“When I say sit down, I mean sit down,” Ruhlin barked.
Chastened, Mason sat down as instructed.
“Anything else, Mr. Haller?” Ruhlin asked.
“Yes, Your Honor,” I said. “The defense argues that Naomi Kitchens should be excluded as a witness because I did not provide adequate notice that she would testify. But that is because of the serious discovery violation purposely committed by the defense in this case. Professor Kitchens was employed by Tidalwaiv as an ethicist and was assigned to Project Clair. While on the project, she wrote numerous reports and gave numerous warnings that were ignored by the project’s managers and stakeholders and apparently by counsel for the defense. This was in defiance of the court’s order to turn over in discovery all documentation of the project’s research and development. Counsel turned over twelve terabytes of documents they said fulfilled that order.”
In my peripheral vision I saw one of the Masons stand up to be heard. I kept going.
“Your Honor, nowhere in those twelve terabytes is a single document written by Naomi Kitchens,” I said. “Any document in discovery that was sent to stakeholders had her name redacted. They tried to hide her from us, Judge, because they were aware she knew where the bodies were buried on Project Clair. To cure that violation, plaintiffs should be allowed to have Professor Kitchens testify to her work at Tidalwaiv. Thank you, Your Honor.”
The judge was silent for a few moments while she digested everything I had just revealed. I glanced to my left and saw that it was Marcus Mason who had stood up to respond.
“That is a very serious allegation, Mr. Haller,” she finally said. “Mr. Mason, how do you respond?”
I stepped back to give Mason the lectern, but I stayed close so he would feel me standing right behind him.
“Your Honor, as usual, Mr. Haller exaggerates and provides thecourt only the information partial to his cause,” he said. “But the reality is that the court’s order was to turn over in discovery all documents relating to the research, production, and promotion of the Clair app.”
Mason helpfully ticked off these three things on his fingers for the judge’s understanding.
“We have fully met that order, Your Honor,” he continued.
“Ms. Kitchens had nothing to do with those processes. She was merely an observer, and therefore we were under no obligation to provide what few documents and emails she authored. Thus the redactions that Mr. Haller hopes to cast as sinister.”
“Your Honor?” I said, raising my hand like a schoolboy.
“Yes, Mr. Haller,” Ruhlin said.
Mason stepped back from the lectern and took a position behind me, attempting to do to me what I had done to him.
“I find it interesting that Mr. Mason mentions emails authored by Naomi Kitchens,” I said. “I had not mentioned emails, Your Honor, and that tells me that the defense was familiar with the role she played in Project Clair and the numerous warnings she wrote in documentsandemails. They then took steps to minimize the threat she presented to their case by scrubbing her entirely from the discovery materials. And I hope the court will keep in mind that this effort to scrub her from the project was undertaken before—long before—the first meeting I ever had with Professor Kitchens.”
Mason came up next to me, reached over the lectern, and bent the microphone’s arm toward himself.
“Your Honor, that is not the case,” he said. “There are not numerous documents and emails from Kitchens. Very few, in fact, and they are inconsequential to the case at hand.”
I spread my arms wide in protest.
“Your Honor, I think I still have the lectern,” I said.
“You do, Mr. Haller,” Ruhlin said. “Mr. Mason, step back. Now.”
Mason did so while I bent the mic’s arm back toward me.
“Your Honor, Mr. Mason is wrong,” I said. “Dr. Kitchens’s testimony is elemental to the plaintiffs’ case. She warned Tidalwaiv that Project Clair was not safe or appropriate for teenagers. Tidalwaiv fired her and ignored her warnings, which ratchets up their negligence to recklessness. I will give Mr. Mason the benefit of the doubt that he knows only what Tidalwaiv wants him to know. But there are numerous documents and emails from Dr. Kitchens. Fearing retaliation from the company when she offered warning after warning about Project Clair, she kept copies of every document and email she ever wrote about the project and she has turned them over to the plaintiffs’ legal team. She should be allowed to testify to authenticate for the jury these materials intentionally left out of discovery.”
“Your Honor?” Mason said.
Ruhlin hit him with a baleful look.
“It better be good, Mr. Mason,” she said.
I stepped back to give him the lectern.
“Judge, there are discovery issues on both sides here,” he said. “If Mr. Haller has this great trove of documents from this witness, why were they not provided to the defense? It seems like the pot calling the kettle black.”
I raised my hand.
