Kin Draws Small Firm Lawyer Into High-Profile Supreme Court Privilege Case

J. Craig Smith is an associate at a Bridgeport, Conn., personal injury firm. But this fall, his work took him to Washington, D.C. As luminaries of the legal world walked by, he sat at the counsel table in the U.S. Supreme Court.

And he had a cousin from Georgia to thank for it all.

"When my father called me from Georgia [in 2006] about Norman being fired, I didn't know if I could do anything for him," said Smith. "But my Dad said, 'Remember who you are, and where you're from -- we stick by our own.' I knew I had to do right by Norman ... . When I got that phone call, it was the beginning of a truly wild ride."

It all started in a carpet mill. Norman Carpenter, a modest, self-described "mountain man" rooted to the hill country of northwest Georgia, supervised a shift of about 100 carpet factory workers. One day in 2006, he wrote an e-mail to his human resources department mentioning that one of his workers said she was undocumented.

In subsequent e-mails to Mohawk Industries' HR department, Carpenter said he had used an interpreter to check with the rest of his immigrant crew, and that 90 percent of them were also undocumented.

That e-mail exchange halted abruptly, and Carpenter was directed to the company's in-house legal department. He quickly found himself atop a litigation issue as explosive as a powder keg.

Unknown to him, his employer had been embroiled for more than two years in a class action charging the company with federal Racketeer Influenced and Corrupt Organizations Act violations. The allegations were that Mohawk was engaged in an illegal conspiracy to use undocumented workers to drive down labor costs.

At the offices of Mohawk's law department, Carpenter was ordered to confer with the company's lead RICO defense lawyer. Behind closed doors, Carpenter alleges, he was pressured to retract his statements about undocumented workers. He refused to, and was fired.

So Carpenter turned to a lawyer he trusted. That would be his first cousin, J. Craig Smith, who grew up nearby in Georgia and, at the time, was a fourth-year associate of Bridgeport's Koskoff, Koskoff & Bieder. Smith, in turn contacted a two-man Atlanta employment law firm. The trio of lawyers then proceeded with a federal suit against Mohawk for wrongful termination and witness tampering in early 2007.

Mohawk, in its defense, contended that it was Carpenter who was the lawbreaker, and that he had, without company knowledge, hired illegal workers.

Despite Mohawk's hostility, Carpenter was reluctant to testify against his former employer in the RICO case. But in Carpenter's own case, he sought discovery material from Mohawk of anything justifying his firing. That would include Carpenter's talks with the RICO defense lawyer. Mohawk strenuously opposed disclosing that information, claiming attorney-client privilege.

A federal trial judge disagreed, ruling that Mohawk should disclose the material leading to Carpenter's firing. The judge found that Mohawk had already waived attorney-client privilege on this topic during the RICO litigation.

Mohawk appealed to the 11th U.S. Circuit Court of Appeals, which decided that it lacked jurisdiction to provide an interlocutory ruling on the privilege question. The 11th Circuit said Mohawk would have to wait until the end of Carpenter's wrongful discharge case, and then file its appeal.

Mohawk's lawyers felt this was one issue it had to fight. If a trial court erroneously makes a ruling that attorney-client privilege does not apply, they argued, the "cat is out of the bag" and the privileged information will affect the case. Even if an appellate court reverses the decision, they contended, serious harm from disclosure of privileged information has already been done.


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Michigan Files Suit in High Court Over Asian Carp

TRAVERSE CITY, Mich. -- Michigan asked the U.S. Supreme Court on Monday to close shipping locks near Chicago to prevent Asian carp from invading the Great Lakes and endangering their $7 billion fishery.

State Attorney General Mike Cox filed a lawsuit Monday with the nation's highest court against Illinois, the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago. They operate canals and other waterways that open into Lake Michigan.
Bighead and silver carp from Asia have been detected in those waterways after migrating north in the Mississippi and Illinois rivers for decades.

Officials poisoned a section of the Chicago Sanitary and Ship Canal this month to prevent the carp from getting closer to Lake Michigan while an electrical barrier was taken down for maintenance.

But scientists say DNA found north of the barrier suggest at least some of the carp have gotten through and may be within 6 miles of Lake Michigan. If so, the only other obstacle between them and the lake are shipping locks, which open frequently to grant passage for cargo vessels.

The lawsuit asks for the locks and waterways to be closed immediately as a stopgap measure, echoing a call by 50 members of Congress and environmental groups last week. But the suit goes further, also requesting a permanent separation between the carp-infested waters and the lakes.

That would mean cutting off a link between the Mississippi and Great Lakes basins created more than 100 years ago, when Chicago reversed the flow of the Chicago River and began sending sewage-fouled Lake Michigan water south toward the Mississippi River.

"The Great Lakes are an irreplaceable resource," Mr. Cox, who is seeking the Republican gubernatorial nomination in Michigan, said at a news conference in Detroit. "Thousands of jobs are at stake and we will not get a second chance once the carp enter Lake Michigan." He likened the fish to "nuclear bombs."

Mr. Cox went directly to the Supreme Court because it handles disputes between states.

Michigan is seeking to reopen a case dating back more than a century, when Missouri filed suit after Chicago reversed the flow of the Chicago River and began sending sewage-fouled Lake Michigan water south toward the Mississippi River.

After that issue was resolved, several Great Lakes states, including Michigan, renewed the suit with a new complaint: Chicago's diversion of water away from the basin was harming the lakes by lowering water levels.

The high court has ruled on the matter numerous times, setting ceilings on the amount of Lake Michigan water Chicago could divert. The present limit is 2.1 billion gallons a day.

Michigan's suit argues that continued operation of the locks represents another potential injury to the lakes. It asks the court to immediately order them closed, and to create new barriers to prevent the carp from entering the ship canal from nearby waterways during floods.

Obama administration officials last week pledged $13 million to prevent carp from bypassing the electronic barrier by migrating between the Des Plaines River and the canal.

The lawsuit also asks the Supreme Court to require a study of the Chicago waterway system to define where and how many carp are in those waters and to eradicate them.

Noah Hall, an assistant professor at Wayne State University's law school, said Michigan has a good chance of prevailing if it can show the potential harm posed by Asian carp would outweigh the benefits of keeping the locks open.

"The carp invasion is a good textbook example of irreparable harm,'' Mr. Hall said.

Illinois Attorney General Lisa Madigan's office was reviewing the suit and had no immediate comment, spokeswoman Natalie Bauer said.

Metropolitan Water Reclamation District spokeswoman Jill Horist said, "Even if the locks were closed there's still a variety of ways for DNA or Asian carp to enter Lake Michigan.''

Spokeswoman Lynne Whelan said the Army Corps could not comment on pending litigation.

American Waterway Operators, a trade group of U.S. barges and tugs that haul cargo on the waterways, said closing the locks even temporarily "would be very devastating for our industry ... but also for people in the Chicago region.'' It would force vessels to offload their cargo onto trucks or rail cars, boosting transportation costs and air pollution, vice president Lynn Muench said.

Michigan's lawsuit said losses to barge traffic and recreational boats would be "relatively minor and finite.''


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