Lakin and Freed & Weiss attorneys duke it out at hearing

As a nasty hearing loomed in the contest between the Lakin Law Firm and Chicago attorneys for control of class actions, a magic word saved the day.

The word was Yosemite.

Software of that name transmitted backup tapes from Freed and Weiss to the Lakins on May 31, a day before a hearing on the tapes before Madison County Associate Judge Richard Tognarelli.

The Lakins sued for the tapes and other relief in January.

Although Yosemite mostly resolved the tape dispute, Charles Chapman on behalf of the Lakin firm chose to fight a battle he had already won.

At the hearing he said tapes they got May 17 and May 29 were useless.

"They did not tell us what programs had been used to put the stuff in or what we could use to get it out," Chapman said.

"Lo and behold, we did receive this program yesterday afternoon that enabled the computer people to take some of the information off the tapes."

He said he would like to call office manager Steve Schweizer to testify.

"They ran this stuff all night trying to find out if everything is there," Chapman said. "They don't think we've got everything from Freed and Weiss even yet."

He asked for an order allowing a computer person to go to Freed and Weiss and plug into their computer.

For Freed and Weiss, Michael Nester of Belleville said the firm got its first notice of a problem May 29.

He said on May 31 his client Paul Weiss identified the software to Schweizer as Yosemite.

"Mr. Chapman in his remarks, I believe, has indicated that the information concerning the Yosemite backup software has been beneficial," Nester said.

On a phone for Freed and Weiss, Karen Levine of Chicago said, "We are providing the backup tapes in the manner in which they were kept."

She said Chapman should have called or sent a letter.

Chapman said, "They filed nothing until the eve - in fact, a week or two before this hearing - and then finally graciously give us useless tapes."

He said only yesterday did Freed and Weiss give what they could have given all along.

"We weren't asked," Levine asked.

"You have been asked for several months," Chapman said.

"Wait a minute now," Levin said. "This was a contested issue."

Tognarelli said both sides might be at fault a bit.

"While I have the people here, Chapman said, "I don't think it will take more than 15 minutes to put them on so that you are aware of the frustration we are feeling."

Nester objected and said he thought the court understood the plaintiff's position.

Tognarelli said he didn't need a record on it.

Chapman said, "I would like to be able to ask the court for an order without any further hearing in the event that they haven't given us what they say they have given us."

Nester objected.

Tognarelli said he would not require a contingency.

He told Nester and Levine that if they came back on a motion to compel he would assess costs.

Chapman asked Levine, "Are you saying to the court that all of the files that should be sent to Lakin are on those two tapes that have been sent?"

Levine said that was her understanding.

"There may be issues that are not the fault of our client that may be the problem with your computer system," Levine said. "We need to get to the bottom of that."

Chapman aked if she would like to hear Lakin's expert talk about the Freed and Weiss computer system.

"He can explain to you how well your system works," Chapman said.

Levine said, "They may have to do something to their computer in order to access it."

Tognarelli said, "I think your computer folks may need to tell their computer folks how they need to access it."

Next, Chapman asked Tognarelli to declare a letter from the Lakin firm to class action clients appropriate.

The letter offered a choice between the Lakins and Freed and Weiss.

Nester told Tognarelli, "It is improper for this court to rule on that particular issue."

"That issue should be reserved to the judge who is handling that particular case," he said.

Levine said, "Some of these issues have to do with a proceeding that is already pending in Chicago."

"We are withdrawing and I don't think that there's any need to make any other determinations," she said.

Chapman said, "All we asking for is a simple order saying that that letter is an appropriate one based upon the matters before the court."

Tognarelli said, "So ordered."

Levine, on the phone, missed that. She asked if there was a ruling.

Tognarelli said, "I am sure each judge in each case is going to consider the letter anyway no matter what I do, but I will order that it is an appropriate letter."

Chapman asked for leave to amend the complaint. Tognarelli granted it.

An associate judge hears the case because the Lakins sued in chancery court. Madison County assigns chancery cases to unelected associate judges.