Justice Pierce’s opinion in Eaton v. Frisby does something remarkable: shifts a lot of the spotlight away from Eaton’s use of Ed Peters to improperly influence Judge Bobby DeLaughter.
Peters does not even enter to picture until page 11 of the Court’s opinion. By this point in the litigation, Eaton was already on the ropes after Special Master Jack Dunbar concluded that Eaton’s discovery responses were truly false in an intentional effort to mislead Frisby.
Justice Pierce does a great job of portraying Eaton’s efforts to hide the fact that it was paying former Frisby employee Milan Georgeff to help Eaton in the case. Eaton and Mike Allred gave the Frisby lawyers the run-around for a year over the Georgeff agreements (Eaton was concealing one of two) with a letter from Eaton’s counsel with the following awesome quote:
We have made a good faith search for responsive documents, and have produced the documents we have located. Please review our supplemental discovery response dated June 10, 2005…We are not trying to hide the ball, as you seem to believe, but have not found anything more. (emphasis added).
By “we are not trying to hide the ball”, I presume Eaton meant: “we hid the ball. Good look trying to find it.” Ironically, one of Eaton’s defenses now seems to be: “hey, they knew we were hiding the ball.”
Significantly, Eaton never produced its hidden agreement with Georgeff in the Mississippi litigation. Frisby obtained the agreement from Georgeff in litigation between Frisby and Georgeff pending in North Carolina. Or as Eaton’s hide-the-ball lawyer probably thought: “oops.”
Caught cheating, Eaton doubled down on sleaze by hiring Peters. Allred described Peters as: “the one person who is the closest possible associate of Judge DeLaughter.” Or was we lawyers say, someone who should have been on DeLaughter’s recusal list.
The Peters-DeLaughter portion of the case is more well known. Peters conducted improper ex parte communications with DeLaughter on Eaton’s behalf, including getting DeLaugher to replace Jack Dunbar with Larry Latham as special master. Latham smelled a rat immediately, resigned as special master and reported a bizzare phone call from Peters to the court.
DeLaughter recused himself from the case, then got indicted and went to jail. Peters rolled on DeLaughter and walked.
This case has been going on for so long it’s easy to lose sight of something important. Something I don’t think the Miss. Supreme Court over-looked. Frisby was on its way to getting completely railroaded by DeLaughter, Peters and Eaton. If not for Joey Langston disclosing the Peters-DeLaughter sleaze to the feds in the Scruggs-gate litigation, it was going to all go bad for Frisby in Hinds County. Eaton was going to win big–DeLaughter was going to make sure of that.
Significantly, Eaton never came clean. It got caught, repeatedly. There was no moral compass in Eaton’s legal department. Eaton cheated over and over again and indignantly claimed that it was a victim every time it got caught. You read some of the internal notes in the legal department and it’s like the attorneys did not even understand that what they were doing was wrong. Even now, it’s unclear whether Eaton even gets it.
Judge Swan Yerger took over as presiding judge and appointed Jackson attorney David Dogan as special master. When Dogan and Yerger got through with Eaton, its claims against Frisby were dismissed and it owed Frisby close to $1.6 million in costs and fees.
At this point its worth reminding the reader that all Eaton’s sleazy actions revealed in Judge Weill’s opinions were not considered by the Supreme Court. The issue before the Court was Judge Yerger’s dismissal of Eaton’s case and sanctions. The new documents were provided to the Court, but the opinion states: “we decline to take these additional documents into consideration for purposes of this appeal.”
The Court concluded that the record evidence “fully supports” Special Master Dunbar’s conclusion that Allred and Eaton submitted an interrogatory response that was intended to be inaccurate and misleading.
As for Eaton’s claim that it was a victim of the Peter-DeLaughter communications, the Court summed it up nicely:
To say that Eaton was a hapless client in this instance goes beyond the realm of logic and credulity.
Reader note: The best evidence that Eaton was not a hapless client wasn’t even before the Court–it came out under Judge Weill.
The Court’s opinion heavily quotes Special Master Dogan’s report to Judge Yerger, and concludes with a tip of its hat to Dogan while affirming all Judge Yerger’s dismissal and sanctions:
As Dogan sharply concluded in his August 2010 R&R, this misconduct prejudiced not only Frisby, but ‘has prejudiced the administration of justice and the integrity of [its] proceedings.’
This was a shellacking. Eaton was never going to get an opinion that what it did was ok, but seemed to have hopes that it might get a stay of execution based on procedural technicalities. But the Court spoke with one voice in its unanimous opinion.
The most fascinating issue in this case to me as a lawyer is why Eaton hasn’t made the case go away. The writing was on the wall years ago when I first started blogging about this case. It was going to end badly for Eaton.
I don’t know what happened with those ex-employees. Maybe Eaton was wronged and started out with a great case. It doesn’t matter. If you get caught cheating in litigation you are going to lose. The fact you think you had a great case is beside the point. Sometimes you have to give it up in a case even though you are convinced you should win.
Rather than cut its losses, however, Eaton continued to dig its hole. Why?
Eaton is that type of mega-corporation that is used to being the windshield. When Eaton found out it was the bug in this case years ago, it did not know what to do.
Poker analogies are particularly fitting to litigation. Here, Eaton didn’t know when to fold. Instead of getting out, it hired new lawyers–great lawyers, in my book. But Eaton’s current legal team was dealt a losing hand. Not even Phil Ivey wins every hand. You have to fold when you are beat. Eaton hasn’t.
Of course, we don’t have the whole story from the Eaton side. Perhaps there are reasons that Eaton can’t get out of the case. That possibility just makes the whole thing more fascinating. I for one will be disappointed when this case is over. It’s just so interesting.