Attorneys who once represented the Dimock Twp. man sued by gas giant Cabot Oil & Gas must now pay the bills the gas company ran up in repeatedly trying to get those attorneys’ financial records, Susquehanna County’s top judge said last week.
In another development, since those same attorneys still had not turned over the requested records last week, Cabot withdrew from settlement discussions with them, saying they only agreed to the discussions under the conditions that the defendants continued to exchange pre-trial documents and negotiated in good faith.
“Because the Defendants refused to negotiate in good faith, Cabot withdrew from the conference in early March,” Cabot spokesman George Stark said in a prepared release this week.
The defendants include Kansas City, Missouri, attorney Charles F. Speer and members of the Kingston, Luzerne County, law firm of Fellerman & Ciarimboli. The lawyers once represented anti-fracking activist Raymond Kemble of Dimock.
Meanwhile, an attorney for those lawyers will now ask the state Superior Court to review President Judge Jason J. Legg’s order directing them to turn over their personal financial records. That court has yet to act on a similar appeal from a previous Legg order filed last year. The lawyers’ financial records are important to the case if a jury decides to award damages.
“The Plaintiff’s refusal to participate in a settlement conference would be an indication that this action was not intended to seek compensatory damages, but instead an attempt to harass, embarrass and annoy the Defendants while generating exorbitant and unnecessary legal expenses which Plaintiff’s counsel seeks to recover from the Defendants,” the lawyers for Kemble’s former attorneys wrote.
Cabot sued Kemble for breach of contract in 2017 claiming that he violated an agreement not to bad mouth the company, a major Marcellus Shale natural gas driller. In its lawsuit Cabot claimed that Kemble conspired with the attorneys in filing a frivolous lawsuit designed to extort settlement money from the company based on what they knew to be already settled claims regarding pollution caused to his home water well.
Cabot claims that instead of abiding by his agreement Kemble traveled across the country — and even as far as Europe — frequently appearing as the focus of the anti-fracking movement. Kemble was sometimes pictured holding a large jug of putrid looking fluid he said was drawn from his water well.
Kemble had in 2012 received over $180,000 from Cabot for pollution caused to his Carter Road water well in exchange for his agreement not to disparage the company. In a deposition taken last year, Kemble claimed that his former attorneys acted without his knowledge when they brought the 2017 lawsuit against Cabot. That lawsuit was later dismissed.
Pre-trial testimony revealed that prominent Washington, D.C., and New York based anti-fracking organizations spent tens of thousands bankrolling Kemble and other individuals for travel to and from speaking engagements, other public appearances and other expenses.
Legg’s order Friday imposed monetary sanctions for the attorney defendants’ repeated failure to turn over records. The sanctions include the costs incurred by Cabot in preparing legal arguments seeking the records and related expenses, including travel.
In a three-page order issued late in the afternoon, Legg described the pre-trial phases of the case as “tortured” and noted that even after a hearing Friday the defendants still had not produced the requested information.
“Defendants have provided no reasonable excuse for not only the initial failure to respond but also the blatant disregard of this court’s order that compelled production no later than November 25, 2019,” Legg wrote.
An earlier appeal from a Legg order to produce documents is already pending before the Superior Court, the state’s second highest appeals court.
The two sides broke off settlement negotiations just before Friday’s hearing. According to papers on file in the case, the defendants offered Cabot $50,000 to settle the case, with Cabot responding with “a demand for $3,000,000 (which is also the limit of the Defendants’ combined malpractice insurance policies).”
“This offer represents a good faith offer as the Plaintiff’s (Cabot’s) only itemized damages are in the form of legal bills totaling approximately $90,000 for the 55 days that the 2017 action was pending in federal court,” wrote attorneys for the defendant lawyers.
The two sides have fought a drawn out battle over precisely what and how much information should be exchanged before trial. Friday’s hearing represented yet another skirmish.
“They do not want to give these records to an adverse party’s counsel, period,” attorney Kevin C. Hayes told Legg on behalf of the attorneys sued by Cabot.
“We served our request in August. They knew we had a documents request,” Cabot attorney Amy L. Barrett said during Friday’s in court arguments.
“This seems like deja vu all over again,” Legg said at one point during the proceedings.
The ongoing fight has produced a number of significant rulings by Legg. A July 2019 order by him blocked the attorney defendants from using the traditional attorney-client privilege to avoid answering questions about their representation of Kemble.
Another order also forbade the attorney defendants from using what is known as the work privilege, writing “the work product privilege does not apply to this litigation as the underlying question becomes the knowledge and state of mind of the attorney defendants in connection with the filing of the 2017 litigation.”
The content of their advice, conversations and research with Kemble could be crucial to Cabot’s lawsuit considering Kemble’s claim he knew nothing of the lawsuit.
Kemble has run through several attorneys in the course of his three lawsuits. Cabot’s lawsuit initially contained a demand for $5 million but lawyers later dropped it after the judge criticized it as a publicity stunt.