Chapter 21 #2
“No, you may not, Mr. Haller,” Ruhlin said.
“Not yet. Let me say once again for the record, the court will not tolerate any intimidation of witnesses or anyone involved with the parties to this lawsuit. Whatever Tidalwaiv is doing, shut it down, Mr. Mason. Because if I have to shut it down, there will be very serious consequences. Do you understand?”
“Yes, Your Honor,” Marcus said.
“Now, Mr. Haller,” Ruhlin said. “Do you wish to proceed with a rebuttal of the challenge to your witness?”
“Yes, Your Honor,” I said as I moved back to the lectern. “But I would first like to address what Mr. Mason said about my witness that continues the intimidation the court just said will not be tolerated.”
“We are past that, Mr. Haller,” Ruhlin said. “And we have a jury panel waiting for us. Do you want me to make a ruling on Ms. Kitchens now, or do you want to offer rebuttal?”
“I do offer rebuttal, Judge,” I said. “Let’s start with the nondisclosure agreement.
It was signed by Professor Kitchens under duress because the company had terminated her but offered her a six-month severance package that included health insurance if she signed the NDA.
She is a single mother with a daughter who has chronic asthma treated with prescriptions paid for by the company’s health plan. Expensive prescriptions, Your Honor.”
I held up a copy of the two-page NDA Kitchens had signed.
“Additionally, this agreement does indeed preclude Professor Kitchens from sharing proprietary information with any Tidalwaiv competitor,” I said. “But this court is not a competitor, Your Honor, and the plaintiffs are not intending to ask this witness anything about proprietary information.”
Marcus Mason stood up to be heard.
“Sit down, Mr. Mason,” the judge said. “You had your turn.”
“But, Your Honor,” Mason said. “Counsel is misconstruing the—”
“When I say sit down, I mean sit down,” Ruhlin barked.
Chastened, Mason sat down as instructed.
“Anything else, Mr. Haller?” Ruhlin asked.
“Yes, Your Honor,” I said. “The defense argues that Naomi Kitchens should be excluded as a witness because I did not provide adequate notice that she would testify. But that is because of the serious discovery violation purposely committed by the defense in this case. Professor Kitchens was employed by Tidalwaiv as an ethicist and was assigned to Project Clair. While on the project, she wrote numerous reports and gave numerous warnings that were ignored by the project’s managers and stakeholders and apparently by counsel for the defense.
This was in defiance of the court’s order to turn over in discovery all documentation of the project’s research and development.
Counsel turned over twelve terabytes of documents they said fulfilled that order. ”
In my peripheral vision I saw one of the Masons stand up to be heard. I kept going.
“Your Honor, nowhere in those twelve terabytes is a single document written by Naomi Kitchens,” I said.
“Any document in discovery that was sent to stakeholders had her name redacted. They tried to hide her from us, Judge, because they were aware she knew where the bodies were buried on Project Clair. To cure that violation, plaintiffs should be allowed to have Professor Kitchens testify to her work at Tidalwaiv. Thank you, Your Honor.”
The judge was silent for a few moments while she digested everything I had just revealed. I glanced to my left and saw that it was Marcus Mason who had stood up to respond.
“That is a very serious allegation, Mr. Haller,” she finally said. “Mr. Mason, how do you respond?”
I stepped back to give Mason the lectern, but I stayed close so he would feel me standing right behind him.
“Your Honor, as usual, Mr. Haller exaggerates and provides the court only the information partial to his cause,” he said. “But the reality is that the court’s order was to turn over in discovery all documents relating to the research, production, and promotion of the Clair app.”
Mason helpfully ticked off these three things on his fingers for the judge’s understanding.
“We have fully met that order, Your Honor,” he continued.
“Ms. Kitchens had nothing to do with those processes. She was merely an observer, and therefore we were under no obligation to provide what few documents and emails she authored. Thus the redactions that Mr. Haller hopes to cast as sinister.”
“Your Honor?” I said, raising my hand like a schoolboy.
“Yes, Mr. Haller,” Ruhlin said.
Mason stepped back from the lectern and took a position behind me, attempting to do to me what I had done to him.
“I find it interesting that Mr. Mason mentions emails authored by Naomi Kitchens,” I said.
“I had not mentioned emails, Your Honor, and that tells me that the defense was familiar with the role she played in Project Clair and the numerous warnings she wrote in documents and emails. They then took steps to minimize the threat she presented to their case by scrubbing her entirely from the discovery materials. And I hope the court will keep in mind that this effort to scrub her from the project was undertaken before—long before—the first meeting I ever had with Professor Kitchens.”
Mason came up next to me, reached over the lectern, and bent the microphone’s arm toward himself.
“Your Honor, that is not the case,” he said. “There are not numerous documents and emails from Kitchens. Very few, in fact, and they are inconsequential to the case at hand.”
I spread my arms wide in protest.
“Your Honor, I think I still have the lectern,” I said.
“You do, Mr. Haller,” Ruhlin said. “Mr. Mason, step back. Now.”
Mason did so while I bent the mic’s arm back toward me.
“Your Honor, Mr. Mason is wrong,” I said.
“Dr. Kitchens’s testimony is elemental to the plaintiffs’ case.
She warned Tidalwaiv that Project Clair was not safe or appropriate for teenagers.
Tidalwaiv fired her and ignored her warnings, which ratchets up their negligence to recklessness.
I will give Mr. Mason the benefit of the doubt that he knows only what Tidalwaiv wants him to know.
But there are numerous documents and emails from Dr. Kitchens.
Fearing retaliation from the company when she offered warning after warning about Project Clair, she kept copies of every document and email she ever wrote about the project and she has turned them over to the plaintiffs’ legal team.
She should be allowed to testify to authenticate for the jury these materials intentionally left out of discovery. ”
“Your Honor?” Mason said.
Ruhlin hit him with a baleful look.
“It better be good, Mr. Mason,” she said.
I stepped back to give him the lectern.
“Judge, there are discovery issues on both sides here,” he said. “If Mr. Haller has this great trove of documents from this witness, why were they not provided to the defense? It seems like the pot calling the kettle black.”
I raised my hand.
“Not necessary, Mr. Haller,” Ruhlin said.
“I am prepared to rule. Naomi Kitchens will be allowed to testify. As far as the documents she has provided the plaintiffs, these are documents Tidalwaiv either has or has destroyed. I find no violation of discovery on the part of the plaintiffs, and Mr. Mason, I advise you to have a sit-down with your clients to remind them of their obligations under this cause of action. I consider what happened with materials authored by Ms. Kitchens to be a serious violation of discovery. Now, any other objections to witnesses, or are we ready to bring in our potential jurors?”
I knew better than to push my luck. The ruling on Kitchens was a potential case-breaker. I quit while I was ahead and told the judge I was ready to proceed with voir dire.
But the Masons weren’t. They spent the next forty minutes pecking away at my witness list, the judge relenting in the name of time and whittling down the number of project managers, coders, and other Tidalwaiv employees I could call.
They even challenged my inclusion of Victor Wendt, founder of Tidalwaiv.
I protested all the way but it was purely for show.
As I whispered to the two women who sat with me at the plaintiffs’ table, Kitchens was going to be our knockout punch.
No matter how many names the judge lopped off my list, we were going to come out way ahead at the end of the session.
Or so I thought.