Chief Justice John Roberts’ annual report on the state the federal judiciary reminds lawyers of their obligations to “avoid antagonistic tactics, wasteful procedural maneuvering, and teetering brinksmanship.” I wonder what he thinks of the “tactics, maneuvering, and brinksmanship” surrounding the latest chapter of “Bridgegate.”
Four Days in September
In 2013, the mayor of Fort Lee, New Jersey refused to endorse Governor Chris Christie’s re-election campaign. In apparent retribution, Christie’s deputy chief of staff Bridget Anne Kelly sent an email to David Wildstein, Christie’s appointee at the Port Authority of New York and New Jersey.
“Time for some traffic problems in Fort Lee,” Kelly wrote on August 13.
“Got it,” Wildstein replied.
On Friday, September 7, Wildstein followed-up: “I will call you Monday AM to let you know how Fort Lee goes.”
Everyone knows how Fort Lee went on Monday, September 10. The Port Authority closed two of three local access lanes on the upper level of the George Washington Bridge. Four days of gridlock near the town continued until September 13, when the Authority’s executive director (a Governor Andrew Cuomo appointee) ordered the lanes reopened.
Getting Ahead of One Story
Several months later, the Kelly-Wildstein emails surfaced. Immediately, Republican presidential hopeful Christie did the fashionable thing: nip a growing scandal in the bud by hiring a respected outside lawyer to conduct an internal investigation. He chose Randy Mastro, former chief of staff to New York City Mayor Rudy Giuliani. According to the firm’s website, Mastro is a partner and member of the management and executive committees at Gibson, Dunn & Crutcher, current winner of The American Lawyer’s biennial “Litigation Department of the Year” contest.
Christie promised that Mastro would “bring an outside, third-party perspective to the situation” with a “thorough” and “efficient” internal investigation. Gibson Dunn certainly had the firepower to accomplish that mission. Its Bridgegate team included five former federal prosecutors with “experience in internal investigations and criminal cases.” The state of New Jersey picked up Gibson Dunn’s tab. For the first three weeks of work, it charged $1.1 million.
Just two months after the investigation began, Mastro released Gibson Dunn’s final report and provided final witness summaries to the U.S. attorney and the New Jersey Legislative Select Committee on Investigations. The report exonerated Christie.
The New York Times described the ensuing press conference: “The former federal prosecutor who led the internal inquiry, Randy M. Mastro, frequently sounded like a defense lawyer making his case to a jury. He referred to Ms. Kelly as a liar, cast doubt on the credibility of the mayor of Hoboken, who accused the Christie administration of political intimidation, and slipped into lawyerly exhortations to the ‘ladies and gentlemen’ sitting before him.”
While Creating Another Story
On May 1, 2015, Wildstein agreed to plead guilty and cooperate with the government’s prosecution of Kelly and Port Authority deputy executive director William Baroni, Jr., both of whom were indicted. On May 27, lawyers for Kelly and Baroni sought court permission to issue subpoenas to Gibson Dunn for any notes, transcripts, and records that the firm had in connection with its investigation and report. Over Gibson Dunn’s objection, the court granted the motion.
After the subpoenas went out, Gibson Dunn objected again. It also responded that no such notes or recordings existed — none — and moved to quash the subpoenas as moot.
Defendants’ exasperated lawyers complained, “Gibson Dunn claims that it billed New Jersey taxpayers nearly $10 million but not a single lawyer took a single note during 75 interviews in the most high-profile political case in recent years.” (The court noted that the actual amount billed seemed to be about $8 million.)
The Court Was Not Amused
On December 16, 2015, Judge Susan Wigenton — a George W. Bush appointee — sympathized with the defendants’ frustration. She also explained what troubled her about Gibson Dunn’s position.
“Attorneys are trained to scrupulously document information when conducting internal investigations, including taking and preserving contemporaneous notes of witness interviews,” the court wrote in a ten-page opinion. “In the past, Gibson Dunn has done exactly that.”
But not for Bridgegate. Judge Wigenton chided the firm for “intentionally changing its approach in this investigation.” In particular, the affidavit of Gibson Dunn partner Alexander Southwell confirmed, “[W[itness interviews were summarized electronically by one attorney and then edited electronically into a single electronic file.”
The judge described the significance of that technique: “The practical effect of this unorthodox approach was to assure that contemporaneous notes of the witness interviews and draft summaries would not be preserved. Rather, they would be overwritten during the creation of the revised and edited final summary.”
Noting that the firm didn’t delete or shred documents, the judge observed that “the process of overwriting their witness notes and drafts of the summaries had the same effect.”
“This was a clever tactic,” Judge Wigenton continued, “but when public investigations are involved, straightforward lawyering is superior to calculated strategy. The taxpayers of the State of New Jersey paid Gibson Dunn millions of dollars to conduct a transparent and thorough investigation. What they got instead was opacity and gamesmanship.”
Gibson Dunn argued that defendants’ underlying motion was a “fishing expedition” and “a waste of time and judicial resources.” Defendants were “targeting a law firm’s work product, already knowing that most of what they seek does not exist…”
Nevertheless, what the court characterized as gamesmanship worked. The firm had no documents to produce, so the court granted Gibson Dunn’s motion to quash.
One More Thing…
The latest twist in the Bridgegate tale involves Debra Wong Yang, whom President George W. Bush appointed as U.S. attorney for the central district of California in 2002. In November 2006, Yang left the bench to become a partner at Gibson Dunn & Crutcher. The firm’s website notes that she works out of the Los Angeles office and has served as a member of the firm’s executive and management committees.
In a glowing introduction of Governor Christie as the keynote speaker at an event on June 9, 2011, Yang described him as her “very good friend” whom she had “known for ten years” — going all the way back to their time together as federal prosecutors. She said Christie was “the real deal” and “doing a remarkable job as governor.”
When Christie took the stage, he described how their families once vacationed together at the game ranch of a fellow U.S. attorney in Texas. “We are good and dear friends,” Christie said of Yang.
Fast-forward to Bridgegate
Here’s a summary of interesting events that followed:
— According to the The New York Times’ review of Gibson Dunn billing records, two days after Christie hired the firm to investigate Bridgegate in January 2014, “Debra Wong Yang, a Gibson Dunn partner in California and a personal friend of of Mr. Christie’s, spent time in ‘meeting with client’ – Mr. Christie and his top lawyer in the governor’s office.”
— Gibson Dunn’s army of former federal prosecutors — including Yang — departed from the usual documentation process so that when the firm completed the investigation, no notes, transcripts or recordings of interviews existed beyond the final summaries provided to federal and state investigators.
— After Gibson Dunn’s report exonerated Christie, the firm continued working at taxpayer expense. According to the Times, it billed the state of New Jersey a total of $8 million from January 2014 through August 2015 “for the continuing defense of the governor.”
— Wholly apart from the dispute over what turned out to be Gibson Dunn’s non-existent internal documents relating to its investigation, on November 11, 2015 attorneys for Kelly and Baroni filed additional motions. They asked the court to direct the government to take a closer look at the adequacy of Gibson Dunn’s earlier document productions to the federal grand jury. Claiming that prosecutors should have challenged the firm’s disorganized and inadequate discovery responses, Baroni’s motion levels this accusation: “The government has given Gibson Dunn free reign to withhold and redact documents as that firm sees fit, as well as to produce documents in an abominable format.”
— Finally, according to the Times, in December 2015 Debra Wong Yang “co-hosted a $2,700-per-person fund-raiser in Los Angeles for Christie’s Republican presidential campaign.”
In an exclusive interview hours after Mastro released Gibson Dunn’s March 2014 report, the governor told ABC’s Diane Sawyer, “Sometimes people do inexplicably stupid things.”
Then again, sometimes things may not be as stupid as they first seem.
Once again, great writing and reporting. Thank you. The Gibson decision appears, on its face, to be appalling. Gibson should not only be sanctioned by the court but disciplined by the Bar Society. Are you saying that there are no provisions in the rules of procedure to capture this clear subversion of the litigation process? Is there not arequirement to preserve and produce the meta data from the computers? Alternatively, is there not something akin to evidence tampering or spoliation in the rules? If I were a practicing lawyer in that jurisdiction, I’d certainly now know how to conduct future interviews. Really abysmal.
Defendants’ attorneys asked for the metadata, but the court ruled that, although the metadata might reveal incremental revisions preceding the final summaries, such information alone wouldn’t be relevant to defending the charges against the defendants.
Thanks. Obviously, my comments are made without the benefit of reading the decision so my comments may be out in left field. And it is clear that the judge was not impressed. Nevertheless, it is difficult to know how the court could assess the relevance without seeing the raw notes. Moreover, unless this is highly fact-specific, does it not open the door to lots of slippery practices in the future? I am hoping the judge made clear that this would not be tolerated. Let’s face the difference between winning and losing a case can often come down to just a few words.