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Legal-Fees Info to be Returned, But Law Firm ‘Sandbox’ Spat Continues

Posted Apr 10, 2009 3:21 PM CDT
By Martha Neil

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Updated: Two well-known law firms have partially resolved what one participant has termed a "sandbox" dispute over a PowerPoint presentation about legal fees paid by Sherwin-Williams Co. in lead paint litigation. But harsh words continue on both sides.

In an agreed order (PDF) yesterday, Motley Rice, which had somehow obtained the confidential material Sherwin-Williams says was stolen from a board meeting in 2004, has agreed to return all copies. The originals will be filed under seal with the clerk of Court of Common Pleas of Cuyahoga County, Ohio, according to the order, in which all parties retain their rights and no liability is admitted.

Last week, as discussed in earlier ABAJournal.com posts, Jones Day filed suit (PDF) in Ohio on behalf of Sherwin-Williams against unnamed John Doe defendants and Motley Rice, which represented the state of Rhode Island in lead paint litigation there against Sherwin-Williams. The new Ohio litigation seeks both the return of the PowerPoint presentation and to unmask the identity of the person who provided it to Motley Rice. It also seeks damages for "harm" caused to the paint manufacturer by Motley Rice's acquisition and use of the documents.

“Now this case will proceed into discovery to determine how Motley Rice got the board presentation, who gave it to them and what other confidential business documents the law firm has," partner James Wooley of Jones Day said in a written statement (PDF) e-mailed by a public relations firm to the ABA Journal. "Regrettably, Motley Rice is still not coming forward voluntarily with that important information.”

But Fidelma Fitzpatrick of Motley Rice says it is Jones Day whose conduct is regrettable.

The issue of the PowerPoint presentation, she tells the ABA Journal, was already being addressed in state court in Rhode Island, as part of an ongoing resolution of legal costs sought there by Sherwin-Williams as the prevailing party in the lead-paint public nuisance litigation. Although the presentation does not appear on its face to be privileged, Fitzpatrick says, Sherwin-Williams had been granted limited discovery into the issue by a March 25 court order in Rhode Island.

Hence, Motley Rice has filed a motion to dismiss the Ohio action brought last week by Jones Day. The filing also seeks sanctions against the Cleveland-based international law firm.

"Jones Day didn't like the court's order [in Rhode Island], so they went forum-shopping and chose Cuyahoga County," in Ohio, Fitzpatrick tells the ABA Journal. "It is absolutely and completely inappropriate. It is an abuse of the legal system."

Earlier coverage:

ABAJournal.com: "PowerPoint Presentation Sparked Jones Day-Motley Rice ‘Sandbox’ Spat"

ABAJournal.com: "In Document Dustup, Lawyer Compares Jones Day Team to Kids in a Sandbox"

Updated at 4:30 p.m. to include information subsequently provided by Motley Rice.

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