As noted in many preceding chapters, our IT managers’ withholding of our programs caused us to shut down. It cost us dearly. It cost our employees, some 175 of whom had to be laid off for part of a week just before thanksgiving.
The evidence we produced on this is immense. I and two other executives testified as to the shutdown, its cost in terms of revenue and replacements costs to generate the software. I testified as to our inability to find the programs and where we looked for them. I testified and produced emails to M asking him to help after the shutdown, with the identification of the software location on the computer he returned to us and on our servers. Then Jamie Gedye, the consultant we hired, testified that he flew out from Chicago and looked for the software, the code, the programs, etc. and could not find them even with the help of Chris (our assistant manager). Jamie testified that they looked for the programs on M’s former computer, the windows servers, the dialer servers, other IT computers and the archived files. The files could not be found. Jaime testified that Chris could not find the files nor did Chris know how to generate the reports. Jaime testified that he regenerated the programming so that we could generate the reports daily and testified that the programs could not be generated daily to produce the reports. One of my clients testified that we were unable to do any work for them for over a week because of our inability to write the client reports. In addition we had forensic reports from two forensic experts concluding that the database programs were not on M’s computer nor on any of the other computer I previously identified. All in all seven witnesses, forensics reports, Foxpro experts, etc. None of the computers were destroyed.
M testified that there were no programs, that he was not responsible for the shutdown. Chris Cox however has confirmed that this is judt not true.
The surprise witness was Chris Cox, our former assistant manager, who testified that we did not shut down. That we did not shutdown! He further testified however that there were Foxpro programs that the IT department regularly accessed, a contradiction to Max’s testimony. Testifying that there was no shutdown in spite of the massive amount of evidence to the contrary, including emails to and from Chris while we were shutdown, was a challenge to our position that M destroyed the software. I don’t think an IT assistant manager forgets that we shutdown, that it could have led to his demotion and did lead to his ultimate departure. So now they have one witnesses questioning whether there was a shutdown, but offering conflicting testimony about the existence of our programs. M did not dispute, in his testimony, that we shut down. Chris Cox’s tesimony is here.11-5-10
Whether Chris lied about the shut down is for you to decide. It would have been more consistent for him to say that he did not remember. He also referred to programming, executable files he claimed we had on the servers noting that he had used those files many time. And yet they were gone. The overwhelming record shows the files were not there. Did he forget that too? His admission that we had at one time these programs to move data around, create tables and extract reports was valuable but on balance I think Marshall and M convinced him to lie. He could not remember the names of the people who worked there but knew they had. He didn’t remember Gedye at all and he worked with him for a week. It would be a hard thing for an IT professional to admit to lying to cover up the damage that M caused, but that is the logical truth.
The arbitrator ultimately concluded that the shutdown may not have been caused by M, that Chris testified that programs existed and should have been found by Jaime Gedye. Chris also testified that he regularly used these programs. What was not disputed by the arbitrator was that there was a shutdown. Instead he concluded that we destroyed evidence when we continued to use the servers and other computers, presumably also the $200,000 dialer, after the shutdown. One of the more bias conclusions by the arbitrator was that we had deteriorated the forensic results on missing Foxpro programs because we continued to use the computers, in spite of the fact that we had forensics work done, forensic images taken and expert reports issued the first week after M destroyed the software. But he did not by contrast hold M to the same conclusion when M simply destroyed his emails, destroyed his computers and reformateed a hard drive owned by us (a hard drive containing Foxpro programs). M’s attorney issued the litigation hold. M’s fiancee was an attorney at the time.
I believe the arbitrator had the mental acuity to understand the foensics and had to overcome the shutdown attribution to M in order to otherwise find in his favor, a stretch of illogic on unsupported facts. We were fearful that the arbitrator’s compromised independence would lead him to set the facts aside, but calculated that once his lack of independence was raised he would not do anything as blatant as to suggest that M was not responsible for the shutdown. We were shutdown because we could not generate reports for our clients. We could not because our programs were simply not findable. Whether this was a unilateral act by M or one in collusion with Chris is beside the point. M, even as a conspirator, is liable.
I don’t think this was confusion by the arbitrator. I think it was anger for calling him out. The reasoning was weak but calculated. The perjury by M and C were easily determinable.
I have often wondered why we did not file a summary judgment motion on the shut down. That should have eliminated M’s claims and solidified ours. It would have eliminated years of work and hundreds of hours of forensics.
We will have to ask Jeff Edelson and Scott Cliff that question. I remember Scott believing that the lack of communication between me and M after his termination in October was disconcerting. That however was not something I was called to explain nor do I believe it the least bit credible to give something that subjective merit in light of the evidence we had.
We had evidence. Why wasn’t it considered? Arbitrator Bill, why wasn’t it weighed? Why wasn’t our evidence comprised of emails, forensics, the testimony of 6 independent witnesses, the testimony of 3 witnesses working for us, all taken together more compelling than the sole testimony of the defendant who destroyed his computers, his emails, our software and our hard ware?
Jaime Gedye’s testimony is here. Gedye
Chris Cox testimony is here. Chris Cox
Justin McAnn on the existence of Foxpro programs on the hard drive Max reformatted can be found here.MCann
McAnn’s Linkedin address is here. You will note that his website urls do not work and he has provided no other contact information. Much Like Max, they are ghosts.
The Foxpro programs on the hard drive Max reformatted follow. These same programs were not on the active hard drive he returned on 11/13/03. There is no record of them on the active, 60 gig hard drive, per McAnn testimony and our forensic reports.
All of the above, but a few, were dated in May 2003 when the hard drive allegedly crashed. The others were dated 11/12/03, the day before he turned over the files on his last day.
Our forensic report on recovered files from the active hard drive M returned are here. 60 GB Hard Drive Recovered Files Relevant Dates. Not one Foxpro program.