Steve Martini - Double Tap

I stand with a single sheet of paper in my hand. “Mr. Havlitz, you say you read all of the subpoenas.”

“That’s right.”

“Do you remember one of the subpoenas that included among the items being sought”-I look down and read from the page-“any telephone directory or list of that company known as Isotenics, Incorporated, that includes the names, telephone numbers, or extensions of employees, officers, or agents of said company?”

“I think I recall it,” he says.

“Do you remember whether you produced such a document?”

“I, ah. . I don’t think we did.”

“Do you consider a company telephone directory to be a trade secret?”

He looks down at the floor, shrugs a shoulder, then looks at Sims.

“Objection: calls for a legal conclusion,” says Sims.

“The witness testified that he supervised the process to determine which documents were produced and which were not. Surely he must have exercised some standard in making that determination?”

“He did so only with the assistance of counsel,” says Sims.

“So is counsel now testifying, Your Honor? If so, I would ask that he be sworn and take the stand.”

Havlitz speaks up before the judge can rule on Sims’s objection. “I had the help of lawyers.”

“Too many people talking at once,” says Gilcrest. “The witness can answer the question.”

I put the question to the witness: “So what was the standard that you applied?”

“I. . I don’t remember. It was written down. But we tried to be fair.”

“I’ll bet. Was the prosecutor, Mr. Templeton, involved in this process? Did you confer with him?”

“I, ah. .” He looks at Sims for help. The lawyer would raise attorney-client privilege, but Templeton is outside the umbrella. Instead, Sims pores through a stack of papers in front of him until he finds the stapled sets he wants. “Your Honor, as a matter of fact, the company’s telephone list does qualify for trade-secret protection. Isotenics has guarded the contents of its internal phone directory for proprietary reasons. While the general telephone number of the company is listed, the individual extensions for divisions and specific employees of Isotenics are not. I have a case in point,” says Sims. He hands one copy to the bailiff for the judge and the other to me. “In this case,” he continues, “the court held that where the company compiled its internal directory, maintained it in confidence, and where the disclosure of names, phone numbers, and divisions or job descriptions included employees who were in the possession of legally protected trade secrets, the telephone list itself was a protected item. And in answer to Mr. Madriani’s question, the court lays out in detail the standard to be applied in determining the existence of trade secrets.”

Gilcrest is nodding. “Yes, I see that in the headnotes,” says the judge.

“Your Honor, we’ve had no time to look at any of this. The motion by Isotenics and its lawyers has been sprung on us like a trap. The witness has not answered my question. Did he or his lawyers confer with Mr. Templeton or anyone else from the prosecution in determining what documents to release and what documents not to release?”

“You can answer the question,” says Gilcrest.

“There were some conversations,” says Havlitz. “Meetings. I was present only at one of them.”

“But your lawyers met and talked to Mr. Templeton, isn’t that correct?”

“Objection. Anything conveyed by counsel to the witness as a representative of the client corporation is privileged information,” says Sims. It may be privileged, but he has just admitted to it.

I may have shown Templeton digging this pit with Sims and Isotenics, but the fact remains that we’ve fallen into it. The company phone directory is not a significant piece of evidence for us, but it is a bad example because of the case in point that Sims is able to put in front of the judge.

“I get the point, Mr. Madriani.” Still, Gilcrest is distracted, reading the case. On the eve of the trial, there is no easy way out. He will have to make a decision on whether to open the door on the company’s records, and if so, how far. The troubled expression from the bench as he reads says it for him-judge on the horns of a dilemma.

Ordinarily a court would have no difficulty balancing the equities-the right to a fair trail, a man’s life-against property interests. But here, Gilcrest is a man from Mars in a field of law that is foreign, and the property interests at issue could be worth hundreds of millions if not billions of dollars. Wearing black robes does not immunize a person from worry. The judge has to wonder. If Havlitz and his lawyers are correct and the court makes the wrong decision, if as a result a competitor takes trade secrets and uses them to crush Isotenics, there is no appeal to a higher court that can undo the damage. Sam Gilcrest may be defense oriented, but he is not oblivious to the fact that Isotenics is one of the largest employers in the county and a huge corporate taxpayer.

For the moment I would rather defer a decision than get a bad one on tactics that go to the heart of our case.

“Your Honor, perhaps there’s some middle ground,” I say.

Gilcrest looks up at me over the top of the decision he is still reading at the bench. “I’d be thankful for any suggestions,” he says.

Sims cuts me off before I can negotiate. “Your Honor, if Mr. Madriani is finished with the witness, I have one more before the court makes its ruling.”

“Mr. Madriani, do you have any more questions of this witness?”

“No, Your Honor.” Not knowing what other trip wires and grenades lie hidden in the pile of papers in front of Sims, I don’t dare ask about other documents they have declined to turn over. All I need is another mind-bending appellate opinion for Gilcrest to get lost forever in the dark forests of business law.

“Call your other witness.” The judge is still busy turning pages, trying to glean the exact dimension of trade secrets from between the printed lines. He motions to his bailiff to let Havlitz out and to buttonhole the other witness outside on the bench.

I am turned in my chair toward the doors at the back of the courtroom when she enters. Karen Rogan’s eyes fall on me for an instant before she fixes her gaze down at the floor. She purses her lips in a kind of pained expression of nervousness. Clutching a small handbag to her side, she looks at me again, but only for a fleeting second after she is sworn and seated on the stand.

“State your name for the record,” says Sims.

“Karen Rogan.” Her voice cracks as she spells her last name for the court reporter.

“You work at Isotenics, is that correct?

“Yes.”

“For how long?”

“Twe-twelve years,” she says.

“And what position do you hold?”

“My title is executive assistant.”

“And so that we can save the court some time, you worked as personal assistant to Madelyn Chapman, the victim in this case, isn’t that true?”

“Yes.”

“And you’ve met Mr. Ruiz, the defendant.” Sims points to Emiliano at the table.

“Yes, we’ve met. When he was working, providing security at Isotenics.”

It is clear that Rogan doesn’t want to be here. Unless I miss my guess, this is not just the usual nervous witness. Even with Sims moving between us at the podium, cutting off my view of the stand from time to time, the obvious avoidance of eye contact by Rogan makes it clear that she is being used to drop a rock on us.

“Would it be safe to assume that in that capacity you would have been privy to a good deal of confidential information that passed through you to Ms. Chapman and that some of that information would have included what are described as company trade secrets owned by your employer, Isotenics, Incorporated?”