The Justice Game

54

The look on Melissa Davids’s face had been smug and impatient in her first deposition, but today it was pure contempt. Jason worried that his client might say something she would regret later, something that Jason might not be able to overcome no matter how skillfully he picked and cajoled the jury.

Even as Kelly asked her preliminary questions, Jason’s palms were practically dripping with anxiety. He caught his leg bouncing nervously under the table and stopped before he bumped Case McCallister, sitting next to him. What did Kelly Starling have that was so important it required a follow-up deposition?

“In your last deposition, I asked if you were aware of the fact that Peninsula Arms had received three citations from the ATF even before Rachel Crawford’s death. You said you might have been aware of that. Do you remember that testimony?”

“Yeah.”

“Do you want to amend that answer?”

“Of course not.”

“Were you aware of those citations?”

“Objection,” Jason said. “How many times does she have to answer the same question?”

Kelly ignored him. “Ms. Davids, are you saying today, under oath, that you don’t recall whether you were aware of those three ATF citations?”

“I said it before and I’ll say it again: I might have been.”

Kelly snorted at the answer. Jason tensed even more, leg bouncing, heart pounding. He didn’t like where this was headed.

“I also asked you whether you ever considered shutting down Peninsula Arms as a dealer.” Kelly consulted her bound copy of the prior deposition’s transcript. “And your response was, ‘No. If anybody had suggested such a thing to me, I would have told them I still believed in the Second Amendment and the free enterprise system.’ Do you remember that testimony?”

“Not particularly. But if that’s what the transcript says, I don’t deny it.”

“Isn’t it a fact, Ms. Davids, that you definitely considered whether MD Firearms should cut off rogue dealers and definitely decided against doing it because you wanted to protect the company’s bottom line?”

Jason opened his mouth to object but it was too late.

“Of course not,” Davids shot back. She looked like she wanted to jump across the table and attack Kelly. “That’s just your fantasy.”

Jason knew what was coming next. Part of it was the smirk on Kelly’s face. Part of it was the way she let the answer hang out there as she deliberately pulled out a set of documents, slowly removed the paper clip and separated three copies.

She kept one copy, handed one to the court reporter, and slid the third across the table to Jason. “Since your last deposition had twenty-six exhibits, I’m going to ask the court reporter to mark this next document as Plaintiff’s Exhibit 27,” she said calmly. “Then I’ll ask if you’ve ever seen this document before.”

Jason glanced through the document quickly. Just as he feared, Kelly had somehow obtained a copy of the memo from Case McAllister.

“I object,” Jason interjected, even before the court reporter handed the document to Davids. “This document is protected by the attorney-client privilege. I’m instructing the witness not to answer any questions about it.”

Without saying a word, Kelly Starling pulled out another set of documents, removed a paper clip, and separated three single sheets of paper. When Jason got his copy, his throat constricted.

It was a copy of Davids’s e-mail to Gerald Franks, CEO of Walker Gun Co., urging him not to blacklist renegade dealers from the Walker distribution chain. The e-mail was cryptic and to the point-vintage Melissa Davids. Gerry: If just one manufacturer caves in on this, it will require that all the rest of us also monitor every dealer and shut off dealers with troubled legal histories. For a lot of reasons, this is a bad idea. Attached is a memo Case put together on the subject. For your eyes only. Don’t open the floodgate for lawsuits. Melissa

While Jason stared at the memo, Kelly had it marked as Plaintiff’s Exhibit 28. “Do you recognize this?” she asked Davids.

“Hold on,” Jason said. He turned to Kelly. “Where did you get this?”

She shrugged. “I don’t have to answer that.”

“This e-mail and the attached memo are protected by the attorney-client privilege. I’m instructing the witness not to answer.”

“You’re kidding,” Kelly said.

Jason felt his face flush, but he was committed now. “I’m basing my objection on the joint defense privilege. Both companies faced the prospect of being named as defendants in a lawsuit. Under those circumstances, it’s not a waiver of the attorney-client privilege to share a privileged document with an executive from another company.”

Kelly laughed cynically. “That’s creative. But it’s also total garbage. Do you have any cases where the joint defense privilege has been applied to two companies that aren’t even defendants in the same case together?”

Jason sat up straighter. “You’re not going to talk me into this. If you want to call the judge, be my guest.”

Kelly gave one final harrumph and suspended her questions so they could get Judge Garrison on the phone. Halfway through Kelly’s explanation of the issue, the judge cut her off.

“Is this true?” he asked Jason. “Did Ms. Davids send this memo to another company’s CEO?”

“Yes, Your Honor. But both companies were potential targets in the lawsuits filed by the northeastern cities. MD Firearms had already been named as a defendant. In fact, that’s the very reason the memo was drafted in the first place.”

“Save your breath,” Garrison said. “Your objection is overruled. Tell Ms. Davids to answer Ms. Starling’s questions or I’ll hold her in contempt.”

Melissa Davids was still in the conference room and stared at the phone, her nose flaring. “I’m right here,” she said. “May I say something?”

“No,” Case McAllister said quickly, surprising even Jason.

Davids glared at her general counsel for a second and then apparently decided that twenty years of building trust ought to be worth something. “Okay,” she said to the speakerphone. “On the advice of my lawyer, I’ll just keep my mouth shut and answer the questions.”

“Good call,” Judge Garrison said.