The Girl From Kathmandu

by Cam Simpson

  En route back to the horseshoe ridge, Kamala made her own trip to Manakamana, flying in a cable car up the side of a mountain she used to climb with her family as a child. She had never had the heart or the stomach to make sacrifices at the pillar of the temple the way other pilgrims did, but she did make offerings of flowers and rice and incense in some of the temple’s darkened alcoves. More than just offering prayers that day, she tried using her prayers to speak directly to Jeet, and with the images she had seen on the video seared into her mind, she made him a promise: “I swear that I will do everything in my power to try to bring justice to you.”

  * * *

  While McOwen was in Nepal, Fryszman was preparing to return to Judge Ellison’s courtroom in Texas. He had called a hearing on March 12, 2012, to address what was becoming a total breakdown between her and the lawyers from KBR. The company was putting up roadblocks in the discovery process, refusing to search for or hand over anything beyond the initial burst of searches it had conducted on just ten current and former employees. That refusal had now spanned more than a year. Fryszman had originally feared that KBR’s proposed search terms were either so broad that they would return everything or so narrow that they would return nothing, but she figured it was the company’s time to waste. Now, standing before Ellison, she felt she had stepped into a trap.

  Michael Mengis, the KBR lawyer, found creative ways to illustrate for the judge how much money KBR had been required to spend on “a fishing expedition.” It had to pay internal costs to do the searches, he said, and then it needed to pay lawyers from Mengis’s firm to review the potentially relevant documents. “The initial search terms that we ran on the ten persons of interest kicked back 2.3 million hits,” Mengis told Ellison. That sounded overwhelming, but anyone who has conducted the simplest Google search knows that such a big headline number can also be misleading. After all, a Google search on the name “Robert Gerlach” alone returns 527,000 hits, but very few of them are even remotely related to the former KBR procurement manager for Anbar Province who was one of the ten “persons of interest” the discovery focused on. Still, Mengis craftily built on his headline number as he spoke to Judge Ellison. “We believe that the persons of interest right now are costing KBR, on average, $60,000 per person to search and review and produce documents—$60,000,” he repeated. He reframed this for the judge: “It boils down to almost a hundred dollars a page for electronic discovery from what we have had to review. And you get lost maybe in what we have produced, but we have reviewed four times what we have produced to determine whether or not something is responsive.” He explained that KBR had ceased conducting any more searches or providing any more documents, a position he told the judge he had taken “now for well over a year,” because the company believed “that the ten [people] we have looked at is sufficient.” The basis of that belief was simple, Mengis said. “We have absolutely nothing from them [the plaintiffs] that would substantiate their claims, yet they want to go on a fishing expedition with our records, and especially our electronic records, that has been costly to date. And we have been very, I think, accommodating when it comes to what we have provided so far, but we are at our end in terms of agreeing to produce more.”

  Ellison liked Mengis, another native son of Louisiana and a former Catholic seminarian who had also clerked for a federal judge. Perhaps most important, Mengis spoke for Ellison the way genteel Southern lawyers were meant to: slowly, and with a deep breath between each word. Still, Ellison did not appear to be buying Mengis’s argument. “It seemed to me, though, that the ten custodians or the ten individuals in these original search terms were never intended to be the limits of the universe of searching,” Ellison told him, adding moments later that the law required a judge to consider several variables in determining the scope of discovery allowed. “And of course one of them, is the importance of the issues at stake,” he told Mengis, “and here, the issues at stake are highly, highly important.” Then Ellison put it bluntly: “Now, we do have, tragically, people who are dead.”

  Mengis refused to yield. “KBR has spent in excess of $700,000, probably approaching a million dollars now in discovery, on a case that should never have been filed based on the evidentiary support they had prior to filing,” he said. He and the other lawyers from his firm, along with KBR’s in-house legal team, may have believed even more firmly now that there was not enough evidence of the company’s culpability to warrant the lawsuit, but the defense had already lost that fight more than two years earlier. Fryszman, of course, argued that Mengis was completely wrong about the developing evidence, in terms both of what KBR had handed over thus far and of what she was generating on her own without the company’s help, but for strategic reasons she said as little about it as possible in court, or at least as little as Ellison would let her get away with, to avoid foreshadowing her strategy. She also suggested that KBR was sitting on the ball. “I think,” she told Ellison, “Mr. Mengis is a master at slowdown.” The less evidence she had from within KBR’s files about the true nature of its relationship with Daoud, and about KBR’s potential participation or acquiescence in Daoud’s conduct, the harder it would be for her in the next, major battle of the case.

  Ellison ordered the two sides to meet over lunch that day to try to resolve their discovery differences, and even offered to pick up the tab, telling them to come back to his courtroom after lunch with a resolution.

  That day, and for another year to come, in contentious hearing after hearing, in vitriolic e-mail after e-mail, in motion after motion, there would be little give from KBR. Mengis and the other defense lawyers even took a surprising tone before Ellison on the issue, almost dictating terms to him about what the company would and would not do regarding the handover of its internal records. Taking advantage of Ellison’s deferential manner to the lawyers appearing before him, KBR’s lawyers tried to muddy the waters regarding the discovery disputes at every turn with extensive presentations rehashing their claim that the case was frivolous, including once when Ellison let them put on a PowerPoint presentation. Perhaps they knew they could continue to refuse to budge so long as the referee was a federal judge who came off the bench to shake their hands after a hearing, and who, by choice, avoided aggressive confrontation. Time and again, Ellison’s demeanor worked in KBR’s favor, at least in slowing down the critical discovery process. Over the course of a year, Judge Ellison simply did not rule on key discovery questions. Some of the documents the company did hand over—the documents Mengis had said KBR was spending so much money to find—were so obviously worthless that they seemed like schoolboy pranks from the defense team, including when it dumped nineteen thousand pages of Al Asad laundry logs on Fryszman.

  Perhaps it was no accident that the defense team’s ceaseless arguments about the “very expensive fishing expedition” for a “frivolous” lawsuit came almost immediately on the heels of another years-long case in front of Ellison in the very same courtroom. Before the discovery war erupted, Ellison had presided over the trial of KBR in the Jamie Leigh Jones case. Jones, who had gone to Iraq for KBR as a twenty-year-old in July 2005, alleged that only days after arriving in Baghdad, she had been drugged and gang-raped by coworkers, and that company representatives had locked her in a trailer after she reported the rape. Her lawsuit had advanced, at least in part, on the wings of countless dramatic media appearances, and even the passage of a new federal law inspired by her case. KBR had countered that Jones was a world-class self-promoter—she had already sold the rights to her story for a docudrama—and that her allegations were demonstrably false, but Ellison, backed by the federal appeals court, brought the case to trial over KBR’s objections and following years of intense skirmishes. Several important discrepancies about her story, however, emerged during the summer 2011 trial, including some from medical evidence. In the end, members of the jury didn’t buy her story, and found in KBR’s favor after only a day and a half of deliberations.1 In the wake of the verdict, the company’s lawyers had as
ked Ellison to force Jones to pay more than two million dollars in attorneys’ fees, arguing that her claims had been fabricated and malicious, and her suit frivolous. Ellison rejected the demand, but gave KBR a greatly reduced bill for costs unrelated to attorneys’ fees.

  Now, only three weeks later, KBR’s defense team in Kamala’s case used language reminiscent of terms the company’s lawyers had just raised before Ellison in the Jones proceedings, as if to remind him of how much his judgment had hurt KBR already: frivolous, false and unsubstantiated allegations, costing us a fortune. Advocates for victims of sexual assault saw the Jones verdict as a setback for their cause, with one publication even declaring in a giant, bold headline “Jamie Leigh Jones Probably Lied About Her Rape. That Doesn’t Mean Most Women Do.”2 Yet it is unlikely that anyone envisioned its potential to damage the cause of demonstrably clear victims of the war seeking to hold KBR accountable before the very same judge.

  When it came to KBR’s posture and intransigence, perhaps another moment proved more significant, this one occurring in Washington less than three weeks after Judge Ellison rejected KBR’s demand that Jones pay its legal fees. Beyond a small circle of corporate defense lawyers nationwide, few noticed that on October 17, 2011, the U.S. Supreme Court announced that it would hear arguments in a case focused on whether corporations could be sued in U.S. courts for human rights abuses overseas. At the heart of the issue was the 1789 statute that Fryszman and star human rights litigator Michael Hausfeld had employed in Kamala’s case and others, including the Holocaust cases. The Supreme Court case involved a lawsuit alleging that Royal Dutch Shell had aided and abetted the torture and murder of Nigerians who had protested against oil exploration and production, and their environmental impact, on ancestral lands in the Niger Delta. It alleged that government military and police forces had responded to those protests by attacking villages, beating, raping, killing, and arresting residents and destroying or looting property. The company was accused of aiding the abuses by providing compensation to government forces, feeding them, giving them transportation, and allowing them to stage attacks from company properties. The lead plaintiff was Esther Kiobel, the widow of a murdered activist, who had fled Nigeria and received asylum in the United States.

  The U.S. Court of Appeals for the Second Circuit, based in New York, had found that international jurisprudence in the post-Holocaust world did allow people such as Kiobel to bring human rights cases “against states and against individual men and women” in American courtrooms, “but not against” strictly legal persons “such as corporations,” in this case, Royal Dutch Shell. It was the first time an appeals court had held that companies could not be sued under the law, and so it had the potential to affect human rights cases filed against corporations across the country. A growing body of law in the United States had extended the rights and privileges enjoyed by human beings to corporations, and yet it appeared the the Supreme Court might now protect corporations from some of the attendant liabilities, at least beyond the country’s borders.

  Mengis and KBR had been waving the appeals court decision out of New York in front of judge Ellison since 2010, but it had no automatic authority in his courtroom unless and until the U.S. Supreme Court blessed it. Now the high court had said it would hear the case, portending potential trouble for Kamala and the other families. As it dug in against them, KBR literally put its money into the pending Supreme Court case as a way to get the families’ lawsuit dismissed, paying for David Rivkin and three other lawyers from Baker & Hostetler to file a friend-of-the-court brief with the highest court in the nation. Rivkin and his colleagues told the Supreme Court justices that KBR condemned human rights abuses worldwide, and then pointed to the company’s frequently invoked “Code of Business Conduct.” “Despite KBR’s record of leadership on these issues, it is a defendant in a lawsuit under the Alien Tort Statute concerning other companies’ worker recruitment practices undertaken in the sovereign territories of foreign nations and said to violate the norms of customary international law. Although premised on allegations of KBR’s participation or acquiescence in wrongful conduct that, to this day, remain without any support in fact, that lawsuit has dragged on for four years, imposing substantial litigation and reputational costs on KBR.” On the very first page of its first brief to the nation’s highest court about Kamala’s lawsuit, KBR called itself a leader in global human rights, and then repeated the notion that the case was not about its supply chain, its human supply chain, but about “other companies’ worker recruitment practices” and that there was no “support in fact” that it had acquiesced or participated in those practices.

  If there was a discernible moment when KBR first went on the offensive in the lawsuit from Kamala and the other families, it was probably the day after the Supreme Court said it would hear Esther Kiobel’s case. The company’s lawyers had remained silent for nearly three months about Fryszman’s request to expand discovery, but on October 18, the day after the high court’s announcement, Mengis fired off a letter to Fryszman. Claiming once again that the case was becoming “a very expensive ‘fishing expedition, which appears to be based on nothing more than your suspicions,’” Mengis declared that KBR would not search any additional employees’ records as part of the discovery process. He also heaped scorn on Fryszman for an interview she had done that January with the National Law Journal, in which she indicated that she had first become aware of the case of the twelve men from Nepal by reading the Chicago Tribune investigation. “Having no evidence other than those news reports, you went looking for clients and a lawsuit,” Mengis wrote, before adding that Fryszman had not yet produced anything “that would support any of your unsubstantiated allegations against KBR.” The defense was digging its trench.

  Fryszman did not connect it to the impending arguments before the Supreme Court, but KBR’s lawyers even proposed that Judge Ellison hold off on making any major decisions in Kamala’s lawsuit until the Supreme Court had ruled in Kiobel, confident in their belief that it could make Kamala’s case go away. Ellison allowed the discovery disputes to drag on unresolved, but he did not allow the entire case to grind to a halt. That’s when a crack in Fryszman’s case threatened to deepen, and KBR moved in for the kill.

  * * *

  On July 20, 2012, Buddi Prasad Gurung raised his right hand and swore he would tell the truth. It had been nearly eight years since he climbed into a vehicle in Amman, Jordan, that was part of a much bigger convoy along the Highway Through Hell charged with delivering dozens of Nepali workers to the Al Asad Air Base, including the twelve who were kidnapped and executed. Today, he sat in an air-conditioned conference room on the tenth floor of a Downtown Los Angeles skyscraper. Featuring a helicopter landing pad on the roof for corporate travelers, the building housed the offices of Christopher Tayback, the LA lawyer representing Daoud and Partners. Over the course of Gurung’s two-day cross-examination, at least eleven different lawyers from all sides of the case would be in the conference room, along with two interpreters, a videographer, a court reporter, and a Daoud manager from Amman. Another Baker & Hostetler lawyer, Billy Donley, was there for KBR, and played an increasingly prominent role as the company began to go on the offensive.

  From the first hearing in the case, it had been apparent to everyone that Gurung’s journey to the convoy had been completely different from that of the twelve dead men, a difference that the defense had used to attack the overall case. Now, in the deposition, Tayback and Donley wasted little time before zeroing in on the most glaring of these differences and weaknesses. With the camera rolling, Gurung said that his journey to Al Asad did not start with “Moon Light Consultants” in Kathmandu or continue with forty-five days inside in a dark room in Jordan. Instead, he had gone through a different Nepali man, someone who seemed to be a friend more than a labor broker, to New Delhi, where he spent nearly three weeks. While there, he and other Nepalis “just stay in a room, sleep in the room, sometimes we just walk around close by, and sometimes
we go far with, you know, in a bus, for [a] visit. And it was a very big place.” The bus rides took the men sightseeing, Gurung said. Then, after arriving in Jordan, he stayed in a completely different location from the men who would be kidnapped and executed, and testified that he stayed in what he called a hotel. When he was asked, “Were you free to leave your hotel room and walk around whenever you wanted?” Gurung replied, “Yes. We were able to get out of the hotel.” At another point, he added that he would “sometimes walk around the park and go back to [the] hotel.” It was by no means fatal to the case, but Gurung’s testimony in Los Angeles seemed to do little to bolster the plaintiffs’ overall portrait of coercion necessary to call his experience “human trafficking.” Perhaps most devastating to his credibility, Gurung admitted that he was fired after fifteen months on the job at Al Asad because KBR had found a bottle of whiskey in his duffel bag during a search. Although none questioned that Gurung was in the convoy with the twelve, the defense would use his weaknesses to attack the entire narrative the plaintiffs had constructed around the twelve dead men.