XI. Chronology of 89c1113 through August 14, 1990, when the deception regarding Holiday Juice finally came to light. 

  1. Hiring Coopers & Lybrand to prepare a lost profits study.
  2. April 12: My objections to the Powell affidavit.
  3. April 18: The motion to compel answers to interrogatories.
  4. April 20: The hearing on Grove Fresh’s Motion to Compel.
    1. McDermott Will & Emery’s false representation to Judge Zagel and me that “nobody is [at Everfresh] any longer to answer these questions.”
    2. Judge Zagel’s reprimand.
    3. The order to identify witnesses with knowledge of the illegal practices.
    4. The first and last show of empathy for Grove Fresh.
  5. April 24: Problems with the supplemental response to Grove Fresh’s interrogatories.
    1. The sandbagging objection that Grove Fresh’s discovery was limited by a three-year statute of limitations.
    2. The false answers.
  6. April 26: Powell’s deposition.
  7. April 16-27: Correspondence over the 89c1113 Confidentiality Order.
    1. April 16: The omission, by agreement, of the magic language required for the clerk to accept sealed papers.
    2. The operative language in McDermott Will & Emery’s proposed form of order.
    3. April 19: Grove Fresh’s redraft.
    4. April 26: McDermott Will & Emery’s redraft.
    5. April 27: Grove Fresh’s final position.
  8. May 1: The Retainer Agreement signed by Grove Fresh, Rivkin Radler & Kremer, and me.
  9. Judge Zagel's subtle pivot toward the defense.
    1. The non-ruling on the discovery motion.
    2. The impact of the non-ruling.
    3. Changing the subject.
    4. Why changing the subject was a "little piece of theater."
    5. The silence of the record.
  10. May 15: The limited document inspection.
  11. May 22: Entry of a disputed Confidentiality Order governing discovery in 89c1113—but without any sealing authority.
    1. Grove Fresh’s objections.
    2. Weitzman’s explanation.
    3. Judge Zagel’s ruling.
  12. May 22-June 22: The drawn-out document production.
  13. The gaps in the sales data produced by the defendants.
  14. The false interrogatory answers, Part I: The omission to disclose prior complaints of adulteration.
  15. The unexplained claims of confidentiality for 19,022 pages of documents.
  16. The Batch Sheets: Documentary evidence that Labatt made false statements to the FDA at the 1989 amnesty meetings.
  17. The false interrogatory answers, Part II: The false answers regarding witnesses with knowledge of the illegal practices.
  18. The July 18 order sustaining the defense’s claim of confidentiality for 19,022 documents, including 601 Batch Sheets.
    1. Grove Fresh’s economic reasons for challenging the claim of confidentiality for the Batch Sheets.
    2. Defendants’ objections—and the limits to their grandstanding offer to cooperate with FDA scientists.
    3. Judge Zagel’s ruling, which relieved the defendants of their burden of proof.
    4. Judge Zagel’s ill-informed speculation about my litigation strategy.
    5. The intrusion into work product.
  19. The discovery plan and order dated August 8, 1990.
  20. August 9: My request for information regarding Everfresh’s corporate structure.
  21. August 14: The defense finally discloses that there are two different entities named Everfresh Inc.

When the 89c1114 settlement negotiations ended, the defendants had three jobs—answer interrogatories, produce documents, and prepare a knowledgeable Rule 30(b)(6) witness for cross-examination.  If the defendants had done their jobs, the table would have been set for negotiating a settlement of the 89c1113 case. 

We never got back to the negotiating table, however.  This Section describes the events that made a meaningful negotiation impossible. 

A. Hiring Coopers & Lybrand to prepare a lost profits study. 

During the 89c1114 negotiations, Grove Fresh agreed to hire an expert witness to prepare an analysis of lost profits.  Grove Fresh kept its promise in April 1990, when it hired Coopers & Lybrand to prepare such an analysis.

B. April 12: My objections to the Powell affidavit. 

I received Powell’s affidavit on April 11.  In a letter the next day, I explained to Weitzman why the affidavit was not an acceptable substitute for interrogatory answers: 

When we negotiated a settlement of [89c1114], Grove Fresh bargained for answers to interrogatories by a date certain, and for answers that would include all of the information that a corporation is required to provide under the Rules.[1] The Powell affidavit that you sent over yesterday does not even come close. It adds almost nothing to the evasive and incomplete answers that were served in February. Moreover, it is so lacking in detail as to be practically useless.

That same day I sent Stetler a letter registering my disillusion with his claim to candor and adding these complaints:

[W]hen you agreed to answer the Everfresh interrogatories by April 9, I assumed that you would serve timely answers, and that the answers you furnished would be responsive to the questions posed.

Today, two weeks after that bargained-for due date,….you have furnished Grove Fresh with an “affidavit” that comes from a know-nothing officer; the “affidavit” isn't even signed or sworn to.

The fact that the Powell “affidavit” isn't signed or sworn to is the least of its faults. This “affidavit” is filled with unattributed hearsay; it ignores the time period (January 1983 to the present) defined by the interrogatories; and it dodges the thrust of virtually every interrogatory in the set that we served five long months ago. In short, as a proposed substitute for the corporate defendant's answers to interrogatories, the Powell "affidavit" is a mockery of your corporate client's obligations under the Federal Rules of Civil Procedure.

Four days later, Weitzman responded for himself and for Stetler with a letter declaring that Everfresh, in lieu of answering interrogatories, would exercise its option under Rule 33(c) to produce business records instead. 

Weitzman’s letter did not specify the documents from which the answers could be ascertained, as required by Rule 33(c).

C. April 18: The motion to compel answers to interrogatories. 

On April 18, Grove Fresh filed a motion for an order to compel answers to the interrogatories.  The attachments to the motion included: (a) Everfresh’s February 1990 objections and answers to the interrogatories; (b) the March 21st letter summarizing the agreements made at the 12k conference; and (c) Powell’s affidavit.  (Three or so months later a Chicago Sun-Times reporter would obtain a copy of the Powell affidavit from the court file; he would quote key portions of the affidavit in stories published on September 27 and 30, 1990.  See §XIV-B, below.)

The motion recited the tortured history leading up to the 89c1114 settlement contract, including the objections set forth in Everfresh’s February 22 response to the interrogatories.  After quoting Everfresh’s written promise “to serve Grove Fresh with amended answers to the Interrogatories by Monday, April 9, 1990,” Grove Fresh made these complaints: 

  1. Everfresh has willfully breached its agreement. Instead of answering the interrogatories, it has served Grove Fresh with an unexecuted, two and one-half page affidavit from a corporate officer, Hugo Powell, who has absolutely no personal knowledge of the facts underlying this case. (A copy of this affidavit is attached hereto as Exhibit C.)
  2. Powell did not begin working at Everfresh until January 1989, just a few weeks before Grove Fresh filed its complaint.  His affidavit concedes that under his predecessor, Daniel Kotwicki, Everfresh had manufactured and distributed adulterated orange juice over a period of several years. These are facts that were already known by Grove Fresh; indeed, they are the very basis of the complaint.
  3. What Grove Fresh does not yet know, and what it has been seeking to discover for the last five months, are the names of corporate officers and employees other than Kotwicki who participated in the adulteration or otherwise had knowledge of it.  Other than Kotwicki, Powell's affidavit does not identify a single officer, director or employee who participated in or had knowledge of the adulteration scheme.
  4. Every substantive statement in Powell's affidavit begins with the phrase, “I have been told,” or “I was told,” or “I learned.” However, Powell does not identify any of the persons who supplied him with his information.
  5. The Powell affidavit is so filled with anonymous hearsay, and so lacking in basic detail as to be practically useless.  This affidavit would be bad enough if it were the initial response to the interrogatories. But as the response submitted in purported compliance with a Rule 12k conference, it is outrageously dilatory and evasive.

D. April 20: The hearing on Grove Fresh’s Motion to Compel.

1. McDermott Will & Emery’s false representation to Judge Zagel and me that “nobody is [at Everfresh] any longer to answer these questions.”

At the April 20th hearing on Grove Fresh’s motion, I argued that Powell’s affidavit was not an adequate substitute for interrogatory answers because “the interrogatories are directed to the corporation, and what I’m looking for are answers that speak for the corporation, not just an individual.” [2] 

Lazar Raynal, a McDermott Will & Emery lawyer, offered this response:

MR. RAYNAL:           ….I think the thrust of this [motion] is Mr. Messina’s unhappy with the fact that Mr. Powell, who is the current CEO, no longer – does not have any personal knowledge about these actions in question.

And, as a matter of fact, the tight group of people that did have knowledge about it are no longer with the company.  [Powell] can only say I was told or this is what I heard because that’s all he knows.  I think neither side will dispute that Mr. Powell came in after the activity in question. 

Now, since nobody is there any longer to answer these questions, we have informed Mr. Messina [of that] by that hand delivered letter on April 16th,…. [3] (emphasis added)

I didn’t realize it at the time, but Raynal’s claim that “nobody is there any longer to answer these questions” was flat-out false.  As he knew, [4] there was at least one current employee who could answer Grove Fresh’s questions—Bruno Moser, who had been working at Everfresh since 1955, would continue working until 1992 or 1993, and who had been intimately involved in Everfresh’s criminal practices. 

2. Judge Zagel’s reprimand.

Raynal went on to argue that his firm’s April 16th offer to produce unspecified documents in lieu of narrative answers to the interrogatories was a sufficient response.  Judge Zagel rejected this argument.  He told Raynal to provide an interrogatory-by-interrogatory specification of documents, as required by Rule 33(c), and issued this scolding and admonishment:

THE COURT:            Let me tell you what my difficulty is.  The first difficulty I have is that I stayed discovery, which I was asked to do on the understanding that the remainder of discovery if the motion to dismiss was lost would be conducted at the convenience of the plaintiff, which apparently Mr. Weitzman has forgotten.

Secondly, some of the answers to the interrogatories really raise questions of good faith.  It may very well be that identifying every person who is or was an officer, director, or shareholder of Everfresh is beyond the scope of discovery.  But I don’t believe it is confusing and ambiguous, yet this is the written objection that was filed.

The objection was withdrawn, but it raises a concern in my mind as to the true willingness to comply with the obligations on the discovery.  It seems to me to be a tongue in cheek objection to an interrogatory, which is appropriate for a skit about the American legal procedure, but not something that you’d actually do in a courtroom. 

Considering the past history of this matter, if you have doubts in your mind as to weighing whether something ought to be more specific or more general, I would resolve it in terms of being more specific and identifying those documents that respond to individual interrogatories rather than more general. [5] (emphasis added)

3. The order to identify witnesses with knowledge of the illegal practices. 

Near the end of the hearing I asked for specific relief regarding Interrogatory No. 6, which asked the defense to “identify every past or present officer, director and employee of Everfresh who has any knowledge of [Everfresh’s] adulteration [practices]” from 1983 forward:

MR. MESSINA: Judge, there is one particular interrogatory that I am most interested in, which is the one that asks Everfresh to identify all the employees who knew about the adulteration and who took part in it.  That it seems to me is something which gives names and addresses and dates of employment.

THE COURT: Yes, you can give that to them by Tuesday, too.

MR. RAYNAL:  Is that interrogatory one?

MR. MESSINA: No, that’s not interrogatory one.

THE COURT: And you can come back again if you have another difficulty. [6]

4. The first and last show of empathy for Grove Fresh.

On May 3rd I accepted Judge Zagel’s invite to return to court to resolve “another difficulty” with discovery, but by then, he had pivoted away from his view that discovery “would be conducted at the convenience of the plaintiff.”  See §I, below.  The reasons why he pivoted cannot be explained by any facts in the 89c1113 record. 

The April 20th hearing was the first and last time that Judge Zagel showed any empathy or concern for Grove Fresh’s discovery issues. 

E. April 24: Problems with the supplemental response to Grove Fresh’s interrogatories. 

Everfresh served a supplemental response to Grove Fresh’s interrogatories on April 24—15 days after the agreed-upon date.  The response included a new, sandbagging objection and a host of false answers.

1. The sandbagging objection that Grove Fresh’s discovery was limited by a three-year statute of limitations.

Grove Fresh’s interrogatories sought information for a seven-year period—from January 1, 1983, to the date of the answers (April 1990). 

As of March 20, 1990—the date of my discovery conference with Stetler—the 89c1113 defendants had raised only one objection to this time period—Hine’s restrictive covenant, which, if enforceable, cut off claims prior to August 1988.  The 89c113 defendants withdrew this objection after Judge Bua overruled it in 89c1114. 

During the March 20th discovery conference, Stetler didn’t raise any other objection to the seven-year time period defined by the interrogatories.  Nevertheless, the 89c1113 defendants’’ supplemental answers refused to provide any information for three of the seven years sought by Grove Fresh, on the ground that a three-year statute of limitations limited Grove Fresh’s discovery to the period after February 10, 1986. 

The statute of limitations is an affirmative defense; it must be set forth in a defendant’s answer to the complaint. [7]  The 89c1113 defendants’ answer to the complaint, filed in February 1990, did not plead the statute of limitations, so the limitations period was not one of the issues on the bargaining table at the March 20th conference.  Raising the statute a month later, after the 89c1114 contract had been executed and closed, was a sandbagging tactic.

2. The false answers. 

The supplemental answers would prove to be false in four material respects:

The omissions from the answers were not immediately evident; they became apparent gradually, over the next six months, as Grove Fresh gathered and analyzed evidence from other sources.  See discussions below in §§N, Q, XIV-I.

F. April 26: Powell’s deposition.

I deliberately scheduled Powell’s deposition for a date sufficiently after April 9—the date by which the defense had agreed to produce documents—so that I would have a generous amount of time to prepare a detailed cross-examination based on the documents.  McDermott Will & Emery broke its promise on documents, however—we didn’t receive any until June 22.  

Powell appeared for his deposition on April 26.  Because we had no documents for cross-examination, the deposition yielded little in the way of useful information. 

G. April 16-27: Correspondence over the 89c1113 Confidentiality Order. 

On the issue of a confidentiality order, McDermott Will & Emery had already agreed that the order would not require the sealing of any papers that attached or referred to documents designated as confidential; [8] it would only bar Grove Fresh from disclosing such documents to third parties. (See §1, below.)  The only real substantive dispute was whether documents relating to the scheme to make and sell misbranded juice could designated as confidential. 

As discussed below in §§2-5, by April 27, we had agreed to disagree on this issue.  Nevertheless, the defendants waited 25 more days before presenting the matter to Judge Zagel for resolution. 

In a classic boot-strap justification, the defense cited the absence of a confidentiality order as the reason for not producing documents during that 25-day wait. 

1. April 16: The omission, by agreement, of the magic language required for the clerk to accept sealed papers.

As of April 1990, Local Rule 10 regulated the procedures for filing papers under seal with the clerk of court. [9]  LR 10 provided that papers could be filed under seal only if the court had previously entered a “protective order,” which was defined as “an order which provides that certain documents or exhibits to be filed with the court at a future date may be filed as suppressed or sealed documents as determined by the order.” [10] (emphasis added)

To put the matter in practical terms, as of April 1990 the deputy clerks at the filing desk would accept a filing under seal, if, and only if, two conditions were met:

On April 16, Weitzman sent me a proposed form of order that he styled as a “Protective Order.”  In fact, the proposed form of order was not a protective order within the meaning of LR10 because, consistent with my earlier agreement with Stetler, [11] it didn’t include the magic language—it didn’t provide that “documents or exhibits to be filed with the court at a future date may be filed as suppressed or sealed documents.” 

2. The operative language in McDermott Will & Emery’s proposed form of order.

The operative language of McDermott Will & Emery’s proposed form of order was as follows:

  1. A party (hereafter referred to as a “Designating Party”) may designate documents or information it considers to be of a confidential, proprietary or trade secret nature….

  2. Documents or information designated as confidential shall be used only for the preparation and trial of this lawsuit, and for no other purpose except as may be required by law or court process…. 

3. April 19: Grove Fresh’s redraft.

On April 19, I sent Weitzman a redraft of his proposed form of order that inserted the following paragraph as ¶2:

The right to designate documents or information as confidential applies to legitimate business or competitive information, and does not extend to materials that refer or relate to tortious acts or schemes for manufacturing or selling adulterated orange juice.

I also included a provision clarifying the burden of proof in the event that the parties disagreed over a designation of confidentiality and couldn’t resolve the dispute themselves.  My draft provided that in the event of such a disagreement

it shall be the obligation of the Designating Party to move promptly (i.e., within 10 days of the parties’ failure to resolve the dispute among themselves) for a ruling from the court regarding the confidentiality of the items in dispute.  Nothing contained in this paragraph shall alter the burden of proof respecting the confidentiality of any materials. (emphasis added)

4. April 26: McDermott Will & Emery’s redraft.

On April 26, Weitzman sent me a redraft that would protect inculpatory documents until the end of the case:

The right to designate documents or information as confidential applies to legitimate business or competitive information.  It does not extend to materials that relating to tortious acts, but this limitation applies only to the extent that a final order of a court of competent jurisdiction has determined that tortious acts in fact occurred. (emphasis in original)

5. April 27: Grove Fresh’s final position.

The next day I sent Weitzman a marked-up version of his redraft which “represent[ed] my final position on a protective order.”  My mark-up revised paragraph 2 as follows: 

The right to designate documents or information as confidential applies to legitimate business or competitive information.  It does not extend to materials that refer or relate relating to tortious acts or schemes for manufacturing or selling adulterated orange juice., but this limitation applies only to the extent that a final order of a court of competent jurisdiction has determined that tortious acts in fact occurred. 

H. May 1: The Retainer Agreement signed by Grove Fresh, Rivkin Radler & Kremer, and me.

In the meanwhile, on May 1, Grove Fresh signed a Retainer Agreement with Rivkin Radler & Kremer and me. 

In consideration for our services Grove Fresh agreed to pay a contingent fee of 40% of any recovery, half of which would be payable to me and the other half to Rivkin Radler & Kremer. 

I. Judge Zagel's subtle pivot toward the defense. 

If Money to Burn’s Paul Devine speaks for Zagel on the art of judging—and we think he does—Zagel views his courtroom as a theater, where a gesture or a few spoken words can convey layers of meaning. A "little piece of theater” is how Devine would describe such a moment. [12]

Zagel delivered a little piece of theater on May 3, at a hearing on two Grove Fresh motions.

The last time we had been in court, on April 20, he had scolded the defendants for bad faith in discovery and expressed "a concern" about their "true willingness to comply with the[ir] obligations on the discovery." [13] He had invited me to “come back again” if I had “another difficulty,” [14] and so I returned on May 3rd, presenting two motions that challenged the defense’s sandbagging objection to the time period for discovery. (That objection is discussed above in §E-1.)

With Zagel's encouraging remarks from the April 20th hearing fresh in my mind, I went to court on May 3d expecting an empathetic judge. We didn't get one, however. His resolution of the motions, coupled with a little piece of theater, signaled an ever so subtle pivot toward the defense.

1. The non-ruling on the discovery motion.

I presented two motions at the May 3rd hearing:

Both motions cited the defense's failure to invoke the statute of limitations in its February 1990 answer to the complaint or at the March 1990 discovery conference. Grove Fresh argued that these prior failures to object to the time-period for Grove Fresh's claims entitled it to an immediate, favorable ruling on its motion regarding the scope of discovery.

Zagel disagreed. He wouldn't rule on Plaintiff’s Renewed Motion to Enforce Agreement Regarding Discovery; he merely entered and continued it generally. By not ruling on the motion, he implicitly sustained McDermott Will & Emery's time-period objection for the indefinite future.

Zagel set a briefing schedule on Plaintiff’s Motion for a Finding on the Statute of Limitations. Seven months later, he ruled that the defense had not waived the defense, but he affirmed Grove Fresh's right to invoke the continuous tort doctrine against competitors who made or sold adulterated orange juice. [15]

2. The impact of the non-ruling.

Zagel's unwillingness to rule on the discovery motion came as Grove Fresh was about to embark on an ambitious deposition schedule-more than a dozen witnesses over the next seven months, many of them out-of-town. During those depositions McDermott Will & Emery repeatedly instructed the witnesses it represented not to answer questions regarding events prior to February 10, 1986.

The December 1990 ruling on the continuous tort doctrine effectively overruled the objection to the time period for discovery, but by then, the objection had effectively been used to limit the testimony of more than a dozen witnesses.

3. Changing the subject.

During the May 3rd hearing Zagel shifted the discussion from my complaint about being sandbagged by McDermott Will & Emery to an unrelated but (for the defense) much sunnier topic-McDermott Will & Emery's move to new office space. [16]

The shift in topics changed both the tone and the dynamic in the courtroom. Discussing my complaint involved a testy, three-way exchange between Judge Zagel, the McDermott Will & Emery lawyer, and me. Discussing McDermott Will & Emery's new office space involved a congenial two-way exchange between Zagel and my adversary, while I stood silently at the lectern, excluded from the conversation.

In the space of one hearing, Zagel had gone from scolding the defense lawyers to celebrating the prosperity symbolized by their new offices; from expressing empathy for Grove Fresh’s discovery problems to refusing to rule on a motion to overrule a sandbagging objection to its discovery requests.

4. Why changing the subject was a "little piece of theater."

A federal courtroom is governed by strict rules of etiquette.  When a case is called the lawyers step to the podium, identify themselves for the record, and take turns speaking to the matter at hand in a formal and courteous way.  An experienced trial lawyer will look for ways to lubricate the discourse with friendly banter, but the banter will grate unless it flows naturally from the subject at hand.

When we stepped to the podium on May 3rd, the tone of the discourse was formal but tense as I connected the current discovery dispute to the ones that had elicited a scolding of defense counsel two weeks earlier. 

The McDermott lawyer in court that day bore no responsibility for any of the discovery problems, but he was also a young, green, associate with no special courtroom skills.  He was stuck with bad facts that did not lend themselves to friendly banter that might ease the tension.  His resistance to the discovery motion was uninspired.  He offered no compelling reason why Zagel should not apply the logic of the April 20th scolding and overrule the time-period objection to discovery.

Zagel moved the discourse away from the April 20th scolding, and put the defense lawyer at ease, by introducing the unrelated topic of McDermott Will & Emery’s move to new offices.  The banter that followed signaled a rapport between the judge and the defense lawyers.  This banter was a little piece of theater because it did not flow naturally from the subject at hand.  Rather, it was imposed on the hearing through the intervention of the judge.  The intervention changed the tone and dynamic of the hearing, which started out favoring Grove Fresh, to a tone and dynamic that favored the defense. 

5. The silence of the record.

The change in Zagel's demeanor towards my adversary cannot be explained by anything in the official record from April 20 to May 3. I had no communications with Zagel between.  There were no new papers in the record other than those I filed before appearing at the May 3rd hearing.

J. May 15: The limited document inspection. 

Documents were first made available for a limited inspection during two-hour window on May 15, 1990, at Everfresh’s headquarters in Franklin Park.  My paralegal was only allowed to inspect the labels on the file folders containing the documents and “to make an inventory of the kinds of documents that were available.” [17]  He was not allowed to “scrutinize or take notes on specific documents.” [18] 

Defendants withheld from the May 15th production a group of allegedly confidential documents consisting of correspondence and orange juice formulas.  We were told that these documents had been removed to McDermott Will & Emery’s office in the Loop, and that the documents would not be available for inspection until after an order of confidentiality had been entered.

K. May 22: Entry of a disputed Confidentiality Order governing discovery in 89c1113—but without any sealing authority. 

On May 16, 1990, Everfresh filed a motion for entry of its version of a “protective order.”  Everfresh’s motion summarized the disagreement over ¶2 of the draft order concerning the treatment of materials relating to tortious acts. 

1. Grove Fresh’s objections.

Grove Fresh filed these objections to the motion:

Grove Fresh has never believed that the facts of this case warrant the entry of any type of order of confidentiality.  Nevertheless, there was a time when Grove Fresh, as part of the give-and-take that is essential to smooth discovery, was willing to stipulate to the entry of some form of an order of confidentiality.  That time has passed.

The defendants and their attorneys have broken many of the agreements that were reached at the 12k conference of March 20, 1990.  Moreover, they have shamelessly used their own failure to obtain a protective order before now as a justification for refusing discovery, even though some of the discovery in question was returnable more than a year ago. 

2. Weitzman’s explanation.

At the May 22nd hearing, Judge Zagel asked Weitzman to explain why the defense’s version of ¶2 should be included in the order.  Weitzman’s response emphasized that the only restriction in the order was a ban on disclosing confidential documents to third parties.  He said nothing about sealing or suppressing future court filings that attached or referred to allegedly confidential documents:

The limitation elsewhere in the protective order is simply that the documents will be used for the purposes of this litigation.  They won’t be used to contact -- to make sales to our customers or to go to the newspapers or to go to other competitors, and if -- if this Court makes the ruling at the end of the case as to what has occurred and what has not occurred, that will determine whether counsel is free to use it for some other purpose.

It is not -- this is not a restriction -- as you will see, the protective order is not a long one.  It simply says it will be used for the purpose of this case.  We have not been talking about an onerous description. [19] (emphasis added)

3. Judge Zagel’s ruling.

Judge Zagel granted the defense’s motion for entry of a so-called protective order, but only after striking paragraph 2 from the proposed form of order.  (We will refer to the order as entered by Judge Zagel as the “89c1113 Confidentiality Order.”)

With paragraph 2 stricken, the defense was free to claim confidentiality for documents relating to tortuous acts.  Grove Fresh, however, retained the right to challenge any such claim, and the burden of proof on the issue remained with the defense. 

Judge Zagel said nothing about the order authorizing or requiring the sealing of any future filings in the case. 

L. May 22-June 22: The drawn-out document production. 

Entry of the 89c1113 Confidentiality Order should have cleared the way for Grove Fresh to inspect and copy the allegedly confidential documents withheld from the May 15th document production.  It didn’t.  Inspection was delayed for 16 days; copies were withheld for 16 more days after that.  This is what happened:

On May 22, my paralegal, Will Goldbeck, contacted a McDermott lawyer to arrange for an inspection of the allegedly confidential documents that had previously been shipped to McDermott’s Loop office. 

The McDermott lawyer refused Mr. Goldbeck’s request, telling him that the documents were going to be shipped back to Franklin Park, and that Mr. Goldbeck would have to go back out to Franklin Park to inspect them. The earliest that Mr. Goldbeck was permitted to return to Franklin Park was on June 6, 1990.

A day or two before the June 6th inspection, I offered to arrange and pay for an independent messenger service to pick up the documents from the Franklin Park facility and deliver them to a copy service in the Loop. McDermott Will & Emery rejected this offer and stated that Everfresh wanted to control the delivery and return of its documents.

Mr. Goldbeck went to Franklin Park on June 6.  At the conclusion of his inspection, he advised McDermott Will & Emery that Grove Fresh wished to have copies of all of the documents that had been produced, which amounted to less than five banker's boxes. 

Grove Fresh received the documents 16 days later, on June 22. 

M. The gaps in the sales data produced by the defendants.

Interrogatory No. 12, served in December 1989, asked Everfresh for sales information relevant to the Lanham Act claim for a disgorgement of profits.  Interrogatory No. 12 asked for: (a) the names of every wholesaler or retailer to whom Everfresh sold orange juice from concentrate; (b) the quantity of product sold to the customer, stated annually; and (c) the prices at which the products were sold. 

In April 1990, McDermott Will & Emery notified us that, in lieu of an answer, Everfresh would produce documents from which the answer could be derived. 

The documents we received in June 1990 included computer-generated sales reports, organized by customer (“Computer Sales reports”) that purported to cover a 52-month period (February 1986 through May 1990) for plants in Franklin Park and Warren.  If the defense had produced complete sets of reports for that time period, we would have received a total of 104 monthly reports, but we received only 38—three for Warren, and 35 for Franklin Park. 

Everfresh did not produce any information regarding the plant in Windsor, Ontario. 

Grove Fresh contended that it was entitled to data starting in February 1983, and that it was entitled to such data for all three plants.  If Grove Fresh prevailed on these contentions, it would receive, in the aggregate, 261 monthly reports. 

N. The false interrogatory answers, Part I: The omission to disclose prior complaints of adulteration.

In June 1990 I deposed James Boden, a former officer at Boden Products and Everfresh.  He disclosed that as of December 1986, when Labatt acquired it, Everfresh was a defendant in a lawsuit alleging that it made and sold adulterated orange juice. [20]  This lawsuit was omitted from Everfresh’s April 24th answer to interrogatory no. 10, which asked Everfresh to identify prior complaints about adulterated orange juice. 

We eventually learned that there were three other complaints responsive to interrogatory no. 10, but which Everfresh omitted from its answer: 

O. The unexplained claims of confidentiality for 19,022 pages of documents. 

On June 22, Everfresh produced 19,123 pages of documents.  Pursuant to the 89c1113 Confidentiality Order, Everfresh designated 19,022 of these pages—all but 101 pages—as confidential.  The documents designated as confidential were as follows:

The 101 documents that Everfresh did not designate as confidential were employment records of Daniel Kotwicki, the former executive on whom Labatt pinned all the blame for Everfresh’s misdeeds. [24] 

P. The Batch Sheets: Documentary evidence that Labatt made false statements to the FDA at the 1989 amnesty meetings. 

The Batch Sheets recorded the recipes Everfresh used in 1987 to make 601 batches of a product that was labeled and sold to the public as “100% pure orange juice from concentrate.” [25]  In all, the Batch Sheets recorded the recipes used at the Warren plant to make 3,190,000 gallons of that product.

All 3,190,000 gallons were adulterated and misbranded. 

When a batch of orange juice from concentrate is made in accordance with the standard of identity, [26] the corresponding batch sheet would list only three ingredients:  frozen concentrated orange juice, water, and orange oil.  The 601 Batch Sheets that Everfresh claimed were confidential listed many more than these three standard ingredients.  Among the illegal ingredients were:

All of the Batch Sheets were dated; the dates on several hundred showed that the Warren plant made more than 1,000,000 gallons of adulterated orange juice before July 1987.

July 1987 was a key date—that is when Kotwicki became president of the Michigan entity that operated the Warren plant.  Prior to that date Michael Allen was president and chief operating officer of the corporation that operated the Warren plant.

Batch Sheets dated prior to July 1987 were evidence that the Warren plant had been making adulterated orange juice before Kotwicki was put in charge—and evidence, therefore, that Labatt had lied when it told the FDA that Kotwicki was the executive who caused the Michigan entity named Everfresh to make adulterated orange juice products. 

Q. The false interrogatory answers, Part II: The false answers regarding witnesses with knowledge of the illegal practices.

The Batch Sheets were the first evidence that Everfresh had falsely answered Interrogatory No. 6, which required it to “identify every past or present officer, director and employee of Everfresh who has any knowledge of [Everfresh’s] adulteration [practices from 1983 forward]....”  Everfresh identified “Hugo Powell to the extent stated in his Affidavit,” plus three former employees whose knowledge of the firm’s illegal practices was a matter of public record. [27]

The answer omitted to identify Michael Allen, who had presided over the manufacture of at least 1,000,000 gallons of adulterated orange juice between December 1986 and July 1987. 

We would eventually discover that Allen was not the only person with knowledge of Everfresh’s illegal practices who was omitted from the answer to interrogatory No. 6; there were at least 11 others:

R. The July 18 order sustaining the defense’s claim of confidentiality for 19,022 documents, including 601 Batch Sheets. 

In July 1990 I challenged Everfresh’s claim of confidentiality for the Batch Sheets.  Five years later, when Zagel published the contempt order, he characterized my challenge as showing that “[Mr. Messina] would go to any lengths to try his case on the courthouse steps rather than in the courtroom itself,” and that I had a personal agenda “to hurt [the defendants] by disseminating information for the purposes of damaging them outside the walls of the courtroom.”[30] 

These are the facts:

1. Grove Fresh’s economic reasons for challenging the claim of confidentiality for the Batch Sheets.

Grove Fresh had an economic incentive to use the Batch Sheets to prove to the FDA that Everfresh’s amnesty was based on a lie.  If the FDA revoked the amnesty, and then prosecuted and convicted Everfresh on criminal charges, Grove Fresh could use the criminal conviction to establish liability in its civil case against Everfresh.[31]

In other words, a criminal conviction of Everfresh would save Grove Fresh substantial time and money in preparing its case for trial. 

Accordingly, on July 2, I notified Everfresh that I objected to the claim of confidentiality for the Batch Sheets.  For tactical reasons I did not disclose to the defense my conclusion that the sheets showed that Labatt had lied to the FDA during the 1989 amnesty meetings.  However, there were other reasons for alerting the FDA to the information in the Batch Sheets, and I outlined these reasons in my letter to defense counsel:

Under the terms of the Confidentiality Order, my objection placed on Everfresh the burden of proving that the Batch Sheets were entitled to confidential treatment.  

2. Defendants’ objections—and the limits to their grandstanding offer to cooperate with FDA scientists.

On July 11, Everfresh filed a timely motion for a ruling on its claims of confidentiality, but it did not articulate any grounds for claiming confidentiality, even though the 89c1113 Confidentiality Order placed the burden of proof on that issue on the party claiming confidentiality. 

The objection to sharing the Batch Sheets with the FDA was inconsistent with the grandstanding offer Labatt and Appler had made a year earlier, when they made a show of cooperating with FDA scientists.  See §III-B, above.  The recipes memorialized in the Batch Sheets would have been useful to scientists seeking to improve methods for detecting adulterated and misbranded juice products. 

3. Judge Zagel’s ruling, which relieved the defendants of their burden of proof.

The recipes memorialized in the Batch Sheets were not legitimate trade secrets; rather, they were evidence of intentional violations of the FD&C Act that could be prosecuted as felony crimes.  It is not intuitively obvious that such evidence deserves to be treated confidentially. 

Nevertheless, at the hearing on Everfresh’s motion, Judge Zagel never asked the defense to explain why the Batch Sheets were entitled to confidential treatment and should not be shared with the FDA.  Instead, he said he would review samples of the Batch Sheets in chambers and decide for himself whether they should be treated confidentially. 

Five days later, Zagel issued a minute order sustaining the defense’s claim of confidentiality: 

With respect to the batch sheets, the claim of confidentiality is well taken.  The expressed desire of plaintiff’s counsel to send these documents to the FDA does not outweigh the claim of confidentiality, at least at this stage of the litigation. 

The order did not purport to explain why the claim of confidentiality was “well taken.” 

4. Judge Zagel’s ill-informed speculation about my litigation strategy.

Before he went on the bench, Zagel had a distinguished 22-year career as a government lawyer—21 years in law enforcement and one as a state bureaucrat.[32]  However, he had zero experience in complex civil litigation. 

This lack of experience is the only explanation I can find for the following comment he made at the July 13th hearing, impugning my motive for challenging Everfresh’s claim of confidentiality for the Batch Sheets: 

I believe that what is at stake here has very little to do with the interest of Mr. Messina’s client.  It may serve some other interest.[33] 

Zagel did not specifically identify the “other interest” he suspected me of pursuing, but pursuing any interest other than my client’s would have been unprofessional. 

Zagel wouldn’t have made this comment if he was familiar with Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979).  That case held that if a government agency brings a civil or criminal case against a corporate wrongdoer, a finding of liability in the government’s suit will support a motion for partial summary judgment on the issue of liability in a private lawsuit. 

By 1990, the strategy of sending incriminating evidence (like the Batch Sheets) to a government agency (like the FDA) to instigate an investigation against corporate wrongdoers (like the 89c1113 defendants) was a staple of the plaintiffs bar. 

If Zagel had been familiar with Parklane Hosiery Co., he would have recognized that sending the Batch Sheets to the FDA was consistent with my duty to “take whatever lawful and ethical measures [were] required to vindicate a client's cause or endeavor.”[34] 

5. The intrusion into work product.

My litigation strategy was based on my “mental impressions, conclusions, opinions, [and] legal theories,”[35] which were confidential under the work product doctrine.  Judge Zagel had an affirmative duty under FRCP 26(b)(3)B) to “protect against disclosure” of my work product. 

Zagel breached this duty when he publicly speculated about my litigation strategy.  His speculation created an innuendo that impugned my professionalism.  The innuendo left me with lose/lose options.  If I wanted to dispel it, I’d have to explain my strategy to him, which would require me disclose the strategy to the 89c1113 defendants as well, and waive work product, which I didn’t think was appropriate at the time. 

If I wanted to preserve the confidentiality of my work product, I’d have to stand mute and let the innuendo stand without rebuttal.   

S. The discovery plan and order dated August 8, 1990.

On August 8, 1990, Zagel issued a Discovery Plan and Order that required all discovery to be completed by November 15, 1990.  Among the other significant dates were the following:

T. August 9: My request for information regarding Everfresh’s corporate structure.

By early August it had become clear that the 89c1113 defendants were excluding information about the operations in Windsor from their responses to discovery requests.  They continued to claim that the operations in Windsor were separate and distinct from those in Franklin Park and Warren, even though all three plants operated under the same name and had the same set of administrators. 

On August 9, I sent McDermott Will & Emery a letter posing the following questions in advance of a discovery conference regarding their contentions about Windsor’s purported separateness:

  1. As of the date the complaint was filed in February 1989, was “Everfresh Juice Co.” the name of a division of either John Labatt Ltd. (“Labatt”), or of a Labatt subsidiary?

  2. If the answer to #1 is yes, what were the names of the corporations in the division?

  3. As of today, is “Everfresh Juice Co.” the name of a division of either Labatt or a Labatt subsidiary?

  4. If the answer to #3 is yes, what are the names of the corporations in the division?

  5. In or about January 1989, did Holiday Juice Ltd. merge into Everfresh Inc., as is indicated on a memorandum from the Minister of Consumer and Commercial Relations dated February 6, 1989? (A copy of that memorandum is enclosed.)

  6. If the answer to #5 is yes, in what jurisdiction is the surviving corporation incorporated?
  7. What is the basis for the defense's position that the defendant in this case is “Everfresh Inc.,” rather than “Everfresh Juice Co.,” which is the entity named in the summons and complaint?

U. August 14: The defense finally discloses that there are two different entities named Everfresh Inc.

Lazar Raynal, a McDermott Will & Emery associate, answered my questions in a letter dated August 14, 1990:

  1. No.
  2. Not applicable.
  3. No.
  4. Not applicable.
  5. No. The transaction you are referencing involved two Canadian corporations. Holiday Juice Ltd. was an Ontario corporation which was owned by John Labatt Limited, a Canadian federal corporation. John Labatt Limited had become aware of an unrelated, small Ontario corporation that was using the name of “Everfresh Inc.” John Labatt Limited then acquired that Ontario corporation in approximately December, 1988. In January, 1989, Holiday Juice Ltd., the Ontario corporation, and that other Everfresh Inc., the Ontario corporation, amalgamated to form a new corporation called Everfresh Inc., a Canadian federal corporation. The stock of that Canadian Everfresh Inc. entity is owned by John Labatt Limited, and is separate from the U.S. Everfresh Inc.
  6. Not applicable. As stated above, the entity referenced in the answer to number 5 is incorporated in Canada.
  7. In its complaint, plaintiff is suing a corporation having “Everfresh” in its name, based on orange juice made at the entity's Franklin Park, Illinois facility.[36]  The correct name of that corporation is “Everfresh Inc.,” a company incorporated in Michigan, with its principal office in Franklin Park, Illinois. Both at the time the complaint was filed and currently, there was and is no entity named “Everfresh Juice Co.”  In the spring of 1989, Hugo Powell decided to use “Everfresh Juice Co.” as a brand name.[37] See page 266 of the Powell deposition. However, notwithstanding the continuing identification of this litigation through plaintiff's original caption (Grove Fresh Distributors, Inc. v. Everfresh Juice Company), the correct name of the entity being sued should be listed as Everfresh Inc., the Michigan corporation with its principal office in Franklin Park, Illinois. [emphasis added]

[1] FRCP 33 provides that when the party to whom interrogatories are addressed is a corporation, the party “shall furnish such information as is available to the party.” This Rule imputes to the corporation the knowledge of all officers and employees. General Dynamics Corp. v. Selb Manufacturing Corp., 481 F.2d 1204, 1210 (8th Cir. 1973). Thus, a corporation served with interrogatories is “duty bound to secure all information available to [it]. This would include information within the personal knowledge of former ... employees employed at the time [the lawsuit is] commenced. Additionally, it would include information possessed by its corporate counsel.” Id.

[2] Tr. of Proceedings, p. 4 (April 20, 1990).

[3] Id., pp. 4-5.  Raynal was parroting a claim that Weitzman had made in a written response to Grove Fresh’s motion: “[Grove Fresh’s] motion actually results from the following problem:  The former Everfresh employees who have the knowledge to possibly answer the detailed questions which plaintiff would now like to ask are simply not available to the defendants.”  Defendants’ Preliminary Response to Plaintiff’s Motion to Enforce Agreement Concerning Discovery, p. 2 (April 19, 1990). 

[4] See §§I-E, F, above.

[5] Id., pp. 7-8, 9.

[6] Id., p. 10 (emphasis added)

[7] FRCP 8(c).

[8] See §XIII-A-14, above.

[9] The version of LR 10 in effect as of April 1990 is set out in Appendix W.  Currently, LR 26.2 regulates the filing of papers under seal.

[10] LR 10(a) defined suppressed document and sealed document as follows:

A suppressed document was “a document or an exhibit filed in a proceeding in this Court to which access has been restricted either by a written order, including a protective order. ...”

A sealed document was “a suppressed document which the court has directed to be maintained within a sealed enclosure such that access to the document requires breaking the seal of the enclosure.”

[11] See §IX-A-14, above.

[12] A “little piece of theater” is how Judge Devine described a moment in the sentencing hearing in United States v. Massachusetts Slim.  That fictional case is discussed in Memorandum No. 7, §III-A.

[13] 4/20/90 Tr. of Proceedings, p. 8.

[14] Id., p. 10.

[15] See Memorandum 3-B, §II-F.

[16] According to a change-of-address notice effective May 1, 1990. the firm had just moved to the AT&T Corporate Center, where it was the anchor tenant in Chicago's newest skyscraper. 

[17] Affidavit of William Goldbeck ¶3 (May 18, 1990).

[18] Id., ¶5.

[19] 5/22/90 Tr. of Proceedings, pp. 2-3.

[20] The lawsuit was Purity Products Inc. v. Ever Fresh Juice Co., No. JFM 86-963 (D. Md.), the unfair competition case that Hines filed in March 1986. See Uncontested Facts¶¶60-66, 111.

[21] See Uncontested Facts¶¶119-120.

[23] See Uncontested Facts ¶123.

[24]  See Memorandum No. 3-A, pp. 34-35.

[25] A sample Batch Sheet is attached as Appendix V.

[26]  A standard of identity is the recipe that establishes the criteria that must be met before a food can be labeled in a certain way.  The standard of identity for orange juice from concentrate is codified at 21 C.F.R. §146.145.

[27] The three ex-employees were Kotwicki, Michael Petric, and Glen Davis.  Everfresh had publicly identified Kotwicki, Petric, and Davis as culprits a year earlier, when it fired Petric and Davis for cause and terminated Kotwicki’s post-employment consulting arrangement shortly before it met with the FDA to get amnesty. 

[28] See Uncontested Facts ¶287(c).

[29] See Uncontested Facts ¶287(b).

[30] 888 F. Supp. at 1430.

[31] See Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), which approved the doctrine of offensive collateral estoppel.  Under that doctrine, a litigant who was not a party to a prior judgment may nevertheless use that judgment “offensively” to prevent a defendant from relitigating issues resolved in the earlier proceeding. 

[32] After graduating from law school in 1965, Zagel became an Assistant State's Attorney in Cook County. From 1969 to 1977, he was an Assistant Attorney General in Illinois, except for six months in 1975, when he was Chief Assistant to then-Arizona Attorney General Bruce Babbitt. In 1977, Governor Thompson named Zagel Executive Director of the Illinois Law Enforcement Commission, and in 1979 he became Director of the Illinois Department of Revenue. In 1980, he became Director of the Department of Law Enforcement, which later became the Department of State Police.  He became a federal judge in April 1987.

[33] 7/13/90 Tr. of Proceeding, p. 12 (emphasis added).

[34] M.R.P.C. 1.3, comment 1.

[35] FRCP 26(b)(3)(B).

[36] Nothing in Grove Fresh’s complaint purported to limit its claims to “orange juice made at the entity's Franklin Park, Illinois facility.”  Raynal put this self-serving gloss on the complaint to justify the undisclosed limitation that McDermott Will & Emery had placed on the services it would render in 89c1113.  

[37] Contrary to Raynal’s implication, Powell did not originate the use of the fictional name, Everfresh Juice Co.  Powell arrived on the scene in January 1989; the fictional name was in use at least eight months earlier.