Balance of Power

TWO

Three weeks later, Sarah Dash stood in a cavernous warehouse outside Hartford, Connecticut, watching a team of paralegals comb through reams of paper crammed inside rows of metal filing cabinets.

They would have to read through every document. Sarah was certain that Lexington had provided the documents because their contents were as innocuous as their volume was oppressive. But it was always possible that Lexington had tucked amidst the dross that single, damning memo which would prove Mary's case against it and, perhaps, against the SSA as well. And so, at great expense, this work went on, running down the clock on plaintiff's discovery.

These last three weeks, Sarah acknowledged, had proved to be the nightmare which Lenihan envisioned. John Nolan had deployed an array of tactics to bring plaintiff's discovery to a standstill: producing "document bricks," hundreds of cardboard boxes so crammed with irrelevant papers that the paralegals had been forced to purchase box cutters in order to remove them; scheduling meaningless depositions, which Lenihan's associates were required to attend; serving hundreds of pages of written questions for which still more associates were required to draft responses. All of this, Sarah knew, served two obvious goals: first, to make the suit so costly and so fruitless that Lenihan's firm might prefer to settle than pursue it; second, to assure that the case went nowhere—let alone to trial—before Senator Fasano and Speaker Jencks had passed a law to extinguish it. A third goal was more subtle: to make every day sheer misery for Lenihan and Sarah.

This day, spent in the squalor of an ill-lit warehouse, was Nolan's ultimate revenge.

* * *

Sarah's trip had been prefigured five days earlier, in a discovery hearing before Judge Gardner Bond.

Solemnly, Bond read aloud from the first report by the Special Discovery Master, Professor Ian Blaisdell of the Stanford Law School: " 'The Special Master,' " Bond intoned, " 'has reviewed documents produced by Lexington and the SSA regarding their communications with each other, and with other manufacturers.

" 'At this time, there are no documents which suggest that the SSA conspired to keep Lexington from reaching an agreement with the Kilcannon administration; that the SSA exercised control over Lexington or any other manufacturers; or that it played a role in directing Lexington's affairs. Therefore the Special Master has not provided plaintiff's counsel with any of the documents reviewed.' "

Robert Lenihan stood. "Our problem, Your Honor, is not with the Special Master. But defense counsel are the sole arbiters of what documents he sees."

Bond stiffened. "Are you suggesting that Mr. Nolan or Mr. Fancher are acting in bad faith?"

"What I'm suggesting," Lenihan answered, "is a systematic effort to bring this case to a grinding halt."

Swiftly, Sarah glanced at the benches, filled with reporters; with discovery sealed, Lenihan's only chance to score points in the media was to document defense obstruction. "Our motion to compel," Lenihan continued, "is a litany of abuses: delaying production; forcing us to depose witnesses without the relevant documents; scheduling irrelevant depositions to consume our time; continuing to insist that Mr. Callister's time is more valuable than that of the President and First Lady . . ."

"Your Honor," Nolan interposed in his most conciliatory manner, "might I make a proposal?

"If it would help dampen this controversy, we would be happy to give plaintiff's counsel direct access to all our files, without the delay caused by our current practice of culling and copying them for counsels' inspection. In short, we'll simply open up our records."

With an indignation born of deep frustration, Lenihan retorted, "That's even more fraudulent than what they're doing now. They'll drown us in garbage, with no conceivable relationship to our case . . ."

"You and Ms. Dash," Bond snapped, "were the ones in such a hurry. It was you who asked for an injunction. It was you who expanded the case to include the esoteric antitrust and public nuisance theories. It was you who served massive document demands, imposing massive burdens on the defendants to produce them. And now you're casting aspersions on their manner of production, no matter what it is." Bond lowered his voice. "Nothing they do seems to please you, counsel. It's time for you to live with the choices you made—without complaint."

Which was how Sarah found herself in a warehouse, as another day slipped away from them like sand in an hourglass.

* * *

The next morning, she flew to San Francisco to meet with Lenihan.

They settled on lunch at Farallon. Lenihan ate in a cold fury, part of it directed at her insistence on accelerating discovery and naming the SSA. She could not blame him. Nolan's form of Chinese water torture, obstructing discovery while consuming the resources of Lenihan's firm, was driving them further apart.

"It's not over," Sarah said at last.

In obvious disgust, Lenihan put down his fork. "That's what I'm afraid of. You don't have to be a prophet to see that we'll never get to trial before they pass that fucking law. And even if they don't pass it, we'll never get the evidence we need to prove our case." With an accusatory stare, he finished in a tone as acidic as Judge Bond's, "Assuming, as to your case, that the evidence exists."

Unflinching, Sarah took her time to answer. "You've made your point, Bob. A hundred times. And the only winner is John Nolan.

"We can sit here and whine. Or we can suck it up, and try to figure out how to get what we need . . ."

"What we need," Lenihan retorted, "is a fucking miracle. Or, at the least, a whistleblower. Someone inside Lexington or the SSA who despises what they're doing."

Sarah nodded. "That's why I asked them for a list of former employees—I was hoping to find a malcontent, or someone who left in a dispute. You already know what happened: Nolan and Fancher refused to comply, and Bond refused to make them."

Lenihan stared at the remnants of his seared ahi tuna. "Fuck Bond," he said at length. "We'll set up a web site asking for information about Lexington and the SSA, and publicize it in Washington and Hartford. To find ex-employees, we'll hire an investigator.

"The formal discovery process is all that Bond controls. Anything we get outside it, we can feed to the press."

Sarah pondered this. "If anything's traced back to us," she cautioned, "Bond will take it out on us."

"As long as we didn't violate his order, how could things be worse?" Lenihan's jaw set. "We need a mole, and we need publicity. Simple as that."

Sarah toyed with her soup spoon. "Look at Bresler, though. It's hard to imagine what the SSA would do to an employee who betrayed it. Or even what Lexington would do."

Lenihan gave a somewhat melancholy smile. "How many times," he observed, "have I seen a whistleblower who thinks he understands the risks.

"They never do. They never imagine how bad it will be—divorce, bankruptcy, all the friends who turn their backs on them, the ruin of a whole career. The last whistleblower I had killed himself in the driveway of his ex-wife's home."

And yet, Sarah thought, Lenihan was prepared to ferret out another one. With a shrug, he finished, "But what can we do? By tomorrow, we'll have our invitation on the net."