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A personal injury suit against The Home Depot Inc. is heating up rather than settling down in the wake of a fight over deposing company co-founder Bernard Marcus. Filings in the Fulton State Court case in Georgia are multiplying fast and taking on an increasingly rancorous tone: a request for a gag order, a demand for sanctions, and a motion to disqualify a defense firm. Thursday, under the supervision of a judge, the lawyers even deposed each other about affidavits they had signed on discovery issues. Those depositions occurred in open court after a testy argument about discovery document production, an argument that prompted Fulton State Court Judge M. Gino Brogdon to observe, “This case is not working the way discovery … should.” Plaintiffs’ lawyers Thomas J. Venker and Andrew R. Kirschner of Atlanta-based Kirschner and Venker and Theodore Salter Jr. announced at the hearing that they had sent deposition subpoenas to the other co-founder of Home Depot, Arthur Blank, and three other current or former company officials, including Home Depot’s corporate counsel, Sybil C. Hadley. Home Depot attorney Earl W. “Billy” Gunn, of Atlanta-based Weinberg, Wheeler, Hudgins, Gunn & Dial, told Brogdon he hadn’t received official notice of the subpoenas, but he had received a settlement demand from the plaintiffs — for $13.4 million, provided Home Depot didn’t oppose the subpoenas. Gunn, in a disgusted tone, said Home Depot would fight the subpoenas. Brogdon chuckled, commenting that “a certain amount of this is sexy stuff.” “It’s obscene,” Gunn said. Brogdon said the litigation was beginning to remind him of the movie “Gladiator.” Gunn’s co-counsel William C. Buhay pointed out that the movie’s lead actor, Russell Crowe, “ended up dead in that movie.” Home Depot litigation counsel B. Rose Miller also represented the company at the hearing. CUSTOMER INJURED Plaintiffs Nancy and Richard Martin sued the Atlanta-based home improvement retailer over head injuries Nancy received from falling merchandise at an Atlanta Home Depot store. The suit claims that customer injuries are a natural consequence of the company’s merchandising strategy — as envisioned by Marcus — of stacking merchandise on shelves that tower above aisles to create a warehouse effect. The Martins’ lawyers used that argument to convince Brogdon in December that Marcus needed to be deposed. Brogdon’s ruling was a rarity, given that courts usually regard attempts to question top company officials as harassment rather than as an attempt to get discoverable information. Martin v. Home Depot, No. 00VS001710-J (Fult. St. order Dec. 10, 2001). With Brogdon refereeing, Marcus was deposed Jan. 25. The wide-ranging deposition covered Marcus’ career and business philosophy and included lengthy comments by Marcus on customer service and customer appeal. But plaintiffs’ lawyers failed to extract much information about why Home Depot stores might be dangerous to customers or about corporate knowledge and responsibility for customer accidents. PUBLIC ACCESS The litigation also has been marked by a rhetoric-laden fight over publicity. Home Depot has tried to keep the case off the public’s radar. Earlier this year, days after a Fulton County Daily Report story about Marcus’ upcoming deposition, Home Depot sought a gag order against all parties and lawyers involved in the case. C.G. Jester Jr., of counsel to Atlanta’s Mozley, Finlayson & Loggins, who at the time was Home Depot’s only listed counsel in the case, argued that a fair trial for his client could be jeopardized without restrictions on pretrial publicity. Defense lawyers also argued that Marcus’ deposition should be sealed because competitors might gain an advantage by reading his remarks about his corporate philosophy. The plaintiffs’ legal team responded by asking Brogdon to authorize televising of the trial, claiming that measure was necessary so the public could see “the dark secret at the heart of the financial success of Home Depot.” No television station or network has expressed any interest in doing so at this point in the litigation. Brogdon declined to issue a gag order or to seal Marcus’ deposition. A review of the record shows no order on televising the trial, but at a hearing Brogdon expressed some puzzlement over that request. MORE REPORTS CLAIMED The publicity apparently attracted the attention of others litigating against Home Depot around the country, who compared notes with the plaintiffs’ lawyers here. And that has led to a discovery dispute. Venker, Kirschner and Salter claim that, through contact with other plaintiffs’ counsel in similar cases, they have found documents that Home Depot should have produced in the Martin case. And they want sanctions against the company, including striking its answer, for its failure to do so. In discovery, Home Depot had produced 21 reports recounting injuries to customers that occurred in a manner similar to the July 3, 1998, injury to Nancy Martin. According to the suit, a store employee was using a forklift to remove merchandise from the top of an 18-foot-high pallet-rack when three boxes of light fixtures fell on Martin’s head. She suffered a closed-head brain injury that has resulted in severe headaches and seizures. At a January hearing, Kirschner told Brogdon he had 225 other incident reports that Home Depot should have given the plaintiffs, reports the store had disclosed in a similar case in Kansas. Soon after that hearing, plaintiffs’ lawyers filed a motion for sanctions, asking Brogdon to strike Home Depot’s answer. The lawyers argued that, based on information from similar cases around the country, Home Depot had engaged in what seemed to be a “national pattern of providing inconsistent and incomplete information concerning the number of incidents of customers being struck by ‘fallen merchandise’ in order to obstruct discovery.” DOCUMENT RETRIEVAL PROBLEMS Jester, joined by the Weinberg Wheeler lawyers who had been hired just six days before the sanctions motion was filed, argued that Home Depot thought it had produced everything to comply with discovery orders. But after hearing Kirschner’s comments, the defense brief says, another search for documents was undertaken. The defense lawyers said the original computer search didn’t retrieve all the documents it should have. They produced 23 more incident reports. Those reports, the defense brief says, weren’t withheld intentionally. Instead, a mistake in the classification of those incidents caused them to be coded improperly and then overlooked in the computer search. The mistakes, the brief adds, were “human mistakes, not made with an agenda, but unfortunately made nonetheless.” According to a Nov. 20, 2001, affidavit filed by Buhay, Home Depot’s document retrieval procedures were difficult due to the company’s prior storage policies. Closed claims were sent offsite to a document storage company, which kept Home Depot’s files intermingled with those of other clients. Weinberg Wheeler was hired last summer to help Home Depot manage its litigation, including document storage and retention policies, Buhay’s affidavit said. Home Depot began bringing its closed files to Atlanta, accumulating 1,000 boxes, none of which were organized by date, claimant or type of claim. Locating a file, Buhay said, involved manually searching all those boxes. The plaintiffs’ lawyers have cited Buhay’s affidavit as reason that the entire Weinberg Wheeler firm should be disqualified from representing Home Depot. They argued that Buhay had inserted himself as a witness on the subject of “creating excuses for failure to accurately disclose the number of incidence [sic],” and that they wanted to call him as a trial witness to show Home Depot had acted in bad faith. Defense lawyers countered that Buhay’s affidavit didn’t make him a witness. If he were forced to testify, they argued in a brief opposing Weinberg Wheeler’s disqualification, no client would ever consult a lawyer about discovery issues for fear the lawyer might have to testify against the client. The only knowledge Buhay and Weinberg Wheeler have relevant to the Martin case was acquired from their representation of Home Depot, and the attorney-client relationship should not be breached, the brief argued. In a separate brief opposing sanctions, the Home Depot lawyers asked Brogdon to admonish the other side for including “false and offensive claims” that Weinberg Wheeler lawyers deliberately hid information from the court. The brief pointed out that the lawyers from that firm only entered the Martin case six days before the plaintiffs filed their sanctions motion. Brogdon did permit the plaintiffs’ lawyers to depose Buhay on the limited subject of the contents of his affidavit. The judge also allowed the defense lawyers to depose Venker about an affidavit he had filed on discovery issues in the case. No hearing on the sanctions motion and disqualification motion has been scheduled. Staff reporter R. Robin McDonald contributed to this story.

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