Judge Weill’s opinion last week in Eaton v. Frisby was a doozy. Listed below are some of the key findings, followed by my commentary.

p. 14: An overwhelming majority of the documents discussed herein are documents that were clearly subject to one or more discovery requests made by Frisby.

My Take:

Read here if you doubt that this finding is big trouble for Eaton. Eaton could lose the case because of this finding alone.

p. 14: In the May, 2012 affidavits of various Eaton Employees, Eaton contends that an outside law firm, Latham & Watkins, LLP, was hired in 2011 to review certain documents, and Eaton’s discovert omissions were discovered as a result. Instead, the documents reviewed reflect that Latham & Watkins was in fact hired by Eaton in 2008, and it remains ambiguous exactly when the documents disclosed by Eaton on April 17, 2012 were discovered.

My Take:

The Court is never going to believe anything Eaton says ever again. Eaton might defend itself by saying that it was playing word games in May and that while it had already hired Latham & Watkins, it was telling the truth when it said it just hired the particular lawyer mentioned in May. 

In general, the defense of “I’m not dishonest; I’m sneaky” doesn’t fly very well. Here, it’s land locked.

p. 28: Eaton’s argument [that there was no harm] is akin to an assertion that a robber who broke into a home but walked away with nothing, or with something nominal such as a plastic pearl necklace, is not really a robber.

My Take:

That argument didn’t work for the Delta Tau Chi’s in Animal House. It doesn’t work here.

p. 29: many of the newly produced documents evidence ongoing cover up efforts by Eaton and its attorneys of the original fraud.

My Take:

One of the smartest lawyers I know always says that the cover-up is always worse than the crime.

p. 30: other documents contain additional evidence that Eaton explicitly and implicitly sanctioned and encouraged Peters’ ex parte contacts with Judge DeLaughter.

My Take:

Did I mention that the Miss. Supreme Court doesn’t like these kind of shenanigans?

p. 34–35: an email from Peters indicated that he had spoken with DeLaughter and knew how he would rule on the Plaintiffs’ Motion to Lift Discovery Stay.

My Take:

It’s ok Eaton. No one believed your “we didn’t know” argument anyway.

p. 39: this documents [handwritten notes] indicates Peters only relayed his improper ex parted communications with certain team members for Eaton. [the ones from Milwaukee and Eaton’s in-house lawyers].

My Take:

What? MS lawyers were so corrupt you couldn’t trust them to keep the secret about the improper communications with the judge? "You Mississippians are so unprofessional."

p: 45: “It is doubtful, given Peters’ limited civil litigation experience, that he would be preparing an proposed findings on behalf of Eaton.”

My Take:

This is an important point. The notion that Peters had a major role in the case outside of his relationship with DeLaughter is preposterous to anyone who has worked on major civil litigation.

p. 51: “this e-mail represented one of the more egregious examples of Eaton’s discovery failures. The statement in the e-mail ‘and God knows what Ed’s involvement in all of this is’ is a direct acknowledgement of concern about Peters’ involvement in the litigation.”

My Take:

God, Langston, Balducci, etc…

p. 56: Schaalman states in and e-mail to Peters: “We need to discuss how either I can win this guy [special master Jack Dunbar] over or how we can convince the judge to appoint a different special master.” One month later Judge DeLaughter sua sponte removed Jack Dunbar as special master and appointed Larry Latham. [Latham quickly smelled a rat, resigned and reported the matter to the Court].

My Take:

In my opinion this is the worst one for Eaton.

p. 66: Eaton contends that Peters did legitimate legal work on its behalf, but it is rather dubious that renowned civil litigation attorneys would take wholesale brief-drafting advice from a career criminal prosecutor, such as Peters, unless Peters had inside knowledge as to what the judge requested for inclusion in the brief. 

My Take:


p. 83: Eaton lawyer billed time reviewing order from Judge DeLaughter that was not entered until the next day.

My Take:

It’s possible that the lawyer here was one of those defense lawyers who is a month behind on his time sheets and got the date wrong when he went back and entered his time. A good lesson to defense lawyers on the importance of entering your time the same day as the work performed.

p. 83: Eaton in-house lawyer’s note: “Ed P. said DeLaughter’s opinions may not be respected by Yerger. He’s lazy…”..” MS seems so corrupt..Do we need to add someone to the team who knows Yerger?”

My Take:

This is so funny. Occasionally in life we are confronted with statements of such monumental hypocrisy, that we are left speechless. This is one of those instances.

p. 120: Peters had an unsigned copy of a DeLaughter opinion that could have only come from DeLaughter.

My Take:

Come on Ed. Didn’t you see Goodfellas and Casino? You’re supposed to at least make it hard for the good guys to make a case.  

Final Take:

Every time something else happens in this case I say to myself that Eaton has to make it go away now. But they never do. And it just keeps getting worse.

Don’t think that it can’t get worse for Eaton here. It can. People on the Eaton side can start talking about who knew what.