by Tom Swyers
“Does Helmsley own oil wells in North Dakota?” David asked.
“Yes,” Kincaid responded.
“How many?”
“I don’t know the exact number.”
“More than one thousand?”
“Yes.”
“More than three thousand?”
“No.”
“So, somewhere between one thousand and three thousand wells?”
“I guess so.”
“Don’t guess,” David said. “It’s either yes or no or I don’t know.”
“Yes, then, but it’s more toward two thousand.”
“Okay, now, to where do you ship your oil from North Dakota?”
“Albany, New York.”
“Any other locations?”
“No.”
“So it’s safe to say that the Bakken crude that ignited and injured Benjamin Prior was from North Dakota?”
“Yes.”
“What happens to the oil once it’s shipped to Albany?”
“It’s transported to refineries on the East Coast for processing into product like gasoline.”
“Does Helmsley stabilize the oil before it is shipped? I’m defining stabilization as removing the natural-gas liquids to make the oil nonexplosive.”
“No,” Kincaid said without hesitation.
“Why not?”
“As far as I know, there is no statute or regulation that requires it.”
David knew that Kincaid was correct, but in his mind, Helmsley had a duty to do it, anyway. However, that was something he would have to argue in court and perhaps on appeal.
“Did you know that it’s standard industry procedure to stabilize the Bakken oil before it’s shipped through pipelines?”
“Objection,” Amber said coolly. “Mr. Kincaid is not here as an expert on what is required for pipeline shipment of crude.”
“I’m asking if he knows this in the course of his business or personal experience.”
“You may answer if you know,” Amber said.
“I don’t know if it’s true for every pipeline.”
“If you know, is it true that Bakken crude is stabilized before it is shipped via tanker over water?”
“Again, I don’t know if it’s true for every tanker.”
“If you know, why do pipeline operators and oil tankers require stabilization of Bakken crude before it’s shipped?”
“You’ll have to ask them,” Kincaid quipped.
“You don’t know, then?” David asked.
“Every pipeline, every oil tanker could have different reasons.”
“Could safety be one of them?”
“Perhaps.”
David decided against pressing this issue further. He had made his point, and Kincaid’s testimony would put him on the spot in front of a jury. Tanker routes and pipeline routes did not routinely cross through highly populated areas, and yet these outfits practiced stabilization for safety reasons. But around the rails, where 25 million people lived in oil-train blast zones throughout the country, the company did not stabilize oil before shipment.
David hoped that a jury would be outraged to learn that most of these neighborhoods in the blast zone were home to minorities and poor people. In his mind, no one should accept that Helmsley and the other oil companies put those folks at risk.
“Where are Helmsley’s rail hubs located in North Dakota? By rail hubs, I mean the locations where you load the trains with Bakken crude?”
“Just to the east of Dickinson, North Dakota.”
“Do you own that facility?”
“Objection,” Pottenger blasted. “Define you in your question.”
Amber’s eyebrows shot up; her head swung to look at Pottenger like she’d been slapped in the face. She was the senior associate assigned to the case, and she’d been ousted by the senior partner in full view of everyone.
“I guess I’ve decided to participate,” Pottenger said firmly to Amber and everyone in the room.
Pottenger sat there poker-faced. David wished he could snap a picture across the table. It would make a good mug shot—better than his own.
Amber’s jaw slackened, her lips barely parted. She looked at Pottenger for two seconds. “Could we take a short recess?” she asked.
“Sure,” David said.
Pointing to his office, she asked Pottenger, “Could we have a minute?” When she pointed, David saw the young male attorney at Dick Pot’s desk staring at the same black box, but he looked up when Amber spoke.
Suddenly, David figured out what the black box was all about. It was a speaker, and it was wired to the conference room. Dick Pot had been listening to every word before he’d come into the room. That was his way of maintaining total control. When he’d heard the way the conversation was going, he’d had to step in to take charge.
“Excuse us for a minute, Donovan,” Pottenger said to his client.
“All right,” Kincaid said.
As they left the room, David could hear Pottenger whisper to Amber, “You can’t just do what I say all the time. You have to do what I think.” Obviously, Dick Pot had planned to deal with the deposition a certain way, but something changed his mind.
The line Dick Pot spoke was a blast from the past for David. He’d heard it echoing down a time tunnel from thirty years ago. Back then, he had done exactly as he was told to organize the documents obtained during discovery in a multimillion-dollar case against a computer-software company. Then Dick Pot had fed him this same line and told him to do it over again in a different way. Of course, the client had been billed hourly for David’s time. It had taken months to redo the work, and in the end, it hadn’t mattered because the case was settled. But during that time, Dick Pot’s line had gone through David’s head at least once every hour of every day.
Kincaid repeatedly looked over his shoulder to scrutinize Amber and Pottenger as they talked in the office. David glanced at Moore who was wide-eyed, taking in everything.
Outside, the flurries had turned into a squall. Everyone’s eyes were drawn to the conference-room window as the snow battered against it while they waited. Now the first snow of the season looked like a storm with staying power. They all seemed to be pondering how the snowfall would affect them.
A few minutes later, both lawyers were back at the table. Amber looked pissed as she took Pottenger’s former seat. Pottenger berthed his big bottom snugly between the two arms of Amber’s former chair. He now sat closest to the court reporter and directly across from David. At that point, things took on a new dimension for David. It was Thompson versus Dick Pot from now on, a thought that was vaguely unsettling. All of a sudden, David’s Rikers Island swagger disappeared. Bringing Moore had unsettled Pottenger. Now Dick Pot aimed to unsettle David by putting himself in the middle of the deposition.
It was tit for tat, and David knew it. Even so, it was working, and David raged at himself for letting this man from his past get under his skin.
Time had not been kind to Dick Pot. His skin was the color of the ancient law treatises that lay open at the other end of the conference-room table where some associate had abandoned them. The once-ocean-blue eyes had faded to watery gray. The contrast with Amber’s youth and beauty was striking.
“We’re ready when you are,” he declared to David, with a dismissive glance.
David sat there for a second, speechless. Dick Pot wasn’t going to acknowledge him as a person, would not even give a nod to their working relationship thirty years past. Pottenger just sat there wearing the patented stoic look of a Baxter & Chadwick senior partner. Surely, Amber had mentioned who he was after their previous meeting. David realized that Dick Pot would treat him as if he were the same nameless law clerk who had trudged the hallways of Baxter & Chadwick thirty years ago. It was psychological warfare.
David asked the court reporter to read the last few sentences of the record back. “You asked, ‘Do you own that facility?’ Then Mr. Pottenger said, ‘Objection. Define you in your questi
on.’”
“Okay,” David said. “By you, I mean Helmsley.”
“Just so we understand, then,” Pottenger said smugly, “for the record, they are not one and the same.”
David tapped his pen on the table a few times. He realized Pottenger was going to make this difficult. Dick Pot was inserting himself into the deposition as if he were the person testifying. David thought about calling him on it but decided his dramatic pause and pen tapping had made his point for now. He didn’t want to risk a confrontation at that point.
“I misspoke,” David said. “I apologize. But isn’t it true, Mr. Kincaid, that you are a majority shareholder in Helmsley?”
“Yes, that’s true,” Kincaid said, looking at Pottenger.
“What percentage of the outstanding shares do you own?” David asked.
“A little over sixty percent.”
“Are you compensated with stock options?”
“Yes, that’s part of my pay package.”
“Back to the hub in Dickinson. Does Helmsley own it?”
“Yes.”
“Does Helmsley own any other hubs?”
“No.”
“Does Helmsley use another company’s hub for the shipment of Bakken crude to Albany?”
“No, we only use our Dickinson facility.”
“Does Helmsley handle the shipment of oil from other producers at your hub?”
“No, we exclusively load and ship only our own oil at that facility.”
“What railroad company do you use to transport Bakken crude to Albany?”
“Objection,” Pottenger interrupted. “Relevancy.”
“The purpose of the questions is to establish a chain of custody for the oil that injured the plaintiff,” David said.
“Go ahead,” Pottenger said to Kincaid. “You may answer.”
“We use BNSF from North Dakota to Chicago and then CSX from Chicago to Albany.” The answer confirmed to David that he had sued the correct railroad companies.
“Where is South Heart in relation to Dickinson?”
“It’s west of Dickinson.”
“Isn’t it alongside the same track that Helmsley uses to go east to Chicago and then to Albany from its Dickinson hub?”
“Yes, I believe so.”
“So, I take it that the recent explosion in South Heart did not impact Helmsley’s ability to deliver oil to Albany?”
“No, not really.”
“But any other producer that was shipping Bakken crude to the West Coast would have been impacted, right?”
“I suppose so—if they used that same rail line.”
“Well, there aren’t too many railroad lines going to the West Coast that carry Bakken crude out of North Dakota—”
“Objection,” Pottenger bristled. “Did a question get lost in that last statement of yours?”
“I’m sorry. Okay, let me establish a foundation before I ask a question. Mr. Kincaid, in your capacity as senior vice president of supply chain and continuous improvement at Union Pacific, did you become familiar with a section of rail system known as ‘The Funnel?’”
“I . . . I don’t recall.”
“Let me try to refresh your memory, then. Does Union Pacific run track through Sandpoint, Idaho?”
“Yes, I believe so.”
David thought Kincaid’s response was odd. He should have been sure of the answer, given his prior position with Union Pacific. “Do you recall the BNSF bridge there at Lake Pend Oreille, Idaho?”
“Sure, that’s the one the terrorists blew up the other week.”
“Right. Do people call that bridge ‘The Funnel?’”
“Yes, I think so. It’s been a while.”
“Do you know why they call it that?”
“It’s where three or more major rails converge on the way to the West Coast, if you’re going in that direction. It’s a choke point, a bottleneck for rail traffic. Come to think of it, they might call the entire City of Sandpoint ‘The Funnel.’”
David thought to himself that Ronald Carson had picked a perfect spot to count oil-tank cars. “What do you recall about the bridge?”
“Not much. It’s old, a single track, and spans about a mile over the lake.”
“By single track, you mean it’s like a one-way street?”
“Yes, only one train, one direction at a time, can cross over the bridge.”
“Don’t you have to go over that bridge to get oil to the West Coast from North Dakota?”
“Yes, to a large extent. That was my point before we started this deposition. The terrorists wanted to disrupt our energy supply chain.”
“Where does Union Pacific’s track cross Lake Pend Oreille?”
“Technically, it doesn’t. It crosses the Pend Oreille River.”
“Do you know what happened to that bridge as a result of the explosion?”
“I heard they shut it down.”
“Do you know why?”
“I don’t know why. The reasons haven’t been made public.”
David knew Kincaid was right. The feds inspected the Union Pacific bridge after the explosion because it was so close to the BNSF bridge. There were rumors that the bridge’s support structure had been sabotaged.
“So, by blowing up the train in South Heart and a bridge in Sandpoint, didn’t the terrorists effectively eliminate all the shipment of Bakken crude to the West Coast?”
“Objection,” Pottenger sneered. “Relevancy. Where is this going, Counselor? What does Bakken crude shipments by other companies to the West Coast have to do with this case? The oil that is the focal point of this lawsuit went to Albany, not to the West Coast, and it was shipped by Helmsley, not some other company.”
David knew Pottenger had a point. He was walking a fine line. While he wanted to get information from Kincaid, he didn’t want Pottenger to call off the deposition, claim a privilege, and perhaps seek a court order against him. While David thought he’d win any such motion, as he had wide latitude in conducting a deposition, it would take too much time to get a judge to rule. David didn’t have that time to waste. He knew that the West Coast couldn’t receive Bakken crude as a result of those South Heart and Sandpoint explosions. Now Kincaid knew that David knew it.
More important, now Julius Moore knew it, too.
“Let’s go back to Albany, then,” David said. “Mr. Kincaid, you said that Helmsley uses the BNSF railroad to get oil to Chicago before using CSX track to get it to Albany. Is that correct?”
“Yes.”
“Does the BNSF railroad track that Helmsley uses pass through Valley City, North Dakota?”
Kincaid replied, “Yes,” as David had expected. David knew that the oilman had no choice but to admit that the tracks passed through there. He’d be made out a liar if he didn’t admit it. He was shipping Bakken crude east, and there was only one railroad track that would get his oil from its location in Dickinson to Minnesota and beyond. That track passed though Valley City.
“Did the explosion in Valley City disrupt your oil shipments to Albany?”
“It did not.”
“Why not?”
“The BNSF rail line we use was not damaged.”
“Does the BNSF rail line that Helmsley uses go over the High Line Bridge?”
“Yes.”
“It runs east and west, right?”
“Yes.”
“Do you know who owns the railroad track that goes under the bridge and runs north and south?”
“I’m not sure. It could be Canadian Pacific.”
David knew Kincaid was correct. There were a few things he hadn’t forgotten about that morning in Valley City when he was pistol-whipped. One clear memory was the bright-red diesel engines of the Canadian Pacific Railway. “Wasn’t it a Canadian Pacific train that blew up a few miles south of the bridge?”
“I believe so.”
“Do you know if that train was hauling Bakken crude?”
“That’s my understanding. That’s what they
said blew up.”
“Why do you think the terrorists didn’t take out the High Line Bridge? I mean, if their goal was to disrupt our energy supply, they could have taken out two railroad routes by lighting up the Canadian Pacific train while it was under the BNSF track that goes over the bridge.”
“Objection,” Pottenger barked. “Relevancy. Calls for speculation on the part of the witness. Counselor, I think I’ve had enough of this line of questioning.”
David knew Pottenger was right, but he didn’t care. Moore had heard David’s question, and that’s all that mattered.
“Okay, let’s change topics, then,” David said. “Let’s talk about the explosion in Moorhead.”
“Objection,” Pottenger said. “Relevancy.”
“It’s relevant insofar as we need to know the route the oil traveled before it injured Ben Prior.”
“Go ahead and ask your question,” Pottenger said.
“Mr. Kincaid, there are two main BNSF tracks that run through Moorhead. One was taken out of service by the explosion, and one wasn’t. Was the one used by Helmsley Oil damaged by the explosion?”
“No, it wasn’t damaged.”
“Now, let’s talk about the explosion in Albany. Where did that take place?”
“At our facility in the Port of Albany.”
“Didn’t it take place on a railroad siding, off the main track?”
“It took place on the track, yes.”
“But the explosion did not take place on the main track, did it?”
“Objection,” Pottenger blurted. “Define main track in your question.”
“I’ll approach it a different way. Mr. Kincaid, do you know what a railroad siding is?”
“If you know . . .” Pottenger said.
“Mr. Pottenger,” David said, “I hope you’re not coaching your client.” David figured that Kincaid knew the answer, given all his experience on the rails. Again, Kincaid could not feign ignorance without looking like a liar.
“I’ll remind you, sir, that he is my client, and I’ll act in his best interests.”
“You may answer,” David said to Kincaid.
Kincaid looked at the ceiling. “It’s a short stretch of track used for storage or to enable trains on the same line to pass around one another on the main track.”
“Did the explosion at your facility take place on such a piece of track?”
