Motley Rice appeals discovery order in theft case

By John O'Brien | Jun 29, 2011


CLEVELAND (Legal Newsline) - An Ohio judge has ordered the law firm Motley Rice to respond to certain discovery requests from Sherwin-Williams, which is alleging the firm stole privileged documents from it.

Sherwin-Williams' motion was granted June 1, and Motley Rice filed an appeal of that decision two weeks later. The appeal will put on hold Motley Rice's motion for summary judgment, filed June 2.

The discovery dispute had held up the case for months. Sherwin-Williams requested communications between former employee Stephen Walker and his former lawyer. Much of the case has been filed under seal.

Current federal judge Jack 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.

Sen. John Cornyn, R-Texas, called McConnell a liar during the confirmation process. McConnell's responses to questions about the lawsuit didn't add up, he said.

"In 2010, in his answers to written questions from the (Senate Judiciary Committee), Mr. McConnell told members, that 'I would not say I was familiar with the documents in any fashion.'

"Only a few months later, in September of 2010, this same nominee gave a deposition in an Ohio court where he testified that he was the first attorney at his firm to review the documents in question...that he had drafted a newspaper editorial citing information that had come from those documents and that portions of those documents were incorporated in a brief filed under his signature.

"Despite this obvious contradiction and given an opportunity to correct his misleading statement, Mr. McConnell unequivocally stood by his original statement to committee members."

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