Transcript Tuesday #3

This week for Transcript Tuesday I'm going to do something a little different. As I did twice previously, I focus on the trial transcript for the case of Lea Lakeside-Scott vs. Jann Brown and Multnomah County, which took place before the Honorable Michael W. Mossman for the United States District Court for the District of Oregon, from 16 November 2004 to 18 November 2004.

The full transcripts can be found archived in plain text or in Adobe Acrobat formats in the Lie Factory's archives.

The following section takes place in open court, but the jury has not been called in. It's near the beginning of day 3, the last day, and earlier in the proceedings Judge Mossman was urging counsel for the plaintiff, George Fischer, and counsel for the defendants, Jenny Morf and David Blankenfeld, to try to keep things moving.

The defense is preparing to call to the stands Monna Hogue, who was Ms. Lakeside-Scott's direct supervisor prior to Ms. Lakeside-Scott being terminated. In the three years since that termination Ms. Hogue has contracted a neurological disorder, gone on sick leave, and was terminated almost a year later.

As we begin, Judge Mossman asks counsel for the defendant:

THE COURT: Are you prepared to call this witness?

MS. MORF: We're ready to call this witness.

MR. FISHER: I am objecting to the appearance of the witness, Your Honor, given the delay in my accessing this witness, and that the period of time I did have available that you kindly extended to me was taken up in some discussion in whether or not county counsel represented this witness, and they are asserting an attorney-client privilege in this matter. I think that's a specific misstatement of the law; that the Oregon Bar has issued opinions specific to this point, saying that public employees, even if they were at management level, are not represented by the County even if they were part of the decision-making process.

And so I was not able and not permitted to make the inquiry that I wanted. Questions were taken out of the room so that I could not hear the discussion between counsel and the witness. And so I feel that the conduct up to this point in anticipation of this witness is prejudicial to my client, because I have not had a chance to adequately, from day one in this case, to have access to this witness, and because she is a key fact witness, for the jury to decide about whether or not there was an exchange authorizing my client to access these documents is extremely prejudicial to my client. And so for that reason I would move to strike the witness.

MS. MORF: Your Honor, with regard to this witness, Mr. Fisher just ended the meeting shortly, and he said it was a waste of time and he believes it's a waste of time because Ms. Hogue isn't going to say something that furthers his client's case.

With regard to the attorney-client privilege, I understand that as a matter of course employees who are no longer employed by the County are not automatically entitled to the attorney-client privilege. However, that does not mean that county counsel cannot represent individual employees who no longer work for the County who are being asked to engage in matters because of their employment as a manager with Multnomah County. And that's all I'm doing here.

Mr. Fisher had the opportunity for additional questions, and he told Ms. Stephens that it was a waste of time and he didn't want to continue. So, I would also note that Mr. Fisher had the opportunity to give written deposition questions to Ms. Hogue. He did so. There were 56 questions with several subparts, and so probably he had over 200 questions. He also had the opportunity to do follow-up questions, but he didn't do it.

So, I mean, the fact that at this point he is not happy with the testimony that Ms. Hogue is about to give, I don't feel that that should not allow her to testify.

THE COURT: I'm going to allow the witness to take the stand. I understand Mr. Fisher's position. It's not that he's not happy with the answers, he is quite understandably not happy with not having had a true chance to depose this witness before she takes the stand. So we'll call her on the chance that I'll hear more about this later, since we've -- we're wasting the jury's time right now, and strike the whole testimony. I do feel there's a serious issue about whether she is taking the stand in a way that has allowed him a fair opportunity to prepare for the testimony, and it may well be also that if she can't communicate through the process of cross-examination, that her inability to communicate through cross-examination would affect whether I allow her direct examination to stand.

With that in mind, we can call the witness.

The county was attempting to assert attorney-client privilege for a former employee of the county, a manager.

Not being a lawyer myself, I'm not certain if that is an appropriate assertion for county counsel to make. However, one of Lea Lakeside-Scott's defenses was that Monna Hogue had directed Lea to assemble the documentation that showed management abuse of email, and other abuses of the public trust.

As I have demonstrated in the past, I believe Multnomah County management uses intimidation as a management tool. I'm speculating that Multnomah County intimidated Monna Hogue into changing her testimony to help the county and to weaken Lea's case.

When the jury was faced with a monolithic response from management who had much to cover up, and an opposing but equally consistent response from the staff who had much to lose simply by speaking up in the face of such intimidation... Deciding between the two became an issue of credibility. Who does one believe?

As noted before, the jury believed Lea and her witnesses. The county's intimidation tactics failed in this case.