Mitchell Mason stood and went to the lectern. I was surprised it wasn’t Marcus taking the reins. The witness list was the backbone of the case.
“Your Honor, where do I begin?” Mitchell said. “I mean, even at twenty-three names, this list is—”
“Do you have an objection to a specific name, Mr. Mason?” the judge interrupted.
“To many of them, Judge.”
“Then what do you say we just start with one of them? We have a jury pool waiting to come into court for voir dire. Let’s not keep them waiting too long.”
“Yes, Your Honor. The defense objects first and foremost to Naomi Kitchens.”
“State your grounds.”
Before beginning, Mitchell glanced over at his brother sitting at the defendant’s table.
“Thank you, Your Honor,” Mitchell said. “Ms. Kitchens is a former employee of Tidalwaiv who was dismissed for performance issues and whose record of hostility toward the company renders her testimony unreliable. But, Your Honor, all of that is moot because Ms. Kitchens signed an ironclad nondisclosure agreement that prevents her from discussing anything she did or observed while in the employ of Tidalwaiv. She simply can’t be allowed to testify. Last, counsel for the defense is out-and-out sand—”
“Counsel for the defense?” Ruhlin asked.
“Apologies, Your Honor,” Mitchell said. “Counsel for the plaintiffs. I guess I’m used to Mr. Haller defending criminals.”
Yeah, right — as if he hadn’t been waiting for the right moment to make that “mistake.” I objected, just to knock Mitchell out of rhythm. The judge overruled.
“May I continue, Your Honor?” Mitchell asked.
“Please,” the judge said.
“Thank you. Your Honor, plaintiffs’ counsel is clearly trying to sandbag us. He’s been hiding this witness. She was on neither of the preliminary witness lists and suddenly appears on this list in an amendment filed just minutes before court was convened so that we had little time to prepare our objection and when he has known for weeks that she would be on the list. The bottom line, Your Honor, is that any one of these arguments is enough to remove Naomi Kitchens from the witness list. Taken as a whole, the court has overwhelming reason to strike her.”
Finished, Mitchell turned from the lectern and headed back to his table without waiting to see if the judge had any questions.
“Very well,” Ruhlin said. “Mr. Haller, a response?”
I jumped up quickly and went to the lectern like a man on a mission. Along the way, I saw Marcus Mason whispering to his brother and pointing a finger in the air to make his point. He had seen the mistake his twin made, but it was too late.
I had seen it too.
“Your Honor,” I began, “before I argue the points Mr. Mason thinks he made, I would ask the court to inquire about his statement that I knew ‘for weeks’ that Naomi Kitchens would be a witness in this case. The facts are, Your Honor, that I did indeed meet Professor Kitchens several weeks ago and then again this past Friday. But she felt intimidated and afraid of Tidalwaiv and did not, in fact, agree to be a witness until shortly before nine this morning. If you wish to confirm that, we can set up a teleconference with Professor Kitchens at the court’s convenience. But that aside, Your Honor, Mr. Mason’s statement indicates that the defense team has been surveilling Professor Kitchens because they know her value as a witness for the plaintiffs in this case. They did this with Mr. Patel and now Naomi Kitchens. It’s called witness intimidation, Judge, and I would like it stopped.”
I saw the skin around the judge’s eyes tighten, and when she spoke, an unmistakable but controlled anger had entered her voice.
“Mr. Mason,” she said. “Do you care to offer an explanation for the knowledge you seem to have of Ms. Kitchens’s status as a witness?”
Mitchell Mason stood up and moved to the lectern as I backed away. He seemed to be two shades paler than when he had stood there a few moments before.
“Thank you, Your Honor,” he said. “I can assure you that no attorney or staff member of the law firm of Mason and Mason has had any witness or opposing counsel under surveillance at any time. Mr. Haller is just trying to—”
“That’s all well and good, Mr. Mason,” Ruhlin said. “But what about your client? Did you receive information from your client as to who Ms. Kitchens or Mr. Haller and his staff were meeting with?”
Now Marcus Mason stood up and came to the lectern in an attempt to rescue his brother.
“Your Honor, if I may be heard?” he said.
“Go ahead,” Ruhlin said. “We are losing the morning with this, but go ahead.”
“Thank you,” Marcus said. “As my brother said, Mason and Mason has not engaged in any surveillance or intimidation of witnesses. But as he said earlier, and as with Mr. Patel, Ms. Kitchens was terminated from Tidalwaiv for cause and was deemed a security threat by the company. As such, the company took measures to protect itself. And this was long before any lawsuit was filed by the plaintiffs. No laws were broken by these procedures. They were perfectly acceptable and legal. Mr. Haller has made it a routine during this legal action to seek out as witnesses those who left the company under rancorous terms in hopes that he will sway a jury with false and biased testimony harmful to the company.”
I had stayed standing at the plaintiffs’ table, ready to respond.
“Your Honor?” I said. “May I—”
“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.”