Nielsen had just sat down, but he rose again to address the judge. “That’s correct. Richard Kostas was also named a defendant.”
Arnetti said, “The court is aware of the local news, Mr. Nielsen.”
“Yes, Your Honor. Mr. Kostas died last week.”
“I was sorry to hear this. We are here on an injunction, which this court cannot enter against a deceased person. I assume plaintiff will dismiss.”
Nielsen quickly replied, “Not at this point, Your Honor. I recognize this is a hearing for injunctive relief, but my client intends to proceed with additional, future counts under this case number. A claim for the return of my client’s property will be advanced against the Estate of Richard Kostas.”
Judge Arnetti looked skeptical. “Has an estate been opened yet, Mr. Nielsen?”
“No, Your Honor. Not to our knowledge.”
Judge Arnetti placed her elbows on the desk and meshed her fingers. “Issues concerning Mr. Kostas’s liabilities should be resolved in probate court. Not here. Dismissal seems warranted.”
“Your Honor, Benton Dynamics respectfully opposes a dismissal at this point, because the probate court cannot issue injunctions. Only the Circuit Court can issue that equitable relief. As soon as an estate is opened, the plaintiff will sue the executor and any heirs in possession of my client’s files. For this reason, Benton Dynamics asks that we proceed today against only Defendant Marisa Dupree, and not dismiss the case against the late Richard Kostas.”
The judge turned to me. “Mr. Seagraves, your position?”
I stood to address the court, my shoulder still vaguely sore from firing a shotgun on Saturday. “No position, Your Honor. I represent only Ms. Dupree.”
I sat down and glanced at Marisa, whose confused expression was now familiar to me. She had no way of knowing that I might be able to bring in more evidence if Kostas remained in the case, but that was yet to be determined.
The judge spoke to attorneys for Benton Dynamics. “I’ll defer dismissal for now, but files don’t gather dust on my shelves. Amended pleadings in ten days. Counsel, other preliminaries?”
I rose from my chair. “Motion to sequester the witnesses, Your Honor.”
“Granted,” Judge Arnetti announced. “All witnesses for the plaintiff and defendant who will testify today are ordered to wait in the hallway until summoned. While sequestered, you will not discuss your testimony with the other witnesses until this hearing has concluded.”
E.J. Nielsen pointed to the back door of the courtroom and directed Steve Gunther and a few others to wait outside. The witnesses looked baffled, but they followed his instructions and started to leave. I intended to call only Marisa Dupree to the stand. As a party, she could remain at the trial table. One corporate officer, probably the CEO, stayed next to E.J. Nielsen. The other employees of Benton Dynamics, however, had to wait outside and not share their testimony or my questions with each other. They would have a harder time backing each other up when it was their turn to take the stand.
Leaning toward Marisa, I whispered, “You recognize all these people?”
“Yeah,” she replied. “Co-workers. But that’s Oscar Yoshida, the cybersecurity chief who got fired. I didn’t expect him here.”
I swiveled in my chair and located Mr. Yoshida. He slowly stood up and walked out of the courtroom. The former head of cybersecurity had been sitting next to FBI Special Agent Wolanski.
When the last of the plaintiff’s witnesses had exited, Judge Arnetti asked, “Counsel, are we ready to proceed?”
E.J. Nielsen said, “Yes, Your Honor.”
I said, “Ms. Dupree is ready.”
Judge Arnetti asked, “Opening statements?”
E.J. Nielsen took notes to the podium and adjusted the microphone. Because the jury box was empty, he spoke directly to the judge. In a deep, resonant voice, he gave a forceful introduction of the case he would present.
“Your Honor, the evidence will prove that Marisa Dupree and Richard Kostas were employees of my client, Benton Dynamics, Inc. They signed nondisclosure agreements and worked under strict guidelines to maintain the secrecy of their research, which is of the utmost value to the plaintiff. Benton Dynamics develops technology for the United States military and other influential clients. The evidence will also show that Ms. Dupree and Mr. Kostas, at various times and in various manners, wrongfully and improperly acquired access to the proprietary data of Benton Dynamics. They copied files without permission and took them off site for purposes yet to be determined.
“Due to the sensitive and classified nature of the research, the loss of files would financially devastate my client. The data is valuable to both business competitors and hostile foreign governments. This case also has consequences for national security.
“Today, the plaintiff seeks redress from this Honorable Court, beginning with an injunction to prevent Marisa Dupree from viewing, copying, transmitting, or passing on the confidential files of Benton Dynamics. Thank you.”
Without a trace of a reaction to Nielsen’s opening statement, the judge faced me. “Mr. Seagraves.”
I stepped to the podium. “Your Honor, my client, Marisa Dupree, denies taking any proprietary data from the plaintiff. It is true that Ms. Dupree worked for Benton Dynamics, at least until recently. The evidence will show that she signed and was bound by a nondisclosure agreement. All employees, including those in research departments, sign such contracts. We have no dispute there. As a senior researcher, my client also had the ability to copy files and transport them to remote locations when Benton Dynamics requested. That was part of her job.”
I gripped the sides of the podium and leaned forward. “Where the plaintiff and the defendant differ is the claim that Ms. Dupree copied files without authorization or used them improperly. My client denies these allegations, which the plaintiff must prove … not with conjecture, suspicion, or guesswork … but with evidence. In every lawsuit, the plaintiff has the burden of proof. Here, Benton Dynamics must prove that my client, Marisa Dupree, stole the missing files.”
Pausing for effect,