The Secret Mad Men Tapes: Judges Urged to Keep Ad Agency's Billing Documents Under Seal

Last Updated May 11, 2010 6:01 PM EDT

A lawyer for Grey Group told a New York state appellate court that documents allegedly describing billing improprieties in its London and New York offices include transcripts of meetings attended by someone "with a tape recorder in his pants pocket." The lawyer did not explain why someone at Grey would have taped their meetings, as the statement came in a debate in which a judge had asked him not to describe the contents of the documents, which are under a judicial seal. Nor did the lawyer identify who made the tapes.

In the case, Grey is arguing that the years-old documents should be kept secret. Grey has always maintained that the documents don't describe over-billing, and that the lawsuit in which they were filed was a frivolous attempt at revenge by an embittered employee who was fired by the agency. Therefore, Grey believes, the documents should never see the light of day.

Most managers assume that the business documents they create are private and will never be made public. But time again and they are proven wrong. Whether by leaks or litigation, documents have a tendency to live forever. Management would be well advised to only write emails, presentations and PowerPoints that they would be happy to see published on the front page of the New York Times. (Or BNET.)

Initially, Grey won rulings in a lower court dismissing the case and keeping the documents sealed. However, Yale Law School's Media Freedom and Access Practicum took an interest in the case and brought an appeal, arguing that the news media has a right to inspect documents filed as part of lawsuits. (Disclosure: I was the member of the press who originally requested access to the documents, and Yale represents me as the "intervenor" in this case.)

The "tape recorder" remark -- and the tantalizing notion that meetings at Grey may have been taped for some unknown reason -- adds another clue to the Zapruder-esque mystery of what happened at Grey's London office in 1999, when CFO Roy Wilson suddenly left and filed a whistleblower action against the agency. That case was settled and its details were never made public.

The Wilson controversy re-emerged after a former Grey evp/print chief, Mitch Mosallem, sued Grey and attempted to blackmail WPP (WPPGY) CEO Martin Sorrell, apparently with the documents in question, according to an earlier ruling in the case. (WPP acquired Grey -- whose clients include Procter & Gamble and Eli Lilly -- long after the events in question.)

Mosallem has a tangled history with Grey. He was fired by the agency and pled guilty in 2003 to charges of bid-rigging, kickbacks and charging clients excessive bills. Mosallem served 70 months in federal prison and was required to pay Grey back for his crimes.

While in prison, Mosallem sued Grey claiming the agency breached his attorney-client privilege to frame him. Mosallem's suit alleged that in addition to his own kickback scheme, the London office of Grey had "a global arrangement involving kickbacks, bid-rigging, discounts and client over-billing in the form of cash, free work and other benefits," and that it kept "corporate discounts and rebates it received" from printers "that were not passed on to its client[s]." To back his claim, Mosallem filed with the court a collection of documents that purported to be evidence of the scheme. Grey has always maintained that the documents are a collection of irrelevant, trivial or confidential material, and that Mosallem is simply using the court to harass his fomer employer.

The five-judge appeals panel will now make a ruling on whether those documents stay secret or not.


Image by Flickr user AndYaDon'tStop, CC.