A. The Chicago Tribune story.

The Contempt Order was issued on a Friday morning.  Late that afternoon I received a call from Matt O’Connor, a Chicago Tribune reporter.  O’Connor asked me to comment on the Contempt Order.  I declined, citing the prior restraint on my speech.

The following Monday, the Chicago Tribune published the following report by O’Connor on the front page of the Metro Section:

Leaks Could Cost Lawyer $50,000

A federal judge has held a veteran Chicago lawyer in criminal contempt for repeatedly violating his orders and, in an unusual move, instructed him to post a $50,000 bond to try to prevent further violations.

In a hard-hitting, 60-page ruling, U.S. District Judge James B. Zagel warned attorney John Messina that he would lose the $50,000 if he again discloses confidential information from certain civil litigation in the next five years

Zagel also fined Messina $5,000 and, in perhaps the costliest measure of all, ordered him to pay the fees and costs of attorneys who had sought the contempt action.

"I've never seen a lawyer work so hard at earning the sanctions that have been imposed on him," said David Stetler, one the opposing attorneys. "To say it's deserved is an understatement." 

Zagel turned to Shakespearean figures to describe Messina's travail.  "Othello's downfall was the result of his own jealousy, MacBeth fell victim to his blinding ambition, Lear's insecurity prompted his misfortunes, and Hamlet's tragedy was that of a man who could not make up his mind," Zagel wrote. "John Messina fits the mold of the great tragic figure. His is the tragedy of an attorney who could not keep a confidence."

Messina represented Grove Fresh Distributors Inc., the plaintiff in two separate but related federal lawsuits filed against competing manufacturers for allegedly conspiring to adulterate orange juice.

During the first suit, filed in 1989 against Everfresh Juice Co., Zagel said he grew concerned at Messina's repeated disclosures of confidential information he learned of in the course of the litigation.

Messina appeared intent on trying his case "on the courthouse steps rather than in the courtroom itself," Zagel wrote. 

As a result, when Messina filed the second lawsuit in 1990 against Everfresh's parent company, John Labatt Ltd., Zagel ordered the complaint sealed and any subsequent filings made under seal.

But in last week's decision, Zagel said Messina continued to flout his orders, disclosing confidential information from the lawsuits three separate times: in a letter, in a legal brief and in a conversation with a reporter.

Among the alleged disclosures, Messina divulged the confidential settlement amount Labatt paid in the second suit. The first suit was dismissed.

He also disclosed to a reporter that certain individuals in the litigation had invoked their 5th Amendment privilege, prompting a front-page story in The New York Times in 1993.

The legal brief was a filing Messina made to the 7th Circuit U.S. Court of Appeals. In it, he suggested he was still Grove Fresh's lawyer, even though he had been dismissed months earlier. The appeals court threw out the motion as frivolous.

Messina, a 1975 graduate of Boston College Law School who once worked at the prestigious Chicago law firm of Jenner & Block but now practices alone, couldn't be reached for comment.

B. The ARDC inquiry.

The Chicago Tribune story came to the attention of the RADC. In mid-June the ARDC served notice that it was opening an inquiry into the Contempt Order.

In mid-November 1995 the ARDC, at the request of my counsel on appeal (Jenner & Block, see, §D, below), closed the inquiry pending the outcome of my appeal.

C. Further problems with the record.

In July 1995 I attempted to file trial exhibits for inclusion in the record for my appeal from the Contempt Order, in accordance with FRAP 10.  The deputy clerk rejected the tender, saying that Judge Zagel had instructed the appeals desk not to accept anything from me without the court’s prior approval.[1] 

On August 11, 1995, the deputy clerk in charge of the record for my appeal told my attorney that the Clerk’s Office had no pre-May 1995 records other than those that were on the May 1995 Docket. (R.286¶¶2-5.) 

On August 18, 1995, I again asked Judge Zagel to add to the docket the records that had been omitted from the May 1995 Docket.  The motion alleged on information and belief that the omitted records were in the court’s chambers.  (R.286¶6.)  Judge Zagel did not dispute counsel’s information concerning the whereabouts of the omitted records (see 8/18/95 Tr.2-5). 

On September 8, 1995, Judge Zagel issued an order allowing the trial exhibits to be filed but denying the request that he send the omitted records to the Clerk. 

D. Jenner & Block’s investigation of the record.

In August 1995 Jenner & Block agreed to represent me on appeal from the Contempt Order and in the ARDC inquiry.  The lawyers who worked on my case included Avidan Stern. 

Between November 1995 and January 1996, Stern investigated the whereabouts of the records that had been omitted from the May 1995 Docket.  He interviewed deputy clerks who were responsible for maintaining the district court’s case files; they told Stern that they did not have any of the 132 records that had been omitted from the May 1995 Docket.[2] 

Stern interviewed Don Walker, Judge Zagel’s courtroom deputy, who admitted that he had “put together the file for docketing when numerous items from [90c5009] were unsealed by Judge Zagel in May 1995.”[3] 

In January 1996, Walker gave Stern access to a box of documents that Walker said “he had found in a box in part of Judge Zagel’s chambers.”  Stern “found a total of 116 different items [in the box], none of which was listed on the official docket.”[4] 

In April 1996 Jenner & Block filed a motion to complete the docket sheet and record on appeal.[5]  The motion did not memorialize any of the facts Stern had learned during his investigation; it merely listed the records to be added.  Defendants stipulated to most of the motion; Judge Zagel granted the motion to the extent of the stipulation.[6]  However, for undisclosed reasons, the records were not entered on the docket until May and June 1997.[7] 

It took more than $40,000 of attorney time for Jenner & Block to complete the docket sheet and record on appeal.

 

[1] JPM Affidavit ¶199.

[2] R.531, Attachment¶¶9-10, 13-15.

[3] Id.¶16.

[4] Id.¶20

[5] R.301.

[6] R.302.

[7] JPM Affidavit ¶209.