In April 2006, Oakland, Calif., lawyer Thomas Ostly was chatting via instant messages with a paralegal in his office.
"How do you record these i.m.s?" she asked him.
"Oh, you can't record me," he typed back. "I refuse to give you any evidence for the inevitable lawsuit."
He was joking then, but four years and reams of online chats and text messages later, Ostly and the former employee, Allison Moreno, are this week battling each other in a contentious, lengthy jury trial in Alameda County Superior Court.
And at trial Tuesday in front of Judge Jo-Lynne Lee, Moreno sought to make the most of Ostly's odd decision to personally depose her.
Moreno, 30, sued in 2007, claiming that Ostly fired her when she refused to continue a sexual relationship with him. She says she felt pressured to have sex with Ostly, and that she did so to protect her job and her plan to attend law school.
Ostly, 38, says the two dated each other, and that he never fired Moreno -- that he told her to go home one day because he couldn't deal with her belligerent attitude after he confronted her about a serious mistake she had made in a case. He says her suit is just about money.
In cross-examining Moreno on Tuesday, Ostly's attorney, Shane Anderies of San Francisco employment law firm Anderies & Gomes, quizzed Moreno about explicit messages she sent Ostly. And he poked at her credibility, showing the jury disparities in what she said in depositions and what she testified to in court. But he kept running up against the fact that his client had taken an active role in deposing Moreno, at times questioning her and at others observing.
"Isn't it true that Mr. Ostly never said anything to you that you found offensive?" Anderies asked Moreno.
"That is very untrue," she replied.
Anderies then played for the jury a portion of Moreno's videotaped deposition, in which, answering the same question, she said she couldn't think of anything specific.
"After three years of litigation, in day three of the deposition, you still couldn't recall anything offensive that Mr. Ostly said to you?" he asked her in court.
Moreno replied that she had been stressed out and intimidated by Ostly's presence.
"I didn't know that it was allowed that he would be taking my depositions," she said. "My mental state was compromised by his presence."
One attorney not involved in the case said it was highly unusual and even foolish for an accused attorney to take part in deposing the plaintiff in a sex harassment case.
"It undermines any perception that the accused attorney was wrongly accused or that the underlying claims were weak," said Mary Shea Hagebols, an expert in harassment cases against attorneys and law firms who is not involved in this case. "It will appear to the jury that the accused attorney is being malicious, vindictive, engaging in a form of intimidation and continuing the harassment," Shea, who served as co-defense counsel in the highly publicized Weeks v. Baker & McKenzie case, said in an e-mail.
She added that the move risks opening the gates to a major punitive damages award.
In fact, Moreno's lawyer at Oakland's Siegel & Yee cited the Weeks case to the judge on Tuesday in arguing that the jury should hear evidence of other alleged improper sexual relationships Ostly engaged in.
"It's for punitive [damages] purposes," Jose Luis Fuentes told the judge.
Lee took the matter under consideration.
Outside of court, Fuentes said Moreno's suit is aimed at stopping Ostly from victimizing others. "The reason we are doing this isn't the money," he said. "An attorney shouldn't be doing this."
Ostly's former firm -- Ostly, Murphy & Vu, which is now Murphy, Vu, Thongsamouth & Chatterjee -- is also a defendant in the case. Anderies represents the firm as well.
Anderies and Ostly declined to comment while the trial is ongoing.
