Balance of Power

exculpatory statement was his prelude to dismissal.

    'To be plain,' Bond continued, 'plaintiff 's accusations against these defendants exist at the margins of the law, and rest on 'facts' which will be extremely difficult to prove.

    'At the least, Ms. Costello must prove that Lexington's actions caused John Bowden to act.

    'That Lexington's actions in Nevada are a public nuisance in California.

    'That the SSA controlled these actions in a manner which violates the law of antitrust, or is otherwise cognizable as law.

    'And that this Court should—or even can—issue an injunction of almost unprecedented breadth . . .'

    Where, Sarah wondered, is Bond going? Her fingers gripped the edges of her chair.

    On the bench, Bond sat upright. 'That said,' he continued, 'what the Court cannot say—at least prior to discovery—is that, under the law, there is no conceivable set of facts through which plaintiff can support these claims.'

    Lenihan drew a breath. Eyes closed, Sarah heard Bond conclude, 'For these reasons, the Court must deny defendants' motion to dismiss . . .'

* * *

    With Senator Ayala scowling beside him, Senator Chad Palmer asked the Senate Commerce Committee to vote on the Civil Justice Reform Act. Watching the proceedings on CNN, Kerry murmured to Clayton, 'Vic Coletti's the one who's still shaky. And now I can't reach him.'

    'Then he doesn't want you to. With Lexington's headquarters in his home state, plus all those insurance companies, he must be feeling the pressure.'

    One by one, the vote proceeded; one senator after another, including the Republican moderates, voted with their party—'yes' for the Republicans; 'no' for the Democrats—on a bill which would wipe out Mary Costello's lawsuit. Kerry's tension focused on Coletti.

    Senator Coletti?

    Sitting amidst his Democratic colleagues, Vic Coletti fidgeted. But he cast his vote in a flat, businesslike voice that, to Kerry, hinted at defiance.

    Yes.

    'I hope,' Clayton murmured, 'that Vic's not expecting any favors.'

    The President did not answer. He was already thinking ahead, weighing the motives of one hundred men and women.

    By a vote of ten to seven, Chad Palmer announced, this committee recommends that the Civil Justice Reform Act be considered by the Senate.

* * *

    'The next business,' Bond told Lenihan and Sarah, 'is to shape discovery. How will plaintiff attempt to prove her case?'

    Seemingly heartened, Lenihan stood. 'Our proposed discovery is quite straightforward. We need any and all documents and witnesses relating to the design and marketing of the Patriot-2 and Eagle's Claw bullets; to the sales of the P-2 in states adjacent to California; to the use of the P-2 in crimes; and to Lexington's negotiations with the Kilcannon administration . . .'

    'What about discovery from the SSA?'

    'Among other things,' Lenihan answered carefully, 'all communications by the SSA regarding the contacts between Lexington and President Kilcannon—or between the President and the gun industry . . .'

    'Which,' Bond objected, 'might well be an intrusion on legitimate political activities—such as lobbying and advocacy—protected by the First Amendment.'

    'Not necessarily,' Lenihan responded. 'And it's the only way we can prove that the SSA was at the hub of a conspiracy.'

    'I expect that defendants may have another view. In the meanwhile, whom do you plan to depose?'

    'Representatives of the other manufacturers. The decision-makers at the SSA—in particular, Charles Dane. The key personnel at Lexington— including in design and marketing. Certainly George Callister, its CEO.'

    Bond turned to the defense table. 'And whom might you depose, Mr. Nolan?'

    Nolan stood at once. 'To start, all witnesses plaintiff intends to call at trial. We request that the Court order counsel to submit a witness list, in sufficient time for us to schedule depositions.'

    This, Sarah knew, implicated Martin Bresler; as his exposure neared, Bresler might become even more anxious. 'That's only reasonable,' Bond said to Nolan. 'What other depositions do you want?'

    'The obvious ones—Mary Costello; the police inspector, Charles Monk; Dr. Callie Hines, who operated on Marie Costello.' After a pause, Nolan added, 'Also, anyone involved in the relationship between Joan Bowden and her estranged husband. Including the President and First Lady.'

    Stunned, Sarah absorbed this. Despite Nolan's protestations that she and Lenihan were abusing the lawsuit for political purposes, questioning both Kilcannons under oath was an intensely political act, and a unique opportunity for the SSA. But this seemed to leave Gardner Bond unfazed. 'As to the President and Mrs. Kilcannon,' he answered, 'they may wish to be heard. At least regarding the time and manner of deposition.'

    'Of course,' Nolan agreed. 'Indeed, all discovery—including depositions—should be subject to stringent rules set out by this Court. For example, we ask the Court to bar discovery regarding lobbying, political strategy, or other activities protected by the First Amendment—including communications between Lexington and the SSA.'

    'That,' Bond remarked with veiled irony, 'seems to be the lynchpin of plaintiff's alleged conspiracy.'

    Nolan spread his hands. 'Would the Kilcannon Center want Lexington or the SSA to probe its lobbying, its political strategy, its contacts with politicians? Plaintiff 's supposed discovery is nothing more than political espionage.'

'What do you propose, counsel?'

    'The appointment of a Special Discovery Master. Before we give plaintiff any document which implicates legitimate political activities— whether they relate to plaintiff 's highly suspect antitrust claim, or to the industry's response to President Kilcannon—the Special Master should determine their relevance to an 'unlawful activity.' '

    'Your Honor,' Lenihan called out in protest. 'A discovery master should not be able to decide what documents or witnesses are relevant to our case . . .'

    'And you,' Bond said abruptly, 'should not use this complaint as a hunting license.' Turning to Nolan, Bond said, 'I'm granting your request. Is there anything else?'

    'There is. Specifically, we believe that the purpose of this case is political, not legal—to develop 'evidence' of so-called wrongdoing which plaintiff's counsel can siphon to the media.' With an accusatory glance at Lenihan, Nolan finished, 'We therefore ask this Court to ban the parties from sharing the fruits of discovery with any outside person other than expert witnesses, and to order that any documents or depositions filed with the Court will be sealed until trial.'

    'So ordered,' Bond said promptly.