an ounce of validation.               

Judge McCarthy entered the courtroom, moved swiftly to the bench and took her seat.

“All rise,” called the bailiff.

The chattering in the courtroom ceased.

Judge McCarthy waved a hand.  “Please be seated.” 

Those who had seats sat down.  Kathy and Weisman remained standing.  The Judge looked at them.  “Please state your appearances.”

“Kathy Brooks and Erin Carter from Gold Rome & Harris on behalf of the plaintiff, Charles Morgan,” Kathy said.  She gestured with an outstretched arm toward Charles.

“Stewart Weisman on behalf of the defendants,” Weisman said.

“We’re here today on three motions – a motion for sanctions, a motion to compel and a motion to withdraw,” Judge McCarthy said.

“Yes, your honor,” Kathy said. 

“Alright, let’s deal with the motion to withdraw first,” the judge said.  “What’s the basis for the motion?”

“Your honor,” Kathy said, “as we state in the motion papers, an ethical complaint has been filed against me, personally, in connection with my law firm’s representation of Mr. Morgan.  Under these circumstances, we think it best, for all parties involved, that Gold Rome & Harris withdraw as counsel of record for the plaintiff and that he be given thirty days in which to obtain new counsel and bring them up to speed in this case.”

Judge McCarthy turned to Weisman.  “Do Defendants have any objection to the motion?”

“Yes we do, your honor,” Weisman said.  “We object most strenuously to the motion and request that it be denied.  This case is set for trial which is scheduled to take place in three months.  The parties have already identified witnesses, set up a schedule for taking depositions and developed their strategies for the case. In his motion, Mr. Tyler seeks a stay of the proceedings for thirty days to hire new counsel and bring them up to speed.  New counsel will mean new strategies, new theories, and, most likely, a need to postpone the trial to explore and implement them.  My clients need to have this case behind them so that they can get on with the very important work of national security.  They shouldn’t have to suffer delay just because Ms. Brooks had a lapse in judgment and decided to hop into the sack with her client.”

The courtroom erupted.  Spectators chattered amongst themselves.  Reporters frantically scribbled notes.  As the voices rose to a crescendo, Kathy realized that her jaw had gone slack.  She glanced over at Erin and saw that she wore a similar expression.  

Judge McCarthy banged her gavel.  “Order!  Order in the Court!  If I don’t have silence right now, I will clear this courtroom!” 

The courtroom grew silent. 

Kathy, who was now in full battle mode, ignored the stares of the spectators and got down to business.  “This is precisely the sort of hoopla and negative attention the plaintiff seeks to avoid.  It will only serve to act to his detriment.”

Judge McCarthy sat there for a moment considering their arguments.  “The motion to withdraw is denied.  Trial of this case is set to take place in twelve weeks and I will not entertain any motions to postpone it.  My docket is quite full already.  The remainder of the courtroom proceedings in this case will, however, be held in a closed courtroom.  That should address the plaintiff’s concerns with respect to hoopla and negative attention.”

Kathy glanced over at Charles and noticed that he was glaring at Weisman. She caught Erin’s eye and inclined her head toward Charles.  Erin got the message.  She tapped Charles on the shoulder and said something to him when he turned to look at her.  He turned his chair slightly toward her and away from Weisman. 

Kathy looked at Weisman.  She wanted so badly to wipe that smug expression off his face.  She turned her attention back to the judge who was already moving on to the next motion.

“Next, I’ll hear the motion for sanctions,” she said.

“Yes,” Weisman said.   “Your honor entered a confidentiality order in this case forbidding the parties from disclosing confidential documents produced in discovery to third parties.  In reliance upon that order, Peachtree Consulting produced tens of thousands of confidential documents – fifty boxes in fact – to counsel for the plaintiff.  Yesterday, an article appeared in the Miami Herald specifically referring to some of the confidential documents Peachtree Consulting produced in this case.  Those documents include Defendant Thomas Wilkes’ employment records, travel records, expense reports and other reports authored by him.  The reporter who wrote the article attended the same high school as the plaintiff.  They even served as reporters on the high school newspaper together.  It’s clear that Mr. Morgan was the source of the documents referred to in the article and that he violated this Court’s confidentiality order.”

Judge McCarthy aimed stern looks at Kathy and Charles. “The plaintiff’s response?”

“Your honor, there are a number of problems with Defendants’ motion for sanctions.  First,” Kathy said, using her right index finger to count the arguments off on the fingers of her left hand, “the defendants have not met their burden of proof with respect to the motion.  It is based solely upon conjecture.  No affidavits have been submitted in which a single witness testifies that my client is the reporter’s source for the article or that he provided her with any documents whatsoever, much less documents covered by the confidentiality order in this case.  Moreover, the article doesn’t contain a single quote from Mr. Morgan.  The fact that he and the reporter knew each other in high school, twenty years ago, is not probative of anything.” 

Kathy moved on to her next finger.  “Second, the newspaper article refers to documents Peachtree never produced in this case – specifically, the incident reports authored by Defendant Wilkes which contain the fax number traced by the reporter to the Central Intelligence Agency.  Defendants’ failure to produce these documents, which are clearly responsive to Plaintiff’s document requests, is one of the grounds for Plaintiff’s motion to compel which is also before the Court this morning.  Under these circumstances, Defendants’ motion for sanctions should be denied.”

Kathy stepped back and glanced at Erin to see if she had left anything out of her argument.  Both Erin and Charles smiled at her.  Erin gave her a thumbs-up sign.

Weisman stepped forward.  “Your honor, if I may make a very brief response.”

Judge McCarthy nodded.  “You may, Counselor.”

“Although Ms. Brooks made a very eloquent argument in defense of the motion for sanctions, I notice that she never affirmatively represented to the Court that her client did not, in fact, provide the reporter with the confidential information.  Moreover, she did not submit any affidavits or other testimony from her client to that effect in opposition to the motion.  She merely argued that Defendants failed to provide any direct proof that he had leaked the documents,” Weisman said.  “Under these circumstances, we ask the Court to make a factual finding, based on the circumstantial evidence, that he did disclose confidential information, and to grant our motion for sanctions.”

Damn.
  She had hoped to skirt around that issue.  She didn’t want to subject herself, her law firm, or Charles to sanctions by falsely representing that he didn’t leak the confidential documents to the reporter when she knew that he had.  She also couldn’t allow him to lie under oath on the issue.  Her solution was to point out that the defendants had not met their burden of proof.  She was legally correct.  After all, it was their burden to prove the factual allegations of their motion for sanctions. 

But being right on the law didn’t always translate into winning.  Judge McCarthy was a human being and an ethical one at that.  She would take a dim view of what she perceived of as legal shenanigans.  She could rule against them and then they’d have to wait until the end of the lawsuit to appeal her ruling.

Judge McCarthy sent a suspicious look over at Charles.  Then, she turned to Kathy.  “Any response, Counselor?”

“Yes, your honor.  By making the argument they just did, the defendants are attempting to improperly shift the burden of proof on the motion upon the plaintiff.  The law is clear that they bear the burden of proof with respect to proving the factual allegations of their motion.  As a result, no representations or testimony on my client’s behalf are warranted, necessary or appropriate,” Kathy said.

Judge McCarthy glared at Kathy for a moment then banged her gavel.  “I find that there is adequate circumstantial evidence to support a finding that the plaintiff did, in fact, violate the confidentiality order in this case by leaking confidential documents to the Miami Herald reporter.  Therefore, I grant the motion for sanctions and hold that the plaintiff may not use any of the documents referred to in the article for any purpose in this case.”  

The judge leaned forward in her seat and peered at Charles over the rims of her glasses.  “Mr. Morgan, if I even suspect that you’ve leaked any additional confidential documents in this case in violation of my order, I will dismiss this lawsuit so fast your head will spin and you will spend time as a guest of the federal prison system for being in contempt.  Have I made myself clear?”

Charles stood up to address the judge.  “Yes, your honor.”

“Good.  Next, we have the motion to compel the defendants to provide clean copies of the documents responsive to the plaintiff’s document requests.”

Charles took his seat as Kathy stepped forward. 

“Yes, your honor,” she said.  “As I mentioned earlier, one of the grounds for the motion to compel is that the defendants never produced some of the documents referred to in the newspaper article in response to our document requests.  Specifically, the defendants never produced any incident reports authored by Defendant Wilkes.  We specifically requested those documents.”

“Your honor,” Weisman said, “that is simply not true.  We did, in fact, produce the incident report pertaining to the accident that is the subject of this case.  We objected, however, to the production of all incident reports authored by Mr. Wilkes in the three year period preceding the incident on grounds of national security.  Such documents are not relevant to this case.”

“Your honor,” Kathy said, “we have searched the fifty boxes of documents they provided to us high and low and did not find a copy of the incident report pertaining to the death of Patricia Morgan.  To the extent they did produce the incident report, it was so heavily redacted as to be unrecognizable.  That leads us to the second ground of our motion to compel.  All of the documents produced by Peachtree in this case were so heavily redacted - with most of the words crossed out in thick black ink - as to be indecipherable.  We can’t even tell what the documents are in some instances.”

“Your honor, we redacted the documents we produced in the interests of national security. You just made a finding that, despite the confidentiality order you entered in this case, Mr. Morgan leaked some of the documents to the press.  Redacting the documents appears to be the only safeguard we have for protecting national security interests in this case,” Weisman said.

“Your honor, we believe that Peachtree is using the claim of national security as a smokescreen to avoid having to provide any meaningful discovery.  The only way to clear this up, once and for all, is to order the defendants to produce clean copies of the documents to the Court.  The Court can then inspect the documents and determine whether redaction is necessary to protect national security interests.  There is quite a bit of authority supporting this type of procedure.  We cited the cases in our motion,” Kathy said.

Judge McCarthy was silent for a moment then she banged her gavel.  “I’ll take the motion to compel under advisement for now and inform the parties of my ruling on the motion in writing.  In the interim, I hereby order the defendants to produce clean copies of the documents to the Court for inspection.  And that includes any reports authored by Defendant Wilkes in the one year period preceding the incident giving rise to this lawsuit as well as any reports pertaining to the incident.”   

Weisman stepped forward.  “But your honor -.”

Judge McCarthy banged her gavel again, cutting him off.  “I’ve made my ruling.”  She rose from her seat.