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Thursday, February 20, 2020

Discovery dispute delaying theft case against Motley Rice

By John O'Brien | Apr 21, 2011


CLEVELAND (Legal Newsline) - The court battle over the alleged theft of confidential documents by plaintiffs firm Motley Rice is stagnant as Sherwin-Williams attempts to make the firm respond to its discovery requests.

According to the online docket for the Cuyahoga County Court of Common Pleas, Sherwin-Williams has filed a motion to compel the firm to respond to written discovery and deposition requests. Motley Rice, which filed lawsuits against Sherwin-Williams and other paint companies over lead-based paint, allegedly obtained privileged documents stolen by the company from a former employee.

According to a Jan. 31 order, Sherwin-Williams is filing a supplemental brief in support of its motion to compel Motley Rice's answers. Some of the case, which could have an impact on the pending nomination of Motley Rice attorney Jack McConnell to a federal judgeship in Rhode Island, has been filed under seal.

The Wall Street Journal mentioned the case in a recent editorial. McConnell 's nomination was recently approved by an 11-7 vote of the Senate Judiciary Committee, and the matter will now go to the full Senate.

"In response to written questions from Arizona Senator Jon Kyl in May 2010, Mr. McConnell told the committee he wasn't very involved in the lead paint case, was not familiar with the documents in question and had no reason to believe he'd be one of the defendants in the Ohio lawsuit. In deposition testimony in September 2010, however, his memory was suddenly refreshed," the editorial says.

"He was the first lawyer in his office to review the documents, signed a brief which incorporated portions of them and even helped write an article about the information."

Because of his "changing story," the WSJ doesn't feel he is worthy of a spot on the bench.

McConnell and Motley Rice's Rhode Island office represented several states and municipalities in the lead paint litigation, which alleged paint companies had created a public nuisance by manufacturing lead paint before its federal ban in 1978. Public nuisance claims have no statute of limitations, like product liability claims do. The suits were largely unsuccessful.

Along the way, Sherwin-Williams claims, Motley Rice obtained a PowerPoint presentation given by the company's attorneys to its board of directors. The presentation outlined litigation costs and possible coverage by its insurers.

The company said the presentation was protected by attorney-client privilege, but Stephen Walker met with Motley Rice at Cleveland Hopkins Airport in 2006 to hand over the presentation. Walker had been laid off from his job in 2005 and had formerly assisted company officers, attorneys and executives with technical and design aspects of PowerPoint presentations.

Motley Rice did not notify Walker that it could not receive documents protected by privilege, the company says.

A trial was scheduled for last year but it was postponed. No new trial date has been set.

Sens. Sheldon Whitehouse and Jack Reed recommended McConnell to fill a vacancy in U.S. District Court in Rhode Island last year. Whitehouse is a member of the Judiciary Committee.

"Jack McConnell is a brilliant legal mind and an outstanding community leader. We believe he possesses the experience, intellect, and temperament to be a great judge on the U.S. District Court for Rhode Island," a statement released by the senators said.

Whitehouse, then the attorney general, hired McConnell and his firm Motley Rice to file a lawsuit against the former makers of lead paint in 1999.

The state Supreme Court unanimously struck down a verdict for the plaintiffs in 2008. Sherwin-Williams says Motley Rice produced the part of the PowerPoint presentation concerning litigation costs when the company argued the plaintiffs should be liable for its attorneys fees.

After Whitehouse left the Attorney General's Office, McConnell and his wife pumped $12,600 into his campaign fund. Whitehouse took office in 2007.

Since 2001, the McConnells have given Reed $13,200, including $8,800 for his 2008 re-election campaign.

McConnell also represented some states in their lawsuits against the tobacco industry. His work, and the work of other private attorneys, led to the 1998 Tobacco Master Settlement Agreement. It has an estimated worth of $246 billion over its first 25 years and allows for annual payments made to the attorneys who litigated the case.

A post by Judicial Watch says McConnell will receive between $2.5 million and $3.1 million annually until 2024 as a result of the settlement.

Through the years, he and his wife have given more than $600,000 to the Democratic Party and its candidates, including Obama. Obama nominated him in March 2010.

The Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, is one of the groups opposing McConnell's nomination. The ILR owns Legal Newsline.

From Legal Newsline: Reach John O'Brien by e-mail at

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