Chapter 112 – What Does Arbitrator Independence Mean?

For purposes of this article I will be citing numerous paragraphs and analysis from a paper published by Boston University School of Law entitled “Arbitrator Bias” and written by William Park. See Arbitrator Bias.

“Arbitrator conflicts of interest usually fall into one of two categories: lack of independence and lack of impartiality. In common usage, independence refers to the absence of improper connections, while impartiality addresses matters related to prejudgment. The common assumption is that an arbitrator in…disputes must be both impartial and independent.”

In this Chapter we will address questions of independence and then identify the arbitrator’s failures.

“Lack of independence derives from what might be called problematic relationships between the arbitrator and one party or its lawyer. Often these result from financial dealings (such as business transactions and investments), ties of a sentimental quality (including friendships and family), or links of group identification (for example, shared nationality and professional or social affiliations). Individuals should decline appointment if they have doubts about their ability to be impartial or independent, or if facts exist such as to raise reasonable concerns on either score.”

“Even if no special relationship or financial link exists with either side, a second category of concerns will arise if an arbitrator appears to have prejudged some matter. An arbitrator might be independent but still be a bigot, with low opinions about people of a particular race, nationality or religion…”or as in this case have an anti-business bias or even an anti-arbitration agreement. This second category is often called ‘actual bias’ and speaks primarily to questions of partiality.

In like manner, the American Arbitration Code of Ethics Provides:

One should accept appointment as an arbitrator only if fully satisfied:
(1) that he or she can serve impartially;
(2) that he or she can serve independently from the parties, potential witnesses, and the other arbitrators;
(3) that he or she is competent to serve; and
(4) that he or she can be available to commence the arbitration in accordance with the requirements of the proceeding and thereafter to devote the time and attention to its completion that the parties are reasonably entitled to expect.

An independent arbitrator is one who does not have any type of personal and/or employment relationship, nor any economic link or tie, or does not depend in any way on any of the parties.

I would argue that the past partner relationship needed to be disclosed and that it represented a lack of independence. There had been 13 years since arbitrator Crow and opposing counsel partnered together at Miller Nash and at first blush the personal or employment relationship no longer existed. There appeared to be no economic link or tie.

But in reality, there was an economic link and there was an interdependence because of Bill’s compromised cognitive skills. The economic link is that Bill and Schwabe charged close to $50,000 on this arbitration over a pronounced period of time.

In order to continue to generate income from this arbitration, Bill relied on Marshall to help cover up his dementia.

Bill was not competent to continue to serve at the time of the hearing. He probably was when the arbitration first started. But by the time he depended on Marshall to help guide him through this arbitration and make a decision based on the evidence. Marshall however exploited the faith.

On the third day of the hearing we discovered that Zweizig was recording the proceeding without giving us notice. We had many a privileged meeting in that room during breaks and it was all being recorded. We brought it to the attention of arbitrator Crow who ordered it deleted. It was at this time that Zweizig indicated it was being recorded to Linda Marshall’s computer. She acted like she did not know that. The more important part is that the arbitrator noted that “we have confidence in Ms. Marshall” to destroy the tape. Why if the arbitrator had little to no contact with Marshall would be vest in her complete confidence? See Confidence in Ms. Marshall.

Later in his opinion the arbitrator would adopt statements made by Marshall in her brief to support his conclusion. I remain surprised by these but one stands out more than the others. Marshall contended that I could not have fired Max on October 2nd as I testified and as the evidence showed. I had given Max 45 days notice, his last day being November 15th. Marshall contended that I could have not fired Max on October 2nd because on October 23rd I sent an email inquiring about him, if he was ok, given his failure to respond to emails and phone calls from a number of staff members. See page 3 Ex 505 Arbitrator Opinion. This is a facially preposterous position, but Crow adopted it. His ability to discern was impaired. No reasonable person with faculties could logically come to that conclusion.

There is much more data of course. But this is enough for now on the question of independence. I think it is clear that Crow did depend on Marshall and was not independent. He needed the help. He had confidence in her.

 

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Chapter 111 – The Class War of Multnomah County Juries

I have for some time seen a very liberal, bordering on ignorant, agenda by Multnomah County. The current answer by the County, and most of its residents, to fund deficits is to tax large corporations and then tax what they describe as the rich. This antithetical approach to economic growth and tax stability spills over and becomes an anti-business and anti-rich agenda by residents. Those residents are the juries. Juries hate business. Juries hate who they perceived to be the rich unless the party is an athlete of some renown.

This anti-business philosophy resides in the same part of the brain as racism, sexism, ableism, ageism and anti-semitism. Anti-business is a form of classism. Multnomah County leadership plays to this group to not just take action against business, but to hate business prosperity and to punish that prosperity whenever possible.

In a very recent case, Robert Trebelhorn sued Prime Wimbledon SPE, LLC and Prime Administration, LLC on breach of contract and negligence theories claiming that he was injured and damaged as a direct result of falling through a concrete walkway up to his groin at Wimbledon Square apartments in Portland. He sued for economic damages, for emotional distress and then also asked for punitive damages. The economic damages of $45,000 is reasonable. The non-economic damages of $250,000 disconcerting (what a baby).

The jury awarded punitive damages of $20,000,000. Absolutely ridiculous. The plaintiff put on evidence that Prime received estimates from a contractor identifying repairs in the range of $250,000 to $1,000,000. And Prime refused to make all of the repairs. While that was a mistake, and likely grossly misrepresented by the plaintiff, where does $20,000,000 come from? Why not a Million? Isn’t that punishment enough?

The $20,000,000 likely represents 20 years of profit on this apartment property. Juries, do you want to punish or do you want to destroy? It seems that reason is abandoned and the anti-business hatred takes control.

Other businesses are suffering from this class war. I don’t use that term without some reservation. There are a number of papers in Multnomah County dedicated to promoting a class war.  Check out http://news.streetroots.org/2018/03/16/local-strategies-fight-federal-governments-class-war. Employers lose EEOC claims 75% of the time. Probably the same in Oregon and certainly the same with Multnomah County juries.

This cannot be reversed here now. Big Business, move to another county or leave the state. Daimler, you should move. With close to 50% of Multnomah County working in jobs that are government or jobs that support government, let them have their socialism and learn the economic realities when Big Business moves. When that happens, unemployment will rise, foreclosures will go up, real estate prices will be depressed, real wages will go down, entitlements up, deficits up, infrastructure deteriorates and the list goes on.

Perhaps Amazon will show Seattle what it means to lose a business employing thousands. There should be a way to address homeless problems without suppressing economic growth.

I suspect that Prime will sell its Oregon properties as soon as they can.

 

 

Chapter 110 – Calling on The Honorable Robert E. Jones to Denounce Attorney Misconduct

In 2010 Linda Marshall submitted a document that was accepted by arbitrator Crow, that document a transcript of a status conference wherein Judge Jones recused himself from a post-judgment action. The status conference was 10 years earlier, was irrelevant to the arbitration and was offered for the sole purposes of encouraging the arbitrator to set aside the facts and find in favor of her client. More specifically, introducing the transcript was designed to prey on the fear of the arbitrator, who was then aware that because of age his cognitive skills had deteriorated and was in need of support from legal counsel to guide him in the execution of his duties. Marshall took advantage of that circumstance to the embarrassment of the arbitrator and to the compromise of justice. Neither the US District Court of Oregon nor the Oregon State Bar intervened. See Ex 567 Recusal.

During the course of the arbitration the claimant raised the Arbitrator’s and Marshall’s failure to disclose their prior partnership relationship and the resulting compromise to the arbitration. The arbitrator recused himself. Marshall told his he could not and the Arbitration Service of Portland was asked to opine. Arbitrator Crow sent an email to Marshall wanting her to make sure she submitted the Jones Recusal to the ASP. See Ex 568 Crow Email.

After the ASP allowed Crow to rejoin as arbitrator, Crow summarily dismissed the claimant hundreds of documents in evidence, the testimony of eight witnesses and the reports and testimony of three computer forensic experts. Crow found in favor of the Respondent awarding him back wages.  The Respondent had withheld and destroyed computer programming leading to the shut down of the Claimant (former employer).

In 2011 Linda Marshall submitted a declaration in the confirmation proceeding wherein she conveyed to Judge Paul Papak that Timothy Rote had filed a complaint against Bill Crow for Crow’s failure to disclose his prior partnership relationship with Marshall. A complaint was also filed against Marshall for failing to disclose her prior partnership relationship with Crow and for subornation of 17 Counts of perjury and evidence destruction. The declaration was submitted in support of confirming in part and vacating in part the arbitration award. Marshall wrote “After Crow issued the Arbitration Award, Rote filled a complaint against Crow with the Oregon State Bar. I have checked with the investigator handling the complaint, and the Bar complaint against Crow is still under investigation.” There is no way Marshall would have known about such a complaint without Crow telling her. Crow ascended to Chair of the Disciplinary Board of the Oregon State Bar shortly thereafter. See Ex 569 Marshall Declaration.

In 2014, The Jones Recusal was submitted ex-parte to Judge Elizabeth Weishaupl, Denver State Judge, just before a trial involving the former Claimant (in the arbitration) NDT and Silicon Valley Bank. I only recently discovered this and was able to confirm who submitted it to Weishaupl.

In spite of Silicon Valley Bank admitting to breaking into NDT’s network and destroying software (a Computer Fraud and Abuse Act Violation), Weishaupl found in favor of SVB. Prior to receiving the Jones Recusal, Weishaupl had found in favor of NDT on all pre-trial issues on Silicon Valley Bank liability for breach of contract from the break in. Thereafter, Weishaupl found in favor of SVB. The FBI investigated the break in by SVB and recommended prosecution of this cyber crime to the U.S. Attorneys Office. The U.S. Attorneys office however decided to not pursue a criminal indictment against SVB as NDT had a civil litigation (lawsuit) opportunity.

In 2015, Christiansen and Marshall contacted Judge Jones Chamber. Christiansen claimed that “After reviewing Rote’s comments contained in Chapter 19, Linda Marshall (Plaintiff’s counsel in another matter) and I contacted Judge Jones’ courtroom deputy and informed the court of Rote’s publication concerning Judge Jones, which: (1) identified Judge Jones’ physical location at a specific time and location to receive a lifetime achievement award, (2) evidenced Rote’s belief that there would be media presence at the event, and (3) commented that “[p]erhaps more often than not our legacies are not what we wanted them to be.” See Ex 570 Declaration by Christiansen.

Late in 2016 I subpoenaed the file on Christiansen’s contact with the Judge’s clerk. It turns out that Marshall and Christiansen had cited the blog but they buttressed this false concern with fabricated allegations and expunged records (which somehow they got their hands on). The presumption is that they knew their client was a cyber criminal and needed to repair his and their image.

In 2016, Joel Christiansen, a successor to Marshall in a separate lawsuit action, filed a declaration citing the Jones Recusal. Joel wrote “Attached hereto as EXHIBIT 4 is a true and accurate copy of the transcript from the March 18, 2001 Status Conference in the United States District Court, District of Oregon Case Jones v. North West Telemarketing, Inc., Case No. CV 99-990.” The citation was intended to influence the outcome of the litigation, calling on the court to consider this irrelevant evidence and find in favor of his client. See Ex 570 Declaration by Christiansen.

Judges play an important role in the enforcement of ethics. The aforementioned violations of Oregon Rules of Professional Conduct, Rule 8.4, remain unpunished and arguably had a material impact on the outcome of three separate lawsuits.

This author is calling on Judge Jones to denounce the behavior of Marshall & Christiansen and call on the Oregon State Bar to reprimand them for implicating Judge Jones in their misconduct.

Chapter 109 – The Oregon State Bar Refuses to Punish Marshall and Christiansen

I filed a complaint against Marshall and Christiansen for intentionally misleading the court, by filing a false statement in a proceeding that effected the outcome of an anti-Slapp Motion and the Oregon State Bar refused to even reprimand. See Ex 570 Declaration by Christiansen.

I filed a complaint against Marshall for participating if not orchestrating 17 counts of perjury and the destruction of evidence. The Oregon State Bar refused to do anything. See Exhibit 1 CHAPTER 90v5.

I filed a complaint against Marshall for attempting to influence the outcome of litigation by not disclosing a prior partnership relationship with the arbitrator. The Oregon State Bar did nothing. Memorandum Supporting Motion to Vacate Award.

I filed a complaint against Marshall for exploiting the arbitrator, including offering irrelevant evidence intended to influence the arbitrator. The Oregon State Bar did nothing. See Ex 567 Recusal.

I filed a complaint against Marshall for submitting to the court a declaration in which she claimed I had filed a complaint against arbitrator Bill Crow, the design of which was to influence the outcome of the Motion to Vacate. She would have to be in regular contact with the arbitrator to know this. See Ex 569 Marshall Declaration.

I filed a complaint against Marshall and Christiansen for contacting Judge Robert Jones Chamber with the design of influencing the outcome of litigation and to punish me for filing complaints with the Bar. In fact I sued them. See Rote Amended Appeals Court Reply Brief.  As previously indicated, they lied about what they said to the deputy clerk. Ex 570 Declaration by Christiansen.

I contacted the U.S. Marshals Service, sent a subpoena and received back from them what Joel and Linda really said to the deputy clerk. ER-13 Exhibit 2 US Marshals Evidence. I provided this to the BAR Association.

See my Complaint to the Bar.Rote Response 8.30.17. And I further responded. Rote Response 2.05.18.

See the email from the BAR and my email back. See BAR Email Response.

The BAR refuses to punish. What are we to do?

Chapter 108 – Pam Stendahl of THE PLF

I thought it would be helpful to the readers to see some evidence of the rejection letters sent by the Oregon State Bar PLF. In this particular case, Pam Stendahl is the attorney working for the OS Bar Professional Liability Fund evaluating the case. See Pam Stendahl Letter.

The issue is whether the attorney representing one of the defendant, a company I owned, should have filed a motion to compel arbitration before answering the complaint, or in the alternative filing a Motion to Dismiss the complaint because of the employment contract provision which contained  statute of limitations. These are very blatant acts of malpractice.

Instead of admitting to the malpractice, however, Pam decided to take a tact that I had engaged with my attorney and decided instead to answer the complaint for strategic reasons. That is bologna of course and begs a more important question as the statute of limitations. The case could have been dismissed in short order.

Section V of Zweizig’s employment agreement contains a condition precedent which reads as follows:

“…the aggrieved party must deliver to the other party written notice within 90 calendar days of the date when the dispute first arose.” A party’s failure to notice…shall constitute an irrevocable waiver of the party’s right to raise any claim in any forum…[1]

Plaintiff did not satisfy condition precedent. At no time did Plaintiff file a Notice of Intent to Mediate. Although Plaintiff argued in Doc #83 that the retaliation was ongoing he did not at any time file a written Notice of Intent to Mediate nor was there any such Notice in Evidence. The plaintiff claims would have been untimely as to Exhibits 4-10. The defendant preserved this affirmative defense and sought to enforce the provision in a motion to dismiss as soon as the court allowed.

The Contract Statute of Limitations bars claims. Although Plaintiff filed this lawsuit on December 24, 2015, under the terms of his contract and by agreement, his claims expired on December 31, 2015 (90 days after discovery of the blog) as to NDT. Plaintiff Ex 4 establishes a download date of those blog posts as 10/2/2015, a few days after Linda Marshall demanded the blog be taken down. The discovery date was just prior to when Linda Marshall sent a letter demanding the blog be taken down, sometime in September 2015.

The plaintiff’s claims are time barred.

Section 6.2 of the contract provides as follows:

“The parties agree that the provisions in this agreement are separable and that in the event any provision is deemed ineffective or unenforceable, they are severable from the remaining provisions of the Agreement, which provisions shall remain binding on the parties.”

 The contract has already been interpreted via litigation and found to be valid with respect to ORS 659A claims. Defendant’s Motion to Compel Arbitration in the New Jersey Action (Attached herein as Exhibit 12), in Response to Plaintiff Exhibit 2, was granted.

The time to dispense with a case is right after it is filed. There is no excuse for the Oregon State Bar PLF to deny this claim. Intentionally denying proven claims is an act of fraud and bad faith.

Here the problem we have with the PLF. They are not governed by the Oregon Insurance Commission. Rather they are an umbrella arm of the Oregon Department of Justice. As such they appear to not only enjoy tax exemption but also the protection of the Oregon Department of Justice.

A new lawsuit will be filed soon.

[1] Modeled after ORS 659A.880.

Chapter 107 – The Forensic Experts

M’s former employer and the target of this terrorism hired two computer forensic experts, Steve Williams and Mark Cox.

M hired one computer forensic expert, Justin McAnn. His Linkedin account is here. Justin Report is here: Forensic McAnn 125-4. His Testimony is here: McAnn Testimony.

You might expect McAnn’s computer forensic report and testimony might even refute our experts reports and testimony, but it did not. McAnn argued the case for spoliation, for lack of any other argument, but overstepped his bounds. There was no spoliation of material evidence.

Lets get to the questions to McAnn and his answers:

  1. Were you able to refute the email terminating Max, sent on October 2nd?

His Answer: No. Page 135-136.

2. That termination email was sent three weeks before the complaint to the ODJ?

His Answer: Yes.

3. M indicated he had reformatted the 120 gig hard drive in May. What date was the hard drive reformatted?

His Answer: November 12th. Page 124.

4. How many FoxPro files were destroyed when Max reformatted it?

His Answer: 1900. Page 125.

5. And you found the computer in continuous use from May to November when it was returned, contrary to M’s testimony?

His Answer: Yes. Page 126.

6. Had M used his active hard drive, the 60 gig hard drive, to send and receive email?

His Answer: No. Page 127.

7. Were you asked to confirm that the computer hard drive had been used to send and receive emails as opposed to M sending and receiving emails?

His Answer: Yes. Page 126.

8. That was Deceptive of Ms. Marshall?

His Answer: Yes. Page 126.

9. Were you asked to look for deleted FoxPro files on the 60 gig hard drive?

His Answer: Yes and found many? Page 135.

10. Were you asked to look for FoxPro files created before November 13th?

His Answer: No. Page 135.

11. That was deceptive. Did you, however, find files created before November 13th?

His Answer: I was told not to look for them. Page 136.

12. On the 60 gig hard drive, you were instructed to look only for the exit time email?

His Answer: Yes, I was instructed to only look for the exit time email on the 60 gig hard drive. [On the forensic image provided by Steve Williams]. Page 131.

Max’s team chose to not perform forensic exams for 5 years. When they did they were forced to use forensic images created by our experts many years before. They took a position that this was spoliation. It was not.

In fact McAnn went way too far in even suggesting that forensic images are not the standard for preservation of evidence. Our expert took issue with his grossly misleading statements in our confirmation filings, denying that copies of forensic images deteriorate with each copy and refuting the creation of log files for date stamp changes. See Ex A Mark Cox Declaration MTOV.

Mark Cox Linkedin account is here.

Steve Williams is a Financial Crimes Detective and can be found here.

Reports from Mark and Steve are in Chapter 4.

The important conclusions from the McAnn testimony is that he confirmed that Max had destroyed FoxPro programs when Max reformatted a 120 gig hard drive in November (not in May as Max had testified to) and that the hard drive had been in continuous use. It had not crashed. There was no reason to reformat it.

McAnn testified that the 60 gig hard drive was not used by Max to send and receive emails as Max had testified.

Further that he was instructed to not look for FoxPro files created on the 60 gig hard drive prior to November 13th, the period in which Max used that hard drive.

Our experts testified that Max did not turn over FoxPro programming, that it was not on the 60 gig hard drive. Four others testified that they looked for the programming and could not find it. McAnn testified that he was instructed to not look for the FoxPro programs that Max contended he created and used on that hard drive. One may reasonably conclude that had Max actually created and used FoxPro programs from May to November, he would want his forensic expert to look for them.

All three experts agreed that Max had been terminated before he filed his complaint to the ODJ and to me. The complaint to me included a spreadsheet which Max claimed was received via an email from another employee. Max did not turn over that email. None of the forensic experts could find the email transmitting the spreadsheet to Max. The email file in use by Max from May to November was not turned over.

We could not find the spreadsheet on any computer owned by us. Our forensic experts could not find it. Max’s computer expert was not asked to look for it.

You can’t spoliate programming and data not there in the first place.

Max intentionally withheld programming leading to the shutdown of my company NDT. He planned the attack for six months.

But it is not the travesty of this story. The travesty is that the arbitration process was so poor as to render void. The travesty is that Linda Marshall and Sandra Ware go away with destroying evidence and blatant perjury. The travesty is that Bill Crow did not even understand that. The Travesty is that Judge Papak confirmed the award.

It took 7 years to recover financially from this cyber attack.

Max appears to have become the darling of the plaintiff’s BAR here. In New Jersey he’s a threat. In Oregon he’s a poster child for Oregonlive.

 

 

 

 

Chapter 106 – The Recusal

In the arbitration, Linda Marshall introduced evidence that was a transcript of a hearing from ten years earlier, involving one of my companies. That hearing was the recusal of Judge Jones. I had asked him to step down on an abundance of caution believing at that time that the plaintiff was an extended family member. This issue was identified after the judgment.

After his recusal, the judgment was properly transferred to Multnomah County, after which we pursued damages for plaintiff counsel filing knowingly inaccurate garnishments against members of the same affiliated group. The attorney Bud Bailey was suspended from practice a short time thereafter, for six months. A short time thereafter we paid the judgment.

Although unrelated to the arbitration, Marshall filed this linked transcript with the design of influencing the outcome of the arbitration and one would presume that it served that purpose. That is prima facie evidence of attorney misconduct. See the recusal transcript here.Ex 567 Recusal .

At the top of the page of the transcript, there is a fax header. That header shows that Sandra Ware acquired the transcript well before Max filed his lawsuit in New Jersey and faxed it onto some party, presumably the attorney representing Max. Sandra worked for the firm of Blumberg and Lindner at that time. See the fax header?

Over my objections, Marshall actually examined one of my former attorneys on this matter. Her point was that I sent a letter to effect the outcome of litigation. She must have been thinking that at some point her undisclosed past relationship with Crow would rise to the forefront of the conversation.  She was hedging her bet as it were. The testimony is here. Weil Cross.

In like manner Joel Christiansen filed in his lawsuit the same transcript, specifically calling on the USDC of Oregon to continue to persecute and punish me for the Judge Jones letter. See Christiansen’s Declaration here. Ex 570 Declaration by Christiansen. Why would legal counsel engage in this behavior? One would think that both Marshall and Christiansen believe that this works.

Its a shame for legal counsel to consistently file documents which confirms that they believe a few Judges of the USDC of Oregon have and will set the facts aside to assist one of the parties. Perhaps it is simply to activate the bias of a judge. But whatever it is intended to be or do, the undeniable conclusion is that these attorneys believe the use of a transcript on a prior unrelated case will influence the outcome of their case. It is time for the Judges to tell them to stop.

But we are not through. Marshall filed a declaration with Judge Papak claiming that a complaint was filed against Bill Crow. Ex 569 Marshall Declaration.  The last sentence of the declaration is an appeal to the Judge to find in their favor over the complaint. Ideally, if the BAR did its job, no complaint would be necessary. But here’s a question…how did Marshall know I had filed a complaint against Crow unless he told her?

And of course these two knuckleheads contacted Judge Jones chamber & claimed I was going to do him harm. Over a blog post. I’m guessing this was really an attempt at nefarious contact. Unfortunately for them, the US Marshals Service got involved. M&C lied about it of course.

I sued M&C over this in Clackamas County Court, but Judge Herndon decided to set the facts aside and find in favor of these two nuts. They were represented by the Bar PLF.  And to suggest that the decision was intended to support blanket bad behavior of some of our Judges and attorneys is an understatement.  Protecting this unethical behavior is not in the public’s interest. Exposing it is in the public’s interest.

Should an attorney contact a Judge he or she believes is genuinely at risk? Of course. But there must be a voice of reason. We cannot allow attorneys to fabricate these claims only gain some advantage in a lawsuit, to endear themselves to a Judge or group of Judges on a false narrative.

And as far as I can tell this all looks back to the Judge Jones recusal. I am sorry I had to send the letter. I am sorry Judge Jones did not disclose that the plaintiff was an extended family member, if he was. I do not believe Judge Jones acted in any way but one to effect the outcome of that jury trial. His surprise instructions to the jury nullified our counterclaims and that was unacceptable. I was a major fan of the Judge through the trial.

It’s a shame that I had to raise this issue with Judge Jones. I offended him. I wish I could take it back and write a different letter, but I cannot.

Still, if attorneys are basically invited to use this recusal as an invitation to persecute, then perhaps my letter of 16 years ago was well founded. Certainly the events surrounding its use, the abuse of using the recusal, should be a concern to everyone.

Lets run a clean trial all the way to the end, shall we.

 

Chapter 105 – The Crow Tapes Part I

As a refresher, I met with Bill Crow (arbitrator) just over a year ago in February 2017.  And lets give credit where credit is due. Bill did not need to meet with me. He did so in response to my repeated requests to interview him, wanting to form a character like him for a screen play Therefore, I want to honor the courage and character he displayed in meeting with me.

At the outset, Bill and I talked about his tenure in the profession, his days before he became a lawyer, his time in practice and ultimately his time as Chairman of the Oregon State Bar Disciplinary Board. I found Bill alert, engaged, humorous, insightful and many other things a compliment to his profession.

Eventually, some of my question elicited responses that were directed to the NDT v Zweizig arbitration. My questions were more generic on a broader spectrum of the issues I faced in that arbitration. Bill had told me that he did not remember much of the arbitration, which I accepted as probable.

Prior to the arbitration hearing and four years into the arbitration process, I removed one of my attorneys. We had filed a summary judgment motion and we should have prevailed. But we did not and subsequent to Bill denying our Motion and to the attorneys removal, I was told by my attorney that Bill’s legal secretary talked to him and had some concern over Bill’s ability to track the evidence, especially as the opposing party was trying to make the issues more difficult to understand.

In 2006 when this arbitration was initiated, Bill was about 75 years old. By the time we were noticed of Bill’s failing cognitive skills, Bill was about 79 and at the hearing he was about 80.

Given the notice from Kristi, his legal secretary, I felt fairly comfortable that the issues were clear enough that Bill would have no challenge understanding the evidence. That was certainly the opinion of Jeff Edelson, my attorney who had the conversation with Kristi. Bill was still identified as a partner at Schwabe, he was ascending to Chairman of the Disciplinary Board and I felt the profession would be monitoring his health and ensure that the public was protected.

I was wrong. Worse, his former partner Linda Marshall identified that loss of cognitive skill and took advantage of it at every turn. Lets explore the signs.

Before doing so, however, I want to explain what Bill admitted to. First, that most of the time he was doing one day mediations, not extended arbitrations. Two, that during any given day of the hearing he was tracking just fine, but his memory of the testimony was not tracking with the transcripts. Three, that he did not and would not seek assistance from other colleagues to understand the technical issues, like spoliation. Four, that he just did not have the stamina to dive into the evidence post-hearing.

He did not admit to being mad about being challenged on his failure to disclose the past relationship with Linda Marshall. His emails indicated that he was angry about it and he certainly lashed out after his recusal. To his credit he admitted to having much more recent contact with Jeff Edeslon than Linda Marshall and by that time it had been 13 years since working with Linda. He did not remember to disclose it and was somewhat embarrassed by it.

Looking back, there were lots of signs. First, he repeatedly asked Linda Marshall where we left off, even after a break. Second, we were about 70% way through the hearings when he wanted confirmation on the causation standard for Zweizig’s claims. Third, he was relying on the computer forensic experts reports and testimony, which while in total agreement, he interpreted to be in dispute. Fourth, the acceptance of a mountain of irrelevant evidence offered by Zweizig, designed by Marshall to influence and confuse Bill.

In doing my research on this topic, someone like Bill can hide these cognitive skill challenges because they have by experience and rehearsal developed the skill to engage as if comprehending, when in fact they are not comprehending. You have to dig deeper.

One of the areas we objected to early on was a hearing where Judge Jones recused himself. Ex 567 Recusal. The Jones v. Rote case was not in any way related to this case with Max Zweizig. The issues were not similar in any way. The case was not relevant in any way. OEC 401 defines “relevant” evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Marshall introduced the recusal hearing transcript under an umbrella of “bias,” claiming that I had challenged other Judges on issues of undisclosed bias or undisclosed relationships. By then, neither Marshall nor Crow had revealed that they had worked together at Miller Nash. In retrospect, Marshall introduced this to counter what we were about to discover…that they had worked together as partners.

An arbitrator has a duty to disclose these past relationships. It can, as it did in this arbitration, effect the outcome of the litigation. In fact it brought a prejudice and stench that permeated the entire proceeding.

When someone is struggling to understand or comprehend, as Bill was at material times, there is a natural human tendency to place faith in the one known better. Had Jeff Edelson still been representing my company, we would probably have prevailed on these issues because Marshall’s influence would have muted by Bill’s faith in Jeff’s skill and integrity. But he had been removed and so had Scott Cliff. In a battle for credibility, I lost to Marshall simply because Bill knew and trusted her, whereas he hardly knew me.

That led to Marshall’s abuses of evidence, including 17 counts of perjury and the destruction of evidence. Exhibit 1 CHAPTER 90v5. Marshall certainly had deduced that she had this opportunity or she would not have offered the Recusal Hearing transcript over our objections.

I remain surprised that a Judge would not act harshly to an attorney trying to introduce irrelevant evidence designed to play to a perception that the Judge is biased. It would offend me if I were a Judge. In better days, I believe it would have offended Bill.

When Bill rejoined the arbitration after recusing himself, and at the demand of Marshall, he summarily dismissed all of the testimony of our Eight (8) witnesses and the reports and testimony of the three (3) forensics experts. He adopted in totality the position espoused by Marshall.

Zweizig withheld and destroyed our computer programming leading to the shut down of the company. Five (5) witnesses and three (3) computer forensic experts confirmed the shutdown and destruction of the programming. The destruction of the programming is a felony under the Computer Fraud and Abuse Act.

Awarding Zweizig anything for causing the layoff of 150 people is travesty and an offense to justice. But the bigger issue and the subject of this blog is that process of justice was compromised. Even more importantly there was a cover up.

During the same interview Bill conveyed that he had referred Marshall to Zweizig. He later retracted that in a declaration filed in this case. According to Marshall it was Bill’s declaration, but then again it was not signed or notarized. I’ve checked the tapes and my notes and find my conclusion as to this referral issue to be a correct conclusion. If not Bill, I apologize.

Who determines that a judge is no longer capable to sit on the bench? In Oregon, Judges must retire at age 75. Not so on the Federal Bench. Not so for an arbitrator or partner in a law firm…or owner of a law firm. The Oregon State Bar does not monitor. The PLF does not monitor. No one does.

Just over a year after issuing his Opinion in this case, Bill Crow retired from the Bar, no longer permitted to practice Law. I know he attributes some of this at least to me. I filed a complaint against Bill after the arbitration. I did not want to. It gave me no pleasure. It was necessary to protect the public. Frankly, the US District of Oregon should have done that.

What I find with great consistency is that members of the Bar like to sue but don’t like to be sued. They like to Judge but don’t liked to be Judged. They are critical of the breach of duties of other professions–doctors, engineers, architects, cpas, etc.–but circle the wagons to conceal their own malpractice. They are critical of insurance companies that don’t pay claims, suing them at every turn, but our Oregon malpractice carrier does not pay claims (See my PLF Chapter). They are quick to call out the perjury of the other party but engage in massive perjury and other misconduct on their own.

They could in their own right be cyber-criminals, white collar criminals, breaching all manner of ethical mandates and decorum. This is perhaps too broad a point, but this is a profession that polices itself…if it chooses to.

I am so disappointed in the Oregon State Bar. I am not necessarily surprised by the conduct of Zweizig’s attorneys. Most of them are poor and have been sanctioned by the Bar.

Calling on a Judge to find in a clients favor over a recusal or a complaint or an ethics complaint seems to be prima facie  evidence of misconduct by that attorney, but some of our judges seem to be influenced by this behavior.

I leave you with Ex 569 Marshall Declaration to Judge Papak in the confirmation of the arbitrators award. Judge Papak performed the duty or role of an appellate court. Marshall noted in the last paragraph of her declaration that I had filed a complaint against Bill Crow. How did she know? 

At that time I did not know Bill was the Chairman of Disciplinary Board. My complaint went to him and no further.

One can only presume that Marshall made the statement about my complaint against Crow knowing that it was not going to back fire, but was rather going to help her in this sordid pursuit. Does it always work? Does it work for some but not all Judges? Does she know which ones? Is the endorsement of Crow’s opinion by Judge Papak intended to mitigate the importance of the complaint, so that BAR can say “look it is confirmed.” Therefore no harm? Was she telling Judge Papak to hurry up and decide in her favor so Crow would not be sanctioned….although how could he be sanctioned when he was controlling the Disciplinary Board?

The checks and balances of the process either failed or are non-existent.

Bill Crow liked being a lawyer. Shortly after the arbitration he won the Owen Panner award, for recognition as representing the highest ideals of the profession. I’m not questioning that he deserved to win the award. He knew that during and after this arbitration his days were numbered, that his inability to discern was material in performing his role as Partner, Arbitrator and Chairman. He did nothing to correct his own bad behavior.

Time catches up with all of us. The Oregon State Bar is not well prepared to handle the issue of dementia. We are all living longer. And most of us will need to work longer. Most have not saved enough to last 25 years after retirement. I empathize with Bill and challenge the BAR to monitor for dementia so that practitioners like Bill can work longer…even if not certified to be an arbitrator, for example. There’s no reason why Bill could not continue to do a lot of mediation. As a party I would have found him highly credible in bringing parties together. I’d hire him to mediate.

I’d like to thank Bill for meeting with me. Not all that I write here will be comfortable for him or for me. We need to acknowledge that the role of appeal is not to ignore the failures of men and women practicing law (young or old) when they should not be. The role is to reverse the bad for the safety of the public and to restore public trust in litigation. Thus and ultimately the greater failure is by Judge Papak.

Attorneys knowingly exploiting the dementia of a trier should be sanctioned.

And Bill would agree. He acknowledged that the arbitration should have been vacated, that he was being exploited by Marshall. The USDC in Oregon should have vacated. The BAR should have intervened. Schwabe should have intervened. The PLF should have covered the damage to both parties.

No one did anything.

 

Note: I accidentally published a rough draft a few days ago. Sorry, it was very rough.

 

 

 

 

Chapter 104 – Is it Legal to Hack Back?

There is more and more talk about companies hacking back against those who attack them in cyber space and whether allowing them to take such measures is a good idea. Right now, hacking back, or active defense, as it is often called, is illegal under the federal unauthorized access law, the Computer Fraud and Abuse […]

via What does it mean to “hack back” and is it a good idea? — Business Cyber Risk Blog

Chapter 103 – Fifth Circuit Upholds Conviction for Insider Misuse Causing Damage Under CFAA

Reposted by permission.

Posted on 

The United States Fifth Circuit Court of Appeals affirmed a jury verdict finding Laoutaris guilty of two counts of computer intrusion causing damage, in violation of 18 U.S.C. § 1030(a)(5)(A) and (c)(4)(B)(i) of the Computer Fraud and Abuse Act.

Laoutaris had been an IT engineer for Locke Lord, LLP, a Dallas Texas Law Firm; following the termination of his employment, he accessed the firm’s computer network and issued instructions and commands that caused significant damage to the network, including deleting or disabling hundreds of user accounts, desktop and laptop accounts, and user e-mail accounts. This post-termination access was without authorization. He was ordered to pay restitution in the amount of $1,697,800 and sentenced to 115 months’ imprisonment.

On appeal, Laoutaris argued that “the evidence at trial was insufficient to support the jury’s verdict for both counts of conviction because there was no proof he was the person who accessed Locke’s network and caused the damage that occurred on the relevant dates.” The Fifth Circuit disagreed and found “[t]he evidence at trial shows a rational jury could have found each essential element for the § 1030(a)(5) (A) offenses charged against Laoutaris, who elected to testify. Contrary to his assertions, there was
ample circumstantial evidence identifying him as the perpetrator of these offenses.”

Now this is the way cyber criminals should be handled, being held accountable for the crimes they commit. Here in Oregon, however, they get off with barely a hand slap. The U.S. Attorneys Office could care less about prosecuting and of course in the rare occasion when they do, a company like Columbia Sportswear lets them off the hook to save face. Perhaps it is embarrassment.

Here in Portland, you can call the FBI, but they wont take your calls. You can file a complaint on line, but it is not acknowledged. You can contact the U.S. Attorneys Office, but they are disinterested. If we don’t get this apathy fixed and find a way to place credible players in these government positions, we will lose our city. Maybe we already have.

Until next time.