Wednesday, September 05, 2007

Like I Said, Beware of Those E-Mails!

At this morning's episode of the News-Press/NLRB hearing, the NLRB and Union attorneys got a lesson in the perils of no discovery.

In the usual court case, the parties have to exchange the evidence they have collected beforehand. I guess that's why they call it "civil" litigation. Labor relations hearings appear, at least to this observer, as a little more like the wild west or perhaps even the battlefield where parties can withhold evidence and use it to ambush opponents or launch it as a surprise rocket attack.

Spectators in the courtroom this morning witnessed such an incident. On the stand was fired reporter Tom Schultz who was asked on direct examination about the incident back in August of last year where newsroom employees tried to deliver a letter to Wendy McCaw. Schultz emphasized that in walking over to McCaw's office the group of 15 or more was orderly and non-disruptive.

News-Press attorney Barry Cappello challenged Schultz's account of the march as being orderly and professional. He asked Schultz whether the group had "rocked the house." Schultze denied that they did.

Cappello then produced an e-mail written by Schultz to 25 or so of his union colleagues in which he said: "Peeps, we rocked the house, crossed their wires and get 'em unglued." It provided a stark contrast to Schultz's earlier testimony that this was pretty much a non-event.

Of course the Union and NLRB attorneys appeared surprised by the production of the e-mail, even though Union attorney Ira Gottlieb was listed as one of the recipients. How did Cappello get a copy? He told the judge that it came from former News-Press employee Al Bonowitz in response to a subpoena Cappello had served on him demanding that he had over all documents and papers he had relating to the unionization effort.

How important that discrepancy in descriptions will ultimately prove to be remains to be seen. But it highlights the potential for undermining a witnesses' testimony when a shrewed lawyer is allowed to roam free in a frontier with no discovery.

This morning in my earlier post I remarked about Judge Kocol's superior command of the evidence. The same can't be said for his command of the names of the attorneys appearing before him.

On several occasions over the last two days he has repeatedly called Cappello Mr. Gottlieb. He did it this morning while Cappello stood at the podium questioning Schultz. Cappello addressed the judge to correct him and in pointing out that he took no offense to the mistaken reference said; "My mother's maiden name was Klukoff. So you're not looking at a full-blooded Sicilian here."

Time to get back to the hearing and see if the judge can keep the names straight.

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