II. February 10-March 30, 1989:  The opening phase of the 89c1114 case.

A. McDermott Will & Emery’s unconditional appearance for Flavor Fresh. 

On March 20, 1989, three McDermott lawyers—Weitzman and Chiron, who had already appeared in 89c1113, plus David Stetler— filed appearances for the Flavor Fresh defendants in 89c1114.

McDermott Will & Emery’s appearances did not purport to limit the scope of the firm’s representation of Flavor Fresh in any respect.

B. The motion to dismiss the 89c1114 complaint: Deferring the initial candid, confidential interview with the client. 

On March 30, 1989, McDermott Will & Emery filed identical 12(b)(6) motions to dismiss both the 89c1113 complaint and the 89c1114 complaint. 

The Rule 12(b)(6) motion to dismiss the 89c1114 complaint could have been prepared without delving into the underlying facts.  Thus, the defense lawyers could have postponed the initial, candid interview of their 89c1114 clients regarding the merits of the case. 

Deferring that interview until after the court ruled on the motion to dismiss would have made tactical sense.  If the motion was denied, and McDermott Will & Emery withdrew from 89c1114 without ever having received any confidential communications from their 89c1114 clients, the firm would remain qualified to represent the Labatt Entities in any future proceedings that might be adverse to Flavor Fresh and its principals. 

C. The interrogatories that, if truthfully answered, would have disclosed that two different Everfresh entities had co-packed Flavor Fresh’s products. 

As noted, along with the complaint Hines served the 89c1114 defendants with a set of 27 interrogatories.  Truthful answers to interrogatory nos. 5 and 11[1] would have revealed that Flavor Fresh’s co-packers during the period of time covered by the interrogatories included both Holiday Juice and Boden Products. 

A truthful answer would also have revealed that Holiday Juice was a Canadian corporation that had recently been re-named Everfresh Inc., and that Boden Products had been merged into a Michigan corporation that likewise was named Everfresh Inc.

The Flavor Fresh defendants never answered these interrogatories, however.  On November 27-December 1, 1989, I served amended interrogatories and other discovery requests that likewise required the Flavor Fresh defendants to disclose information that would reveal the existence of the Canadian Everfresh Inc.[2]  The 89c1114 defendants never responded to those requests, either.

[1] Interrogatory no. 5 asked:  “State, in complete detail, your manufacturing and marketing system for ‘Flavor Fresh 100% Orange Juice from Concentrate’, including in your Answer, the place of manufacture….” (emphasis added)

Interrogatory no. 11 asked:  “Is any other person, firm, corporation or other business organization authorized or licensed to process or manufacture ‘Flavor Fresh 100% Orange Juice from Concentrate’ for you, under your label?  If so, state the name and address of each such person, firm or business , name and address of the chief operating officer of each such firm or business, and the basis or terms upon which said operation is or was conducted.” 

[2] Amended Interrogatory No. 2 asked: “2. Is any other person, firm, corporation or other business organization authorized or licensed to process or manufacture orange juice products for you, under your label? If so, (a) identify each such person, firm or business….”

Amended Interrogatory No. 3 asked: “Did you, or did any licensee identified in your answer to interrogatory no. 2, adulterate orange juice products at any time during the period from January 1, 1983 to the present? If the answer is ‘yes,’ state the period of time during which you or your licensee adulterated orange juice products.”

Amended Interrogatory No. 4 asked:. “If the answer to interrogatory no. 3 is ‘yes,’ (a) identify the plants or other facilities where the orange juice products were adulterated….”