Chameleon-like Defense Counsel Tries the Old "Documents Fell Into a Black Hole" Excuse

The e-discovery team blog this week is on the new case out of Indianapolis where U.S. District Court Judge Larry J. McKinney calls the lawyers for the defense "chameleons" who joined in their clients scheme to withhold evidence. 1100 West, LLC v. Red Spot Paint & Varnish Co., Case No. 1:05-cv-1670-LJM-JMS (S.D. Ill. June 5, 2009). Judge McKinney entered a default judgment against the defendant for withholding evidence and misleading opposing counsel and the court. The judge held that both the defendant and its law firm should pay for all of the other side's fees and costs, which will be quite high in this hotly contested environmental damage case. My blog this week is entitled Law Firms Threatened by Fat Chameleons. It examines defense counsel's abhorrent behavior in this case and why the judge called the lawyers chameleons. I explain what the judge meant by "chameleon lawyers" and point out how this is a problem with many law firms today, not just the big firm in Indianapolis who was shamed by this decision.

Read on to see what a lizard black hole looks like, how defense counsel in this case failed with the black hole defense, and how you too can become a chameleon lawyer.

Now as to the black hole excuse, that was actually one of the defenses raised by the chameleon lawyers. The law firm tried to explain the disappearance of key documents by contending, no doubt tongue in cheek, that the “documents fell into a black hole and [BME was] not aware of the fact that [it] had the documents other than in the limited capacity of the very limited review.” Id. at 14. Needless to say, this questionable attempt at humor did not succeed. Personally, I wonder why any firm in a position like that, facing serious sanctions, would use such an expression. The answer I suppose lies in the mind of a chameleon. By the way, if you want to make contact with the chameleon mind, just stare at the drawing by M.C. Escher above where lizards seem to disappear into a black hole of infinity. While staring, say to yourself, over and over, "Its just good zealous advocacy to believe your client, despite all evidence to the contrary." If that doesn't work, try another chameleon favorite: "It's o.k. to hide, not guide" and "the client is always right." Before you know it, you too will be a fat chameleon.