Is It a Cover-Up in Paint Case?: BigLaw Firm Gets Hot-Headed Over "Stolen" Document

, The American Lawyer

We all know that plaintiffs lawyers are a little more freewheeling than folks on the defense side of the aisle, but it's rare we hear the kind of words Fidelma Fitzpatrick of Motley Rice has for Jones Day, even from the plaintiffs side. "Like 3-year-olds in the sandbox -- never have I dealt with more unprofessional attorneys," she told us. "It's pathetic. ... The legal profession shouldn't operate this way."

Fitzpatrick was responding to a complaint Jones Day filed on Friday, accusing Motley Rice of abetting and attempting to profit from the theft of a confidential boardroom document from Sherwin-Williams in the course of the long Rhode Island lead paint litigation. (You'll recall that the Rhode Island Supreme Court last July overturned the multibillion-dollar jury verdict against paint manufacturers that Motley Rice won on behalf of the state.)

"Motley Rice intentionally and wrongfully obtained and kept without Sherwin-Williams's knowledge or permission its documents, including the October 2004 confidential board slides," the complaint says. "Motley Rice has acted with malice and conscious disregard of Sherwin-Williams's legal rights." (Hat tip to Courthouse News, which first posted the complaint.)

But here's the thing: Jones Day had failed to get the document back in litigation in Rhode Island, and, according to Motley Rice's Fitzpatrick, was in the midst of "good faith negotiations" with Motley Rice over the return of the document when the firm filed the Ohio suit. "It's such an innocuous document," Fitzpatrick told us. "We figured if they want to see what the document is we'd just show them."

The document first came to light in litigation between the paint companies and the state of Rhode Island over whether the state should pay defense costs. In opposing the defense motion to compel it to pay costs, Rhode Island attached to a memorandum part of a 2004 PowerPoint presentation that a Sherwin-Williams in-house lawyer made to the board on the issue of insurance coverage for lead paint defense fees.

Jones Day immediately claimed the document was protected by attorney-client and work-product privilege, and demanded to know how Rhode Island's lawyers from Motley Rice had obtained it. (There's a reference in the Ohio complaint to a secret 2006 meeting at the Cleveland airport between Fitzpatrick and the former Sherwin-Williams employee who prepared the PowerPoint slides.) When the state said it wouldn't disclose how it got the document, Jones Day filed a motion for a protective order.

In a March 25 ruling on the motion, Rhode Island Superior Court Judge J. Silverstein declined to grant the protective order. Instead, the judge, citing concerns "about the apparent disconnect between Sherwin-Williams' characterization of [the document] and -- as highlighted by the state -- the facial appearance of the document itself," ordered the state to be allowed to conduct discovery on whether the document is privileged. Only if discovery revealed that the document is privileged, Silverstein ruled, would Sherwin-Williams be permitted to investigate how Motley Rice obtained it.

Fitzpatrick told us that Motley Rice considered the fight over the document to be such "a tempest in a teapot" that it offered to discuss its return with Jones Day. "Discovery seemed like such a complete and total waste of time," she said. "But instead of dealing with the issue in a courteous and professional matter, they chose to sue."

The American Lawyer called Jones Day partner James Wooley to discuss the case, but he told us he needed to consult with his client before commenting.

This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.

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