Witnessing how the hacked Democratic National Committee emails dominated media coverage of last week’s Philadelphia convention, one could easily conclude that the sanctity of “internal communications” are impossible to maintain in the electronic age. Yet, it’s worth remembering that once-private memos have often found a way out – in fact, the DNC mess reminded me of a 19-year-old document that leaked in Dallas.
The “Baron & Budd Asbestos Memo,” (named for the firm that used it) even has its own Wikipedia page!
For those of us who worry that some victim’s attorneys turn asbestos victims into “perjury pawns,” the memo is exhibit one that the system can be rigged. In recent months, it has become relevant again as attorneys filing racketeering lawsuits claim the memo helps illustrate a corrupt business model, and a documentary film on asbestos litigation includes the document.
The extensive Wiki page backgrounds that: “… in 1997, a junior associate at Baron & Budd, P.C., a law firm founded in part by Fred Baron accidentally produced to the defense counsel a twenty-page memo titled “Preparing for Your Deposition…”
Republican Senator Jon Kyl, a tort reform advocate, called the memo “a startling insight into how asbestos claims are created”; in a Senate Report, Kyl writes that the memo: “… gives clients detailed instructions how to credibly testify that they worked with particular asbestos products. The memo also instructs clients to assert particular things that will increase the value of their claim, without regard to whether those things are true. The memo even informs clients that a defense attorney will have no way of knowing whether they are lying about their exposure to particular asbestos products.”
A former Texas supreme court justice said that “... with this document, you could almost go down the street, get a homeless person, spend a couple of hours with him, and he would be prepared to testify.”
At the time, Baron & Budd more or less dismissed critics and contended it was just looking out for its clients; assisting them in recollection. The B&B lawyers also stated the memo was a single incident and the work of a single non-lawyer employee.
Well before the email era, the memo leaked the old-fashioned way: Somebody handed it over by mistake. Of course the law firm said it was a one-off, but the Wiki account addresses the argument, noting that “… however the Dallas Observer conducted an investigation into the memo and found that ‘a number of former Baron & Budd employees say that the information and techniques contained in the memo are widely used, even taught to employees’ and that the ‘memo was not truly an aberration, but a written example of how the product-identification staff works at Baron & Budd.’”
Flash forward two decades. Fred Baron, the truly legendary trial lawyer who built an asbestos-litigation empire in Dallas, died in 2008. Lawyers from that firm have started their own firms. So what’s the big deal now?
The B&B memo is relevant again after it was cited in what’s known as the Garlock Case, where a federal bankruptcy judge in North Carolina cited the document while ruling, as Forbes magazine explained, that “… the practice of plaintiff lawyers to hide evidence their clients were exposed to products made by other companies, both by coaching their clients to deny exposure and by failing to disclose claims they made in other cases. While the judge declined to comment on the legality of those tactics, his findings appear to support the fraud claims Garlock parent EnPro Industries made against several law firms...”
Those initial fraud claims are close enough to “settlement” that the court has suspended activity pending details. It should be noted that despite the impending settlement of the Garlock case, the Judge refused to dismiss the case, apparently due to the evidence submitted. In the meantime, the memo is already helping fuel other civil RICO lawsuits that, in effect, argue many of the Garlock points and allege that some of the most high-profile and politically connected law firms in America are engaged in corrupt practices.
“These fifteen cases are just a minute portion of the thousands that were resolved by Garlock in the tort system. And they are not purported to be a random or representative sample. But, the fact that each and every one of them contains such demonstrable misrepresentation is surprising and persuasive,” the judge said.
How politically connected is the Garlock Four nationally? Well, Jeffery Simon, a name partner at Simon Greenstone, is president of the politically powerful Texas Trial Lawyers Association and when President Obama did a fundraising tour of Dallas, he found time for a round of golf with Peter Kraus of Waters & Kraus.
Now, after all this time, the B&B memo may even be ready for its close-up. Documentary journalist Paul Johnson, a Canadian well-known to that country’s Global News viewers, says the memo is really a sort of “smoking gun” in his new film about asbestos litigation. He is scheduling sneak-peak showings for later this month with a premier to follow.
Even with all that, it remains difficult to predict how civil racketeering claims play out in the hyper-charged political environment illustrated at the DNC. However, let us agree that, with a Clinton eyeing the White House again, a documentary in the works and leaked memos – I mean emails – suddenly driving political discussion, anything can happen.
(Sara Warner is publisher of the National Courts Monitor and California Courts Monitor. Disclosure: Although Ms. Warner has not participated in the Paul Johnson film mentioned, some Courts Monitor contract researchers and contributing editors have contributed to the documentary and the National Courts Monitor is in discussions to host the Washington, D.C. premier of the movie.)