The 89c1114 settlement contract created a streamlined discovery program that was intended to bring the parties back to the bargaining table in short order.  If McDermott Will & Emery and its clients had kept the promises they made in April 1990, when they executed that contract, the 89c1113 case could have been settled within four or five months.  Instead, the 89c1113 case had become mired in costly, time-consuming discovery disputes: Between April 1990 and April 1991, Grove Fresh brought 37 discovery motions in that case to obtain information and the true facts.[1] 

For me, the suppression of the Bio Trade Documents was the proverbial straw that broke the camel’s back.  These documents were relevant to the cross-examination of 15 witnesses whom I had already deposed, and who lived beyond the 100-mile reach of a Grove Fresh trial subpoena.  The only way the jury would ever hear what these 15 witnesses had to say about the information in the Bio Trade Documents was if I went back and re-deposed them.  Re-deposing those 15 witnesses would come at an extraordinary expense in terms of my time and out-of-pocket costs for travel and court reporters.

To say that Grove Fresh had lost the benefit of the bargain struck by the 89c1114 settlement contract would have been an understatement, so I sought FRCP 60(b)(3) relief in that case on the ground that the settlement contract had been fraudulently induced.  I also filed motions for evidentiary sanctions in 89c1113. 

Judge Zagel had no sympathy for Grove Fresh’s problems.  He disparaged the motions as attempts to beat the defendants “over the head in public with what [Messina] believe[d] to be [their] wrongdoing.” 

A. The 12 acts and omissions that frustrated the discovery bargain at the core of the 89c1114 settlement contract.

In the 12 months following the execution of the 89c1114 settlement contract, the defense violated the rules of civil procedure in 12 material respects, listed below.  Items 1-8 relate to discovery promised in ¶¶9-10 of the 89c1114 settlement; items 9-12 relate to discovery Grove Fresh initiated to compensate for the breaches of those contractual promises:

  • The defense failed to produce the Bio Trade Documents on April 9, 1990.  See §XV-J, above.
  • The defense designated an incompetent witness (Hugo Powell) to testify in response to a Rule 30(b)(6) notice.  See §X-C, above.
  • The defense failed to produce 66 of 104 monthly reports of relevant sales data.  See §XI-M, above.
  • The defense omitted from its answer to interrogatory no. 10 three prior complaints that Everfresh had received about adulteration.  See §XI-N, above. 
  • The defense omitted from its answer to interrogatory No. 6 the names of 12 officers, directors, and employees who had knowledge of Everfresh’s illegal manufacturing practices.  See §XI-Q, above.
  • Kowal obstructed Grove Fresh’s right to interrogate Marshall regarding his knowledge of Everfresh’s illegal practices.  See §XIV-A, above.  
  • In answering interrogatory no. 7, which asked for a list of all the illegal ingredients in Everfresh’s orange juice, the defense omitted to disclose Oleum 320/IDEA.  See §XIV-I, above.
  • In answering interrogatory no. 8, which asked for the names of the vendors who supplied Everfresh with illegal ingredients used in orange juice, the defense omitted to disclose Kohlbach and Bio Trade.  See §XIV-I, above.
  • Bruno Moser gave materially false testimony at a deposition in Warren, Michigan, on November 28, 1990.  See §XIV-J, above.
  • The defense instructed an expert witness not to answer at least ten questions concerning the meaning of the term “adulteration.”  See §XV-A, above.
  • The defense failed to prepare a second witness to testify in accordance with FRCP 30(b)(6).  See § XV-B, above.
  • Between August and December 1990, Grove Fresh deposed 13 witnesses who were present or former employees or agents of Everfresh. At one point or another, defense counsel instructed 12 of these 13 witnesses not to answer questions on grounds other than privilege.  See § XV-C, above.

B. The harm to Grove Fresh’s trial preparation.

The 89c1114 settlement contract included an implicit promise by McDermott Will & Emery to refrain from a strategy of litigation by attrition.  See §IX-A-6, above.  The conduct of the McDermott lawyers in the year following the execution of the settlement contract breached that promise. 

The 15-month long suppression of the Bio Trade Documents was especially harmful to Grove Fresh’s discovery and to its ability to cross-examine witnesses at trial. 

1. The impaired cross-examination of 17 deposition witnesses. 

The Bio Trade Documents were relevant to the cross-examination of 17 of the 18 witnesses whom Grove Fresh deposed between April 1990, when the documents should have been disclosed, and April 1991, when the documents were actually disclosed.[2]  The absence of those documents impaired the cross-examination of those 17 witnesses in three important respects. 

First, the suppression of the documents foreclosed cross-examination that would have developed a full factual record regarding Everfresh’s use of Oleum 320/IDEA.  For example: 

Bruno Moser, a quality control manager at the Warren plant, played a central role in the illegal scheme to import Oleum 320/IDEA under false pretenses.  Nevertheless, when he was deposed in November 1990, he falsely denied knowing anything about Oleum 320/IDEA and falsely denied that Everfresh had ever added preservatives to its orange juice.[3] 

The Bio Trade Documents included invoices for Oleum 320/IDEA addressed to Moser.  If they had been timely produced, Grove Fresh would have used them to impeach Moser’s false denials and then to elicit details about Everfresh’s use of the preservative. 

Second, the suppression of the documents foreclosed cross-examination that would have developed a full factual record regarding Everfresh’s relationship to Bio Trade and its principal, Fred Kohlbach.  For example: 

James Marshall, a Flavor Fresh principal and a Bio Trade customer, knew that Everfresh had also been a long-time Bio Trade customer.[4]  Marshall’s information was relevant to the 89c1113 case.  Nevertheless, when he was deposed in September 1990, attorney Kowal instructed him not to answer any questions about Kohlbach on the ground that Grove Fresh had not demonstrated Kohlbach’s relevance to the claims against Everfresh.

If the Bio Trade Documents had been timely produced, they would have mooted Kowal’s objection.  Marshall would have had to either answer the questions about Kohlbach or invoke his fifth amendment privilege. 

Third, the suppression of the documents foreclosed cross-examination regarding Labatt’s deceptive presentation at the amnesty meetings with the FDA.  For example: 

When Hugo Powell, Everfresh’s president, made the amnesty presentation to the FDA in May 1989, he told the FDA about three undeclared but harmless additives in Everfresh’s juice, but he omitted to disclose a fourth—Oleum 320/IDEA—that by statutory definition was unsafe.

Powell was deposed in April 1990.  If the Bio Trade Documents had been timely produced, he would have been asked to explain why he hadn’t told the FDA about Everfresh’s history of adding Oleum 320/IDEA to orange juice. 

Mervin Shumate, deposed in December 1990, was the Labatt consultant and former FDA agent who arranged and attended the amnesty meetings with the FDA.[5]  If the Bio Trade Documents had been timely produced, Shumate would have been asked whether he knew about Everfresh’s history of adding an unsafe additive to orange juice.  If he admitted knowing that history, he would have been asked to explain why he hadn’t disclosed it to the FDA. 
If he denied that Labatt had ever told him about that history, he would have been cross-examined on whether the intentional use of that unsafe additive was relevant and material to an FDA decision on amnesty. 

2. The impaired cross-examination of 15 potential trial witnesses. 

At trial, if Grove Fresh could confront Moser with the Bio Trade Documents, his perjury would be exposed.  However, Moser lived more than 100 miles from the federal courthouse in Chicago, so he was beyond the reach of a Grove Fresh trial subpoena.[6] 

If Grove Fresh wanted the jury to hear from Moser, it could only offer his deposition transcript into the trial record; Grove Fresh would be stuck with the false denials in that transcript.

Powell and Shumate also lived beyond the reach of a Grove Fresh trial subpoena.  The jury would never hear them explain why they didn’t tell the FDA about Everfresh’s Oleum 320/IDEA problem. 

All told, 15 of the 17 witnesses who were deposed before the Bio Trade Documents were finally produced lived beyond the reach of a trial subpoena.  Unless Grove Fresh obtained some relief from the court, the jury would never hear what they had to say regarding Everfresh’s use of Oleum 320/IDEA. 

C. The 89c1114 motions. 

1. The Rule 60(b)(3) motion. 

The order dismissing the 89c1114 case was a “judgment” within the meaning of FRCP 54(a).  Under FRCP60(b)(3), Grove Fresh could move to vacate that order on the ground that the underlying settlement contract had been fraudulently induced.[7]  The deadline for such a motion was April 13, 1991—one year from the entry of the dismissal order. 

Grove Fresh filed a Rule 60(b)(3) motion on April 9, 1991.[8]  The motion stated in pertinent part:

[Grove Fresh] move[s] the court pursuant to Fed. R. Civ. P. 60(b)(3) for an order setting aside the order of dismissal… on the ground that the plaintiff was fraudulently induced to agree to the entry of that order. In the alternative, Grove Fresh prays for an order enforcing the terms of the settlement agreement and for an award of attorney's fees and costs in the amount of $250,000 or such other amount as would justly compensate Grove Fresh for the repeated and deliberate breaches of the agreement underlying the order of dismissal. 

In support of this motion, Grove Fresh will file a statement of uncontested facts with supporting exhibits and deposition transcripts, and a memorandum of law….  A brief summary of some of the grounds for this motion are set out below.

* * * *

12.       The Settlement Agreement has been an utter failure from the point of view of the discovery for which Grove Fresh specifically bargained. Over the last 12 months, Grove Fresh has had to file more than 30 discovery motions in the [89c1113] case [against Everfresh]. Even though most of these motions have been granted, they have not cured the substantial problems by the defense's discovery abuses.  The abuses include false interrogatory answers, false deposition testimony, unjustified instructions to witnesses not to answer deposition questions, and in one instance, blockading Grove Fresh's access to a key witness.

13.       Based on the experience of the last year, Grove Fresh alleges that the defense fraudulently induced the settlement agreement by representing that Everfresh would respond to discovery truthfully and completely, when, in fact, Everfresh had decided, and intended, to withhold material information and documents that were responsive to Grove Fresh's discovery requests but which were damaging to Everfresh's defense.

14.       Grove Fresh is preparing a statement of uncontested facts with supporting exhibits and transcripts that will prove the allegations in paragraphs 12-13. By way of illustration, Grove Fresh will describe below one of the more significant instances of abuse.

Paragraphs 15-22 of the motion went on to describe McDermott Will & Emery’s systematic suppression of information regarding Oleum 320/IDEA. 

2. The summary judgment motion.

Grove Fresh’s Rule 60(b)(3) motion was a claim for relief within the meaning of FRCP 56(a), which provides that “[a] party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim.”

On April 30-May 2, I filed summary judgment papers in support of the Rule 60(b)(3) claim.  Those papers are described below in §E.

D. The 89c1113 motions for evidentiary sanctions.

On April 16, 1991, Grove Fresh filed two motions for sanctions in 89c1113:

  • Motion for an Evidentiary Sanction Regarding Everfresh’s Use of Diethyl Pyrocarbonate.
  • Motion for an Evidentiary Sanction Concerning Everfresh’s Scapegoat Defense.

Both motions sought relief under FRCP 37(b)(2), which delineates the sanctions available when a party fails to obey an “order to provide or permit discovery.”[9]  Grove Fresh had obtained two such orders—the April 1990 order requiring Everfresh to answer Grove Fresh’s interrogatories,[10] and the November 1990 order compelling Everfresh to make a designation under FRCP 30(b)(6).[11] 

The potential sanctions under FRPC 37(b)(2) included: 

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters into evidence.

1. The motion regarding diethyl pyrocarbonate [“DEPC”].

Grove Fresh’s motion regarding DEPC, which rested on subparagraph (A) of FRCP 37(b)(2), asked the court to deem the following facts as established for the purposes of the trial in 89c1113:

Diethyl pyrocarbonate (“DEPC”) is a cold-fill sterilizer that extends the shelf life of certain beverages, including orange juice. When added to aqueous solutions such as orange juice, DEPC breaks down into its constituent elements and cannot be detected as DEPC. In 1972, the [FDA] effected a regulation prohibiting the use of DEPC as a food additive. The FDA banned DEPC because scientific studies showed that DEPC is a carcinogenic agent. The FDA ban has been in continuous effect ever since.

During the years 1982 through 1988, inclusive, defendant [Everfresh] added DEPC to all chilled orange juice processed at its plants in Detroit and Warren, Michigan, including orange juice packed for other juice companies. Everfresh used DEPC knowingly and willfully, and in disregard for the health and safety of the consumers who drank its orange juice.

Grove Fresh’s brief in support of this motion offered this introduction to the problem:

In February 1989, [Labatt], the parent of [Everfresh], conducted an audit of the manufacturing practices at Everfresh….  During this audit, [Labatt obtained] a handful of documents concerning Everfresh's dealings with Bio Trade, Ltd., a chemical maker domiciled in the Principality of Liechtenstein. These documents, which we will refer to hereafter as the “Bio Trade Documents,” concerned the import and purchase of a liquid that was known at Everfresh as “Oleum 320/IDEA.” This liquid was a preservative that was added to orange juice processed at Everfresh's Warren plant.

* * * *

The information in the Bio Trade Documents, and the Documents themselves, were responsive to discovery requests that Grove Fresh served on December 1, 1989. The failure to produce these documents for more than 15 months is part of a pattern of discovery abuse by the defense. An evidentiary sanction is now appropriate because if the relevant discovery requests had been answered honestly and completely, the facts which Grove Fresh now seeks to have established would have been admitted.

An evidentiary sanction alone is not enough, however. An evidentiary sanction merely gives Grove Fresh what it should have had in hand one year ago. A monetary sanction of $25,000 should also be awarded as compensation for the fees and costs that Grove Fresh has incurred over the last six months in order to uncover the facts that the defense has deliberately concealed.

2. The motion regarding the scapegoat defense.

Grove Fresh’s motion regarding the scapegoat defense, which rested on subparagraphs (A) and (B) of FRCP 37(b)(2), asked the court for an order “(1) precluding [Everfresh] and [Powell] from offering evidence at trial in support of the ‘scapegoat’ theory of defense, and (2) deeming as established for purposes of plaintiff's case-in-chief at trial certain designated facts.”  The brief in support of this motion offered this background:

[The Everfresh defendants] have asserted a scapegoat defense. They allege that the misbranded juice that prompted Grove Fresh's suit was the work of a single executive (Daniel Kotwicki) and three technical employees who have since resigned or been fired. They also allege that Kotwicki fabricated a completely false set of books and records to conceal the adulteration from [Labatt], Everfresh's parent corporation. Because of Kotwicki's fabrications, they argue, Labatt did not and could not discover the unlawful manufacturing practices until January 1989. They also claim that Kotwicki's alleged deceptions have prevented the defense from providing much of the information that Grove Fresh has sought to discover.

This scapegoat defense was first created in early 1989. It was not created for this unfair competition suit, but rather for a state court action brought by a fired employee under the Michigan Whistleblower's Protection Act. The fired employee, Duane Bosch, alleged that the Everfresh plant in Warren was adulterating orange juice with a milky-white substance imported from Europe. The substance was referred to in Everfresh’s inventory records as "Oleum 320/IDEA." In fact, the substance was actually diethyl pyrocarbonate (“DEPC”), a carcinogenic agent that was banned in the United States 19 years ago.

Bosch was employed at Everfresh less than four months, but his whistleblower claim posed a far more serious threat to Everfresh than would the unfair competition claims that Grove Fresh filed two weeks later. As an eye-witness who could describe what Oleum 320/IDEA looked like, how it came into the plant, who handled it, and how it was added to the juice, Bosch was in a position not only to collect damages for his wrongful discharge, but also to support felony and misdemeanor charges under the food laws against a long list of Everfresh and Labatt officers and directors and employees.

Making Kotwicki the scapegoat for Bosch’s charges was a solution worthy of Machiavelli. Kotwicki was not the executive responsible for introducing DEPC at Everfresh. Nevertheless, he had broken U.S. food and drug laws in other respects, and he had done so deliberately. Thus, he was (and still is) subject to felony prosecution for the manner in which he had conducted Everfresh's business. If false charges are made against him, he is in no position to speak in his own defense without incriminating himself in other ways.

The hole in the scapegoat defense is that the use of DEPC at the Warren site dates back to at least 1982, whereas Kotwicki had nothing to do with the operations at Warren until Labatt acquired them from the Allen brothers in December 1986.  In fact, Kotwicki was opposed to Labatt’s purchase of the Warren operations; among other things, he thought the price Labatt was offering was too high. The Allens, for their part, had a deep animus towards Kotwicki that went back many years, and they insisted that he be excluded from the negotiations and from the “due diligence” review prior to closing. Labatt caved in to the Allens’ demands, even though the about-to-be-acquired business would come under Kotwicki's domain after closing. And for nine months after closing, the Allens continued to run Warren as though there had been no change, and in disregard for Kotwicki’s place over them in the hierarchy.

But the most important fact of all is this: When Labatt offered to pay $10,000,000 for the Warren operations, there was a pending lawsuit which alleged that the company adulterated orange juice. This lawsuit was disclosed to Labatt two months before closing. In the face of those adulteration charges, the Allens refused to give Labatt the usual representations and warranties about the company’s compliance with applicable food laws. Labatt, including its board of directors, bowed to this refusal, even though Labatt, in a similar transaction just eleven months earlier, had insisted on just such representations and warranties from the seller.

In short, the circumstances surrounding Labatt’s acquisition of the Warren operations were such that, of all the Labatt and Everfresh executives who are accountable for the use of DEPC, Kotwicki is among the least culpable.

The Allens’ role in this is now obvious to Grove Fresh, but not because the defense has spelled it out.  To the contrary, the discovery provided by the defense has been permeated with lies and deliberate omissions. Beginning with a false affidavit from Powell dated April 10, 1990, the defense has concealed the Allens’ role at every turn. They have impeded discovery with false and deliberately incomplete interrogatory answers, and they have repeatedly and deliberately withheld documents. They have blocked effective cross-examination with false deposition testimony and with repeated instructions to witnesses not to answer questions that were clearly not privileged or work-product. They have also obstructed Grove Fresh's access to key witnesses, and they have deliberately and repeatedly violated their duty to produce knowledgeable witnesses under Rule 30(b)(6). [citation omitted]

The misconduct here has been willful and deliberate, and it has enormously complicated Grove Fresh's pretrial preparations. The misconduct warrants the severest sanctions available. As the first step in righting the defense's wrongs, this court should deem as established the facts set forth in Grove Fresh's Statement of Uncontested Facts That Should Be Deemed Admitted Pursuant To Rule 11 And Rule 37(a)(2)(A).

3. The supporting papers.

In support of the motions for evidentiary sanctions in 89c1113 I prepared a 320-paragraph Statement of Uncontested Facts That Should Be Deemed Admitted Pursuant to Rule 11 and Rule 37(a)(2)(A) (“89c1113 Statement of Uncontested Facts”) and four Appendices containing a total of 131 exhibits, as follows:

  • Appendix I contained 28 exhibits, consisting of pleadings, motions and discovery requests filed in 89c1113 and in related cases.  With one inadvertent exception,[12] none of these items was under seal or subject to any protective order.  (Appendix I did include the controversial Powell affidavit, however.  See §XIV-D, above.)
  • Appendix II contained 23 exhibits, including affidavits and excerpts from depositions in 89c1113.  None of these items was under seal or subject to any protective order.
  • Appendix III contained 47 exhibits, including records from the FDA and other government agencies; excerpts from learned treatises, encyclopedias, and reference books; and miscellaneous business records and documents from various sources.  None of these items was under seal or subject to any protective order.
  • Appendix IV contained 33 exhibits that would otherwise have been included in Appendix III but which had been designated as confidential by the 89c1113 defendants.

On April 16 and 22, 1991, I filed the 89c1113 Statement of Uncontested Facts and Appendices I, II, and III, but not Appendix IV.  I refrained from filing that Appendix pending a resolution of a long-running dispute over the terms of the 89c1113 Confidentiality Order.  See discussion in §F, below. 

E. The commonality of the Statements of Uncontested Facts and Appendices supporting the motions in 89c1113 and 89c1114.

I prepared the following summary judgment papers in support of the Rule 60(b)(3) claim:

  • Motion for Summary Judgment
  • Grove Fresh’s Brief in Support of its Motion for Summary Judgment Regarding the Order of Dismissal of Entered on April 13, 1990.
  • Statement of Uncontested Facts Pursuant to Local Rule 12(m) (“89c1114 Statement of Uncontested Facts”).
  • Appendices I, II, III, IV, and V to the Statement of Uncontested Facts.

There were 329 paragraphs in the 89c1114 Statement of Uncontested Facts; paragraphs 1-320 were identical to  paragraphs 1-320 in the 89c1113 Statement of Uncontested Facts.  Appendices I-IV to the 89c1114 Statement of Uncontested Facts were identical to Appendices 1-IV to the 89c1113 Statement of Uncontested Facts 89c1113. 

On April 30-May 2, I filed the 89c1114 summary judgment motion and brief; the 89c1114 Statement of Uncontested Facts; and all of the 89c1114 Appendices except for Appendix IV.  I refrained from filing that Appendix pending a resolution of the long-running dispute over the terms of the 89c1113 Confidentiality Order.  See discussion in §F, below. 

F. The attempt at an orderly resolution of the dispute over the 89c1113 Confidentiality Order.

Negotiations over the 89c1114 settlement contract included negotiations over the treatment of allegedly confidential information that might be produced during 89c1113 discovery.  I had told Stetler that I would not agree to an order of confidentiality that would require Grove Fresh to file a paper under seal merely because the paper referred to, or attached, a document that had been designated as confidential during discovery.  Any genuinely confidential information filed with the court could be sealed on an ad hoc basis, I had told him.[13]

Stetler acceded to my demand.  The order of confidentiality that his firm would later propose, and that Judge Zagel entered, did not include a provision authorizing the filing of papers under seal.[14]  Thus, the order was not a “protective order” within the meaning of LR 10(a).  If any papers were to be filed under seal in 89c1113, the court would have to authorize such filings on an ad hoc basis.

In the five months between the date of the 89c1114 settlement contract and the date that the 90c5009 case was filed (August 28, 1990), Grove Fresh filed several papers that either attached a document designated as confidential or referred to information from documents designated as confidential.  During that five-month period the defendants did not allege that any of these filings violated the 89c1113 Confidentiality Order. 

After the 90c5009 case was filed, several controversies arose in 89c1113 over how to treat papers that referred to allegedly confidential information.  I anticipated that filing Appendix IV would trigger a similar controversy, so I refrained from filing it with the clerk of court, though I served a copy on defense counsel along with the 89c1113 motions and Appendices I through III.  I included a cover letter dated April 21, 1991, that laid out a procedure for an orderly resolution of any controversy over the proper treatment of Appendix IV:

We have filed all of the above materials with the Clerk of Court with the exception of Appendix IV. That Appendix contains items that the defense has designated as confidential pursuant to the umbrella protective order entered in June 1990. That order does not provide for filing allegedly confidential documents under seal. We do not intend to file Appendix IV under seal.  Nevertheless, we will defer filing Appendix IV with the Clerk of Court for ten days so that you have an opportunity to seek whatever relief you deem appropriate. (emphasis added)

If we do not receive such a motion by the end of the day on Monday, May 6, 1991, we will file the Appendix the following morning.

I went on to explain the reasons why I would oppose any request to seal Appendix IV:

If you do seek to place any of the items in Appendix IV under seal, we will vigorously oppose your motion for two reasons.  First, none of the items in that Appendix contain any trade secrets or confidential research, development or commercial information within the meaning of Fed. R. Civ. P. 26(c)(7). Second, the defense has abused the confidentiality order by designating as confidential all but 200 or so of the 30,000 pages of documents that have been produced to date. It is simply incredible for Everfresh to assert that all 30,000 pages are genuinely confidential. Given this all or nothing approach, and given the failure to ever explain how any of the 30,000 pages genuinely require confidential treatment, we believe that none of the documents in the Appendix should be placed under seal. 

G. The defendants’ objections.

On May 1, the 89c1113 defendants filed Everfresh Inc.’s Motion (A) To Enforce This Court’s Previous Orders; (B) To Strike and Seal Grove Fresh’s Latest Pleadings; and (C) For Sanctions.  This motion raised four objections to Grove Fresh’s papers:

  • Grove Fresh’s Statement of Uncontested Facts “contain[ed] most of the allegations that this Court ordered to be filed under seal in the 90 C 50009 case….”
  • The Statement of Uncontested Facts “disclose[d] information from documents that have been designated confidential pursuant to the protective order in the 90 C 1113 case.” 
  • Previous oral directions by the court required Grove Fresh to obtain leave of court before disclosing allegedly confidential information.  The procedure Grove Fresh was proposing for testing the claims of confidentiality for the documents in Appendix IV violated those directions. 
  • The briefs Grove Fresh filed with Judge Bua in the 9c1114 case also made disclosures in violation of the 89c1113 Confidentiality Order and the 90c5009 seal. 

H. Getting blind-sided by the 89c1113 defendants. 

The 89c1113 defendants scheduled their motion for presentment on Friday, May 3rd—the same day that Grove Fresh’s motions for sanctions were scheduled to be presented.  Their certificate of service claimed that the papers were served by hand-delivery on May 1, two days before the hearings, as required by local rules. 

In fact, the defense’s motion papers were placed in the U.S. mail.  The envelope’s postmark was dated May 3, 1991—the same day the papers were presented in court. 

I received the motion papers three days after they were presented in court. 

I. Judge Zagel’s criticisms. 

I walked into court on May 3rd thinking that the defendants had not yet filed any papers.  I was not prepared for their arguments or for Zagel’s acerbic comments.  First, he mocked the effort and the motive behind Grove Fresh’s motions:

It sounded to me not only [are you ready] for trial, but you may have even had perhaps a lot of time, spare time on your hands, because this looked to me like the pleading of some lawyer who thinks that, geez, I really have a tremendous case here and I'm ready to go and I'm going to prompt the judge by telling him what a great case I have in the form of some kind of motion. 

* * * *

And…when I took a look at these motions…I thought, Mr. Messina, that it was at least my initial impression a waste of your time, and if I have to deal with it now I think it will be a waste of my time, and as a result I'm inclined perhaps to not rule on these motions now, but the more important question is whether I ought to allow them to be filed at all.[15]

Then, he criticized the motions as a publicity-seeking effort intended to force a settlement:

The difficulty I have with this case and the difficulty I had in the beginning is that the arguments you are making to me with the one exception you made a long time ago — you made one argument that you wanted the FDA to know about their putting orange pulp wash or whatever it was they put in the orange products. Essentially all the rest of this seems to me to be less a concern with Grove Fresh and prosecuting Grove Fresh's case than beating your opponents over the head in public with what you believe to be wrongdoing that they have accomplished.

Now, I'm not ignorant of the fact that in a large number of cases lawyers file lawsuits and they feel that adverse publicity to their opponent may force a settlement.

I don't know if that's an appropriate legal tactic or not, but it's not a consideration that I can take into account in making rulings about whether things ought to be made public or not. 

I have not, for example, in any instance in this case been told until you filed one of these evidentiary sanction motions about anything that would be significant in terms of public health or safety, what you have told me about are things that you — for reasons which I can understand, but I don't think that I'm supposed to aid you, in beating your opponents over the head.[16]

Finally, echoing the innuendo from the hearing on the Batch Sheets (§XI-R-3, above), he suggested that the motions were intended to advance interests other than my client’s:

The — and these motions really disturb me. I mean the motion — the evidentiary sanction regarding the scapegoat defense, this is a motion which whole grounded the scapegoat defense doesn't fit the facts. Why is this a pretrial motion?

This pattern of motions and this request and the way you have filed them have led me to some concern that your actions have not been motivated entirely and completely by the interest of your client advocated within the constraints of the law.

Now, all that might be wrong. it might be an impression that's incorrect. But it's something that now concerns me in a way that it did not concern me before. Some of these motions look less like motions than shots over your opponents' which lawyers take a great deal of delight in, but don't in my view particularly advance the progress of the case….[17]

J. Judge Zagel’s rulings. 

Judge Zagel issued minute orders as follows:

  • He entered and continued Grove Fresh’s Motion for an Evidentiary Sanction Concerning Everfresh’s Scapegoat Defense.
  • He entered and continued Grove Fresh’s Motion for an Evidentiary Sanction Regarding Everfresh’s Use of Diethyl Pyrocarbonate.
  • He denied defendants’ motion to strike Grove Fresh’s motions for sanctions, but granted their motion to seal those papers.
  • He entered and continued defendants’ motion to enforce previous orders and for sanctions. 

He also issued an oral order to withdraw the papers I had filed in 89c1114 in support of Grove Fresh’s FRCP 60(b)(3) motion.  He did not confirm this direction in a minute order; in fact, he had no authority to issue such an order.

K. May 21-September 3, 1991: The amended Rule 60(b)(3) papers in 89c1114.

On May 21, 1991, I filed a set of amended papers in support of the FRCP 60(b)(3) motion in 89c1114.  The defendants argued that the motion was untimely.  In the alternative, they argued, Grove Fresh should be required to tender back the $70,000 in settlement proceeds as a condition precedent to prosecuting the motion. 

While the motion was pending, Judge Bua retired from the bench.  The motion was referred to Judge Zagel for adjudication.  On September 3, 1991, he ruled that the motion was timely.  He did not resolve the issue of tender, leaving that to a further hearing. 

[1] As of the date the Uncontested Facts were filed, 15 of these 36 motions had been granted, five had been granted in part, and 13 were still pending.  See Uncontested Facts, Appendix III, Ex. 98 (Summary Chart of Grove Fresh Discovery Motions).

[2] For a list of these witnesses, see footnote 221, above. 

[3] See §XIV-J, above.

[4] Marshall Affidavit¶11 (Appendix C).

[5] See §XV-A, above.

[6] FRCP 45(b)(2)(B) limits the service of trial subpoenas to a 100-mile radius from the courthouse where the trial will take place.

[7] FRCP 60(b)(3) provides: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:….(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.”

[8] The motion was styled as Motion to Vacate the Order of Dismissal of April 13, 1990, or in the Alternative for Enforcement of the Settlement Agreement and Attorney’s Fees.  I filed a brief in support of this motion on May 1, 1990. 

[9] FRCP 37(b)(2) provides in pertinent part: “If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6)…to testify on behalf of a party fails to obey an order to provide or permit discovery…the court in which the action is pending may make such orders in regard to the failure as are just….”

[10] See §§XI-C, D, above.

[11] See §XV-B, above.

[12] The inadvertent exception was Exhibit 7, which was a copy of the settlement agreement in Purity Products’ 1988 lawsuit against Holiday Juice.  That agreement included the covenant restricting Hines’s right to practice law that the 89c1113 defendants sought to enforce against Hines.  The substance of that covenant had previously been disclosed in several public filings in 89c1113 without any objection.

[13] See §XIII-A-14, above.

[14] See §XV-K, above.

[15] 5/3/91 Tr. of Proceedings, p. 6.

[16] Id., p. 7.

[17] Id., pp. 10-11.