Chapter 25 – Lets Recount the Evidence Arbitrator C did not consider

We are coming to the end of our analysis and need to now pause and summarize the evidence we presented and which C did not give weight to. And remember that in every case element we presented 3-4 witnesses compared to only M’s testimony.

First, my email & letter terminating M. If considered M has no case because he was terminated before the complaint. Two experts, the email, the computer on which it was sent, the forensic reports supporting the email sent date and three additional corroborating witnesses. C says no.

Second, M destroys his personal computer on which he received email. That’s considered spoliation of evidence and should have resulted in a conclusion that M did receive the email terminating him. C says that Rote it is not ok for you to destroy evidence, which we did not, but its ok for M. No negative inference.

Third, M claimed that his business emails from May 12, 2003 thru November 12, 2003 were on the 60 gig hard drive. Our experts and their expert disagreed and concluded M lied about that. That’s particularly important because of point two, destroying his personal computers. C says Rote you cannot lie but its ok for M to. Not considered.

Fourth, M claimed there was no Visual Foxpro executable files nor stored procedures on the 60 gig hard drive. None were found on the 60 gig hard drive. He claimed he recreated the programming every day. Such files were found on the 120 gig hard drive, and in an earlier zip file sent to me. Those files did not work and the 120 gig hard drive was reformatted. Three witnesses testified that he must have had programming to do his job daily. C says M did not withhold our property and therefore the damage caused when we went down was not his fault.

Fifth, M claimed that the 120 gig hard drive failed. However the experts agreed that is was fully functioning and was used to store movies, music and other personal property of M. C did not give any weight to M’s conversion of our property to his own personal use.

Sixth, M claimed that the 120 gig hard drive was stored in a fireproof safe and at some point he reformatted it to protect the sensitive data on it. Our experts concluded that there had been client sensitive information on it, but M was not protecting it. He was in fact using a share file site exposing confidential information to hackers. And he reformatted the hard drive the day before he gave it to me. Crow gave no weight to these lies told by M.

Seventh, during cross-examination M admitted that he never conveyed to his Albany attorney that he needed to assert we were engaged in criminal behavior, only inappropriate behavior. The essence of his lawsuit was that he was fired for filing a criminal complaint with the ODJ. He provided no evidence. The complaint was dropped.And of course her was fired before the complaint but before his last day on the job. His attorney admitted it was a complaint to allow him to keep his job. Crow gave no weight to that.

Eight, the very evidence he claimed to have received in an email supporting this claim of inappropriate behavior he likely created. He did not provide the email. And his computers he destroyed. And we had three witnesses testify that we knew nothing of the spreadsheet. The spreadsheet showed that we wrote off time, which we would do. Nonetheless the person he claimed created the spreadsheet did not testify and for a long time he refused to identify him. C treated the spreadsheet as credible, but discounted M’s testimony that he did not at any time claim we were engaged in criminal behavior. That’s plucking evidence to support C’s goal. This was so ridiculous.

Ninth, we presented evidence of ex-parte contact between C and Marshall, M’s attorney. And we filed a complaint with the Bar Association. It did not go anywhere. They rarely do.

And of course there is more. Much more like M setting up a competing business while our employee. How much longer were we really going to employ M after that? Well not much longer, but as it turns out it was too long.

In each and every category we provided evidence and in most cases expert testimony that M was lying, had destroyed evidence to meet his needs and ultimately admitted we did nothing warranting a complaint let alone a criminal complaint. And yet he prevailed. Or did C prevail? Or did someone else prevail?

So what does this tell us? Well there was a lot more going on behind the scenes apparently. This case was not decided on the evidence. It was rather decided on other unrelated things or so it appears. That speaks very poorly of Bill C and Schwabe and the Oregon State Bar. Bill C won an award just after he recused himself in our case. See it here.Schwabe’s Bill Crow Receives Owen Panner Professionalism Award.  As I have previously noted however this may well be a case where the forensics became confusing to him and he gave more weight to Marshall as a former partner than he did to us. That’s the danger when such a defined conflict is not disclosed. It’s completely feasible that even with factual acuity, the emotion of being challenged on the conflict carried more weight than the evidence. That makes arbitrator C a bad arbitrator, even though I believe he is a very good man.

The Rules of Evidence appeared to not be in play here. The Featured Image is of a 3 book series written by Robert E. Jones and others. Perhaps C needed to read this.

Don’t Arbitrate!


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