Portland Oregon, January 18 2018
Civil Trial of Author Exposing Attorney and Arbitrator Corruption
JURY VERDICT OF $1 Million Awarded Plaintiff
Zweizig v Rote, 3:15-CV-2401-HZ
Some years ago now the author, Tim Rote, participated in an arbitration between a former employee and one of his BPO companies. The former Information Technology Director, Z, withheld and destroyed evidence critical to the operation of Rote’s company and as a result of Z’s cybercrime the employer shut-down for 10 days just before Thanksgiving, laying –off more than 150 employees. Just before the arbitration hearing in 2010, Z replaced his counsel, an attorney by the name of Linda Marshall. Neither Marshall nor the arbitrator, Bill Crow, disclosed that they were partners together at Miller Nash for seven years and Marshall had also worked there for seven years before becoming a partner. After the employer brought the disclosure failure to the arbitrator’s attention, the arbitrator resigned, which Marshall challenged and implored Crow to reinstate. He did and shortly thereafter refused to consider the employer’s evidence of Z’s cybercrime and termination before Z’s complaint to the ODJ.
The arbitrator was required to disclose a current or past relationship with a party or counsel under the Oregon and American Bar Association Code of Conduct. It is a more pronounced issue in arbitrations because they are more difficult to appeal. And failure to disclose a past partnership relationship generally results in the arbitration being vacated because the lack of disclosure is itself evidence of bias. Plaintiff’s former employer sought to vacate the award to Z because the arbitrator found all witnesses credible but then dismissed all of the witness testimony and forensic reports offered as evidence by the defendant’s employer. He even dismissed Z’s forensic experts report because it supported the claims of Z’s former employer, a company owned by Rote. The arbitrator admitted to Rote just last year to being angry after Rote pointed out to the arbitrator his duty to disclose and failure to do so.
Defendant Rote started the blog about one year after Z’s former employer was closed and shortly after it was dissolved. A blog is media and recognized as free speech published in a public forum.
During the jury trial plaintiff Z alleged that the 96 chapters of the blog took away from his identity, causing emotional stress, as some of the blog posts referenced him and his prior bad acts, some of which he refuted. Defendant put on evidence during the trial that only 10 of the blog posts referenced evidence from arbitration, was necessary to show the abusive acts of Marshall and that arbitrator. The evidence presented in the blog include forensic reports, testimony and other material evidence the arbitrator dismissed after he recused himself and then rejoined as arbitrator.
Shortly after the plaintiff notified the defendant that he wanted the blog taken down defendant asked the plaintiff what he needed in redactions, such as his name, but plaintiff refused to mitigate and proceeded to file a lawsuit. Plaintiff has a duty to mitigate and this evidence was supplied by the defendant in this case. Therefore Rote took it upon himself to mitigate search traffic references by rebranding the blog, redacting Z’s name and hiding the blog from search engines.
At issue in the trial was whether Defendant Rote was acting on behalf of Z’s former employer, a company Rote owned. Rote put on evidence that the employer was shut down when he started the blog (secretary of state documents), owns the blog and could not conceivably be working for a company out of business. Moreover that unlike a book each blog post and chapter has a unique publication date and that date is referenced at the bottom of page of each post supplied as evidence by the plaintiff. That evidence was not refuted by the plaintiff. The jury instructions were unclear and defendant asked that the jury be instructed to identify the date of publication by reference to the bottom of the page and that request was denied.
Plaintiff was allowed to put on a limited amount of evidence to re-litigate issues decided but favorable to him in the arbitration. Defendant by contrast wanted to put on forensic reports but was denied that opportunity to impeach the plaintiff because it was re-litigating. Regardless, plaintiff could only sustain its claim by convincing the jury that Rote was acting on behalf of a closed and liquidated company.
And they did so.
During the pendency of the litigation, defendant Rote set the blog to be hidden from search engines and, given the redaction of the plaintiff’s name, the google search results offered as evidence by both parties showed no activity as to the plaintiff.
The Plaintiff claimed he viewed the blog hundreds of times tirelessly to see if anything about him had reappeared. However the blog data shows that he looked at these 10 specific and relevant chapters once in April 2017 and his attorney looked once in June 2017 when he printed those blog posts. There were two views on average for each of these posts in all of 2017. This information should not have been necessary at trial, was not offered as evidence at trial, but rather withheld to impeach and for appeal. The attorney for Z, knowingly assisted Z in putting on false evidence.
The implications are broad since the jury was not required to make specific factual findings on each of the issues in the case. It is clear the jury ignored undisputed evidence that would, if considered, have resulted in a verdict for the defendant. That undisputed evidence is the secretary of state documents showing the administrative dissolution date of the company and the publication date of the chapters.
The Bar Association actively engaged to support plaintiff counsel during the trial, including refusing to provide documents requested by the defendant under the freedom of information act and a subpoena to testify. A number of the blog chapters are dedicated to “When the Bar Lies” based on testimony in cases defended by the Professional Liability Fund and subpoenaed evidence from law enforcement refuting the direct testimony of the lawyers involved. Attorneys are ethically bound by Canon 3.3 to not mislead the court.
When an attorney engages in unethical behavior, a complaint to the Bar Association goes to the Disciplinary Board of the Bar. During the arbitration Mr. Crow, the arbitrator, was the Portland Region Chairman of the Disciplinary Board. After the arbitration a complaint was filed against Z’s attorney Linda Marshall providing evidence of collusion to commit computer fraud, perjury and destruction of key evidence. That complaint went to Mr. Crow, who had by then ascended to Chair of the State’s Disciplinary Board. No action was taken against Linda Marshall, his former partner. That is the central theme of the blog.
Author Timothy Rote has written a blog, a novel based on his experiences with the arbitration and subsequent litigation and a documentary intended to expose the rampant decline in the integrity of the litigation process by and large perpetrated by members of the Bar and Professional Liability Fund.
Alexander Hamilton penned “I think the First Duty of Society is Justice.” That very quote is on the marble wall on the first floor of the Mark O. Hatfield Courthouse. Let it be so.
For further information:
The Blog: Cybercrime and The Fraud Triangle https://thefirstdutyportland.wordpress.com
The Case: 3:15-CV-2401-HZ
The Trial: Over For Now
Local contact: Timothy Rote
Tel.: 503-702-7225, firstname.lastname@example.org