Elliott Greenleaf wants to hold a third deposition of Stevens & Lee President Ernie Choquette after he failed to answer to its satisfaction last week why he fired a former Elliott Greenleaf partner months after hiring him.
But Stevens & Lee has responded that this is yet another attack-filled motion full of baseless allegations against the firm that comports with Elliott Greenleaf’s modus operandi in the case of Elliott Greenleaf v. Balaban .
The motions in the case have become increasingly contentious as the parties fight through an expedited discovery schedule.
Elliott Greenleaf has alleged former Harrisburg managing partner William R. Balaban stole data from the firm before abruptly quitting to join Stevens & Lee, that he and Stevens & Lee continued to access certain Elliott Greenleaf data through a Dropbox account after Balaban left the firm, and that Balaban misused Elliott Greenleaf escrow funds for personal uses.
Stevens & Lee fired Balaban June 20 and Elliott Greenleaf first alleged the timing of the firing — months after Elliott Greenleaf’s February filing of the lawsuit against them — was so that Stevens & Lee and Balaban could assert attorney-client privilege at depositions. After Stevens & Lee fired Balaban, it sought to withdraw as his counsel and, as a consequence, U.S. District Judge Timothy J. Savage of the Eastern District of Pennsylvania ordered both Stevens & Lee and Balaban to get new outside counsel.
In its motion filed July 20, a day after Choquette was deposed for a second time to ascertain the reason he fired Balaban, Elliott Greenleaf said Choquette’s lawyers at Bazelon Less & Feldman repeatedly said Elliott Greenleaf’s questions to Choquette were “beyond the scope” of the second deposition.
Elliott Greenleaf said in its motion that Choquette’s stated reason for firing Balaban was that he learned Balaban lied to the firm about whether he placed stolen Elliott Greenleaf data onto Stevens & Lee’s computers. Elliott Greenleaf said in its motion that Choquette would not elaborate on when he came to know Balaban allegedly lied. The firm argued in its motion that piece of information was “crucial” to know whether the lie was the reason Balaban was fired when he was, or if it was “window dressing by S&L to try to mitigate its clear liability by pretending it only recently discovered Balaban’s misconduct.”
Elliott Greenleaf alleged in its motion there was evidence Stevens & Lee knew of these alleged lies by Balaban as early as February.
When Balaban quit Elliott Greenleaf to join Stevens & Lee, clients Charles and Pamela Herron followed him. The couple’s company is involved in tax lien sales for government entities and they were named as defendants in Elliott Greenleaf’s suit.
It was alleged in a hearing that Elliott Greenleaf did work for the Herrons on a deferred-payment status because their business was new. When the firm looked to collect on $4 million in fees due, Balaban looked to leave the firm, according to hearing transcripts.
Now, in its motion to compel additional deposition of Choquette, Elliott Greenleaf alleges the firm waited to fire Balaban until a number of those tax lien sales closed so the firm could “reap the hundreds of thousands of dollars in fees” on work Balaban brought with him to Stevens & Lee.
In its response in opposition to the motion, Stevens & Lee said that behind the “rhetoric” in Elliott Greenleaf’s motion is only one question it seeks to compel an answer to: whether Stevens & Lee on its own made any effort to determine whether Balaban transferred data onto Stevens & Lee’s computers. The firm said that was beyond the scope of the deposition.
“Second, the motion is yet another diatribe by [Elliott Greenleaf] of its oft-repeated, contrived claims against S&L, having, at best, a tangential bearing on the motion,” Stevens & Lee said. “It is difficult to resist the conclusion that [Elliott Greenleaf] has filed this motion with little interest in whether it will be successful, because, win or lose, it will have yet again repeated its baseless allegations against S&L on a public record, knowing that the press is waiting to read and report them.”
Elliott Greenleaf partner Frederick Santarelli said Monday it was disappointing Stevens & Lee continued to withhold relevant information.
Why Was Balaban Fired?
The questions Choquette did answer at his deposition, Elliott Greenleaf said, showed that Stevens & Lee knew of Balaban’s alleged misconduct, because the firm “plugged” the USB holes on Balaban’s computer in mid-February “in recognition of S&L’s known risk that Balaban would continue to act improperly,” according to the firm’s motion.
According to a rough copy of the deposition transcript, which was attached as an exhibit to Elliott Greenleaf’s motion, Choquette said “plugged” meant the computer was incapable of accepting information transferred from other hard drives.
Choquette testified it was in late May or early June that he learned Balaban had attempted to transfer information from a second hard drive onto Stevens & Lee computers. Shortly after, Choquette was told by Stevens & Lee attorneys that Balaban had failed to file federal income tax returns for 2009, 2010 and 2011, according to the transcript and Elliott Greenleaf’s motion.
Choquette testified, according to the court documents, that he then did a deeper background check of Balaban and found he hadn’t paid his local real estate taxes to Harrisburg. Choquette said Stevens & Lee does business in Harrisburg and expects its Harrisburg shareholders to pay taxes there, according to the court documents.
Choquette testified he thought about Balaban’s employment status when the suit was first filed in February, but chalked up his actions to the “stress” of changing jobs. Choquette said Balaban was “one of us,” but when he found out Balaban lied about attempting to transfer data and his alleged failure to pay taxes, Choquette said he had to revisit Balaban’s employment status.
Balaban’s attorney, Michael Hayes of Montgomery McCracken Walker & Rhoads, declined to comment.
At a July 18 hearing, Savage held under advisement whether he would allow Elliott Greenleaf to amend the complaint and add negligent hiring and supervision claims against Stevens & Lee. Savage also took under advisement whether he would apply the crime-fraud exception to break attorney-client privilege between Stevens & Lee and Balaban.