Silent Justice (20 page)

“Has the defendant failed to produce documents?”

“No. Much to the contrary. They’ve produced hundreds of thousands of documents.”

“Then what is your problem?”

“Your honor, I’ve made a preliminary review of these documents, and I can tell you that most of them are not even arguably relevant to this case.”

The magistrate’s eyes narrowed. “Let me see if I’ve got this straight. You’re complaining because the defense has been too generous.”

“Your honor, the defense is clearly engaging in a deceptive scheme to hide the ball in a morass of useless information.”

“You stop right there, Mr. Kincaid.” The magistrate’s eyebrows formed a solid ridge above angry eyes. “In my conference room, members of the bar will treat one another with respect.”

“But your honor—”

“I’ve known Mr. Colby for years. We went to school together. I know from experience, that he is a man of honor and a distinguished member of the bar, and I will not have you refer to him in that abusive and derogatory manner.”

Oh, great, Ben thought silently. He would get nowhere as long as this suckup was calling the shots. “Pardon me, sir. I know your honor has always upheld the highest standards of decorum—”

“Flattery won’t win your motion, counsel.”

Ben drew in his breath. This guy had it in for him, big time. “Your honor, it’s my sincere belief that this document production violates the spirit, if not the letter, of the discovery code and this court’s new mandatory production guidelines. No effort has been made to sift out the documents that actually pertain to the case.”

“The defendant didn’t ask to be sued, Mr. Kincaid.”

“Yes, your honor. I realize that.”

“You can’t expect an ongoing corporate concern to stop everything and start reading every document in sight. They have a business to run.”

“But the discovery code still applies to them.”

“Let me be blunt with you, counsel. I’m not remotely interested in your whining about getting too many documents. As far as I’m concerned, that just means you should stop complaining and get to work.”

“
But, sir—
”

“Do you have any evidence that there are relevant documents that have
not
been produced?”

“Yes, your honor.” At last, they were getting to his motion. “I discussed that in my brief. They have produced no internal studies relating to Blaylock’s waste-disposal practices.”

“Do you know that there are in fact any such studies?”

“No, not for certain. But if there are—”

“So basically this is a big fishing expedition. I might have known.” He adjusted himself to face Colby. “What about it, Charlton? Do you know if your client has conducted any internal studies that are relevant to this case?”

Colby didn’t hesitate a moment. “I assume your honor is only interested in documents subject to production.”

“Of course.”

Ben felt an alarm sound inside his head. What did that mean?

“I have no knowledge of any such studies. I see no reason to believe there are any.”

“You would agree that, if the studies exist, they should be produced.”

Again he did not hesitate. “Certainly, your honor. Assuming there is not some other factor that renders them not subject to production.”

“Wait a minute,” Ben said. “What is all this wishy-washy talk about documents subject to production? Every relevant document is subject to production.”

Colby glanced at Ben benignly, as if he were trying to deal kindly with the village idiot. “What opposing counsel has just said, your honor, is of course not accurate. Sometimes otherwise relevant documents must be withheld. For instance, when they are subject to a claim of privilege.”

“Are you saying you’re holding back documents under some claim of privilege?”

“I did not say that.”

“Don’t mince words with me, Colby. Are you holding back documents?”

When Colby spoke, it was to the magistrate, not Ben. “A very few documents have been withheld, of course, as always occurs in cases of this nature. Communications between client and counsel are naturally protected by the attorney-client privilege.”

The magistrate nodded. “Of course. Nothing unusual about that.”

“Wait a minute!” Ben said. “If he’s holding back documents, I want to know what they are.”

Colby used the same patronizing tone. “The provision of such information would, of course, violate the privilege.”

“Naturally.” The magistrate stacked his papers before him. “I think we should move on—”

“I don’t!” Ben shouted. He knew he wasn’t going to win any points with the magistrate with this outburst, but that was just too bad. “If he’s holding back documents, I want to know about it.”

The magistrate’s dander was rising. “If documents are privileged, you are not entitled to know anything about them.”

“Fine. Make him submit them to the court in camera. You can decide whether they’re privileged or not.”

The magistrate’s reply was succinct. “No.”

“Your honor! He could be suppressing anything under some fishy claim of—”

The magistrate rose, his face red with anger. “Mr. Kincaid, I have already warned you about these disparaging remarks. I will not have them in my conference room, particularly not regarding a lawyer of the caliber of Mr. Colby. His professional reputation is unparalleled and unblemished. Quite the opposite of yours, I might add. If Charlton Colby tells me a document is privileged, then no further inquiry is required.”

Ben bit down on his lower lip. The magistrate’s good ol" boy favoritism was enraging, but making a scene wouldn’t help. The best thing he could do now was control his temper and try to salvage what little he could from this disaster.

“May I ask for a ruling on my motion, your honor?” he said quietly.

“Your motion is denied.”

“As to what?”

“As to anything. I will not punish a busy defendant for producing too many documents. That’s the stupidest thing I’ve ever heard.”

“And about the internal studies?”

The magistrate pursed his lips. Clearly his patience was being pushed to its outer limits. “To the extent that any such studies exist, they must be produced. Assuming they are not subject to privilege or any other infirmity.”

“Understood, your honor,” Colby said quietly. “I’ll institute a thorough search immediately. Just to be sure.”

“I know you will. Thank you for your cooperation. It is much appreciated and”—he glanced quickly at Ben—“most refreshing.” With that, the magistrate rose to his feet and strode out of the conference room.

“I’ll expect those documents by the end of the week,” Ben said to Colby, once they were alone.

“Or what?” Colby replied, arching an eyebrow. “You’ll complain to the magistrate?” He allowed himself a small chuckle, then quietly slid through the door.

Late that night, Charlton Colby arrived at the private office of Myron Blaylock, on the top floor of the Blackwood headquarters building. They were alone. The room was mostly dark. A green shaded banker’s lamp on Blaylock’s desk provided the only illumination.

“What happened?” Blaylock snapped. Colby wasn’t surprised. A man Blaylock’s age had no patience for small talk.

“It went precisely as I anticipated.”

“So … we don’t have any problems?” Although his eyes did not avert, his hand touched the blue-covered report on the corner of his desk.

“None at all.”

“We have a reason for not producing it?”

“We not only have a reason”—a tiny smile crept across Colby’s face—“we have the magistrate’s blessing.”

“Excellent. Excellent.” Blaylock rubbed his spindly fingers together. “Maybe you are worth that outrageous fee you charge, after all.”

“I try.”

His hand returned to the report. “This must never get out.”

“Then it won’t.”

“And we must win this lawsuit. Whatever the cost.”

“Understood.”

“Any more settlement talk from the plaintiffs" lawyer?”

“No. He still thinks he can win.”

“You don’t seem too worried.”

“I’m not.” Colby turned slightly, gazing out the window at the night sky. “What Kincaid doesn’t understand is that I’ve got an ace in the hole. No matter what. Even if he makes it to trial. And whatever the result. He cannot prevail. It’s not possible. No matter what happens.” He turned back toward Blaylock, his eyes unblinking. “No matter what.”

Friday night, Ben was still in his office working late, as he had been every night since he’d accepted the Elkins class action. His staff was all present as well. Jones was on the phone, trying to line up the corps of experts they would need to prove this case and, even more challenging, trying to figure out how to pay them. Ben was talking to Loving about his two ongoing investigations—one of Blaylock employees, the other of Mrs. Marmelstein’s “Paulie.”

“I didn’t find a birth certificate anywhere in Oklahoma,” Loving told him. “If there is a son, he must’ve been born in another state.”

“Keep looking,” Ben said. “There must be record somewhere.”

They were interrupted by a knock on the office door. A moment later, Christina stepped inside. “Courier from Raven, Tucker & Tubb.”

Ben glanced at his watch. “What do you know? Colby made the deadline. Just barely.”

He took a large manila envelope from Christina. A note on the outside said it contained “all additional documents to be produced pursuant to the magistrate’s order.” Ben opened the envelope.

It was empty.

Ben tossed it over his shoulder and let it slowly flutter down to the trash can.

“They’re not going to give us a damn thing,” Ben said quietly. “And there’s nothing we can do about it.”

“So where does that leave us, Skipper?” Loving asked.

“In your ball park. I don’t want to put the pressure on you, Loving, but the fact is, they’re not going to tell us anything. I could probably depose every employee in the whole damn corporation. As long as Colby’s hovering over their shoulders, it won’t make any difference.”

“What can I do?”

“What you are doing. Only more so. You’ve got to find someone who will talk. Someone in that corporation must have a shred of decency. Someone’s conscience must be bothering them.”

“I’ve been tryin’—”

“Try harder. As soon as the depositions are done, I can guarantee you Colby will file a motion for summary judgment. If I can’t prove Blaylock is responsible for tainting the Blackwood water supply, we’ll never get to trial.”

“I’ll do everything I can, Skipper. And then some.”

“Good. Good.” Ben nodded slowly. “And I’ll take all the depositions we can afford. Maybe someone will slip, tell us something we don’t know. But I doubt it.” He leaned forward. “You’re our last best hope, Loving. The last one we’ve got.”

C
HRISTINA OFFERED CECILY ELKINS
a glass of apple juice. She was taking her off coffee; the woman was jittery enough without another shot of caffeine coursing through her veins.

“I don’t understand why this is necessary,” Cecily said. “Why would they want to take my deposition?”

“Because you’re the principal plaintiff.” They were sitting at a round table in one of the smaller conference rooms in Ben’s office. Christina had tried patiently to explain the ins and outs of depositions, as she had done before for other clients on dozens of occasions. It was always the same. Nobody liked it. The thought of being face-to-face with an opposing attorney who had the right to ask you virtually anything was enough to intimidate the hardiest of souls. “You’re suing them.”

“My little boy died! We all know what happened. It’s not as if there’s any doubt about it.”

“There is doubt about why it happened. At least in the defendant’s camp.”

Cecily was dressed in what Christina suspected was her Sunday best—a pretty print dress with a blue bow. Her black hair was brushed back and pinned on top of her head. She was wearing makeup—probably more than was her norm. Witnesses always dressed for depositions, Christina had noticed, even though the court reporter would only record what they said. She supposed that there was a subliminal hope that if she made a good appearance the attorneys would go easier on her. Fat chance.

“There’s no point in asking me questions about causation,” Cecily said. “I don’t know anything about chemicals or leukemia.”

“Which I’m certain they will point out repeatedly.” Christina placed her hand over Cecily’s. She could feel it trembling slightly. “Anyway, Ben wanted me to go over a few points with you. To prepare you for the deposition.”

“Where is he, anyway? Why isn’t he doing this?”

“He’s taking the depositions of some of the defendant’s employees. You’re not scheduled until later in the week.”

“I hope he makes them suffer as much as I am.”

“Fear not,” Christina reassured her. “He will.” Actually, Ben was rather courteous, as deposers went, but why tell her that? “Let’s go over the ground rules. When the deposition begins, you’ll be sworn in by the court reporter. You have to tell the truth; if you don’t, you’re subject to prosecution for perjury.”

“Does that actually happen?”

“Next to never. But it’ll be pretty embarrassing if someone proves at trial that you lied at your deposition. That’s the main reason they take these things. To get a preview of your testimony, and to keep you from changing your story. If you do, they can read the contradictory passage from your deposition at trial to impeach you.”

“What can they ask?”

“Virtually anything. See, there won’t be a judge present to rule on objections. Attorneys can make objections, but they’re reserved till trial. That means you have to answer the question, pending a future ruling. Only in very rare instances can Ben instruct you not to answer—like if the question impinges on the attorney-client privilege.”

“It seems like, if a question is objectionable, I shouldn’t have to answer at all.”

“Yeah, but think about it. There’s no judge present. If the deposition stopped for a ruling every time an attorney made an objection, the deposition would never be finished. It would go on forever. Which, of course, would be fine with most defendants.” Christina could see that her explanations were not calming Cecily in the least.