VI. The transition to my responsibilities as Grove Fresh’s lead lawyer. 

A. The new and amended discovery requests. 

One issue was clear after my November 21st conversation with Hines—his conflicts of interest would require me to take first-chair responsibility for 89c1113, 89c1114, and 89c1117 even if he continued working for Grove Fresh in some capacity.  Otherwise, Grove Fresh’s recoveries in those cases would be limited to the six-month period prior to February 10, 1989.  A contingent fee limited to a six-month period for damages was not likely to be worth the effort, in my estimation. 

Over the next ten days I prepared and served new and amended discovery requests in all three cases seeking information for the period from “January 1, 1983, to the present.”[1] 

B. The heightened importance of the disgorgement strategy. 

Hines’s firing thrust me into a position I never would have sought on my own—sole responsibility for five complex, contingent-fee cases in an area of the law where I had no experience.  One of the cases—the 89c1114 case against the Flavor Fresh defendants—was scheduled for trial in less than four months. 

Grove Fresh had no funds for an expert witness on damages or for out-of-town discovery trips.  Without funds for these endeavors, I had no prospect of recruiting other lawyers to join forces with me. 

The only viable strategy was to continue pursuing the simplest and least costly remedy available to Grove Fresh—the Lanham Act remedy for a disgorgement of the defendants’ unlawful profits, which did not require the services of an expert witness, at least not at the discovery stage.[5]  For this reason, from the moment I first learned that I would have to take first chair responsibility for 89c1113, 89c1114, and 89c1117 (November 21), I pressed the defendants for sales data, both in settlement negotiations and in formal discovery.

[1] I served the following discovery requests in 89c1114 between November 27 and December 1, 1989:

  • Plaintiff’s First Amended Set of Interrogatories to Flavor Fresh Foods, Inc.;
  • Plaintiff’s First Request for Documents to Flavor Fresh Foods, Inc.;
  • Rule 30(b)(6) Notice to Flavor Fresh Foods, Inc. (“Flavor Fresh Dep. ¶__”);
  • Rule 30(b)(6) Subpoena to Everfresh Juice Co. ( “Everfresh Juice Subpoena ¶__”);
  • Rule 30(b)(6) Subpoena to Everfresh, Inc. (“EF Subpoena¶ __”)

[2] Rule 30(b)(6) of the Federal Rules of Civil Procedure authorizes a party to serve a corporation with a notice or subpoena for a deposition and to “describe with reasonable particularity the matters on which examination is requested.”  The corporation is then obliged to “designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.”

Rule 30(b)(6) notices are appropriate when the case involves actions in which many individuals were involved and it is unclear what role each of them played.  It is also appropriate when a corporation asserts as a defense that it has conducted an internal investigation and taken all of the necessary remedial steps, if any.  In these situations the requesting party is unable to identify witnesses who can testify about the activities in dispute or identify relevant documents. S. Schenkier, “Trial Practice: Federal Rule of Civil Procedure 30(B)(6),” GP SOLO, vol. 20, no. 6 (September 2003), at http://www.abanet.org/abanet/common/print/newprintview.cf...net.org/genpractice/magazine/2003/sep/civilprocedure.html

[3] The subjects listed in the notices included:

  • Whether Everfresh manufactured adulterated orange juice for Flavor Fresh. (Everfresh Juice Subpoena ¶1; Flavor Fresh Dep. ¶2; )
  • Whether Flavor Fresh supplied Everfresh or any of Everfresh’s affiliates with adulterated orange juice concentrate. (EF Subpoena ¶5.)
  • The formulas and procedures for adulterating orange juice products. (Everfresh Juice Subpoena ¶6; Flavor Fresh Dep. ¶2)
  • The names of all persons or entities who participated in the manufacture, distribution or sale of adulterated orange juice products in Illinois, Wisconsin, Michigan or Indiana.  (Everfresh Juice Subpoena ¶9; Flavor Fresh Dep. ¶5; EF Subpoena ¶8.)

[4] A copy of the FDA memorandum summarizing Marshall’s proffer is attached to Memorandum 3-A as Appendix D.  A copy has also been posted on the website at Marshall Proffer.

[5] The elements of the disgorgement theory are discussed on the website at Background-Legal Theories.  While Grove Fresh could collect disgorgement data without the help of a testifying expert witness, it would need such an expert in order to present that data to a jury effectively.