Document 0Lg5Qjq439pxMw0v3zqO1KKx

I IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT : 2 ST. CLAIR COUNTY, ILLINOIS I ! 3 FRANCES E. KEMNER, ET AL., ) ) .4 Plaintiffs, .) 5 vs. ) ) Case No.80-L-970 6 MONSANTO COMPANY, ) ) ) 7 Defendant. ) 8 9 10 REPORT OF PROCEEDINGS i 11 August 21, 1985 12 13 Before the HONORABLE RICHARD P. GOLDENHERSH, Circuit Judge 14 15 APPEARANCES: 16 MR. REX CARR and MR. JEROME SEIGFREID, Attorneys at Law, on Behalf of the Plaintiffs; and 17 MR. K. HEINEMAN and MR. JOSEPH MASSIF, Attorneys at 18 Law, on Behalf of the Defendant Monsanto. 19 20 21 Kathleen Watson Brunsmann, RPR, CSR Official Court Reporter 22 23 24 EXHIBIT J f 1 to do. I 'm not going to rule now. All right. Okay. 2 MR^ CRAVEN: Now may I go to the protective order? 3 THE COURT: Sure. Sure. ,Okay. 4 MR. CRAVEN: As I read the transcript of August 6 5 hearing with reference to the protective order, I think It 6 can be fairly summarized to say this, that there was conver- 7 ation about the protective order, and thi9 was soon after you 8 turned over some of the documents you had exminaed in camera.. 9 THE COURT: I ordered that they be turned over. 10 MR. CRAVEN: You ordared that they be turned over. 11 Then there was an order for the protective order. There was 12 some discussion. You indicated on tho record that you were 13 going to deny the motion for the protectiva order. 14 THE COURT: I did. 15 ME, CRAVEN: Later in the transcript Mr. Carr -- 16 there was a lot of discussion, and then Hr. Carr indicated 17 that he would impose upon himself voluntarily a protective 18 order for a period of 30 days where upon you Indicated In 19 view of that there was no necessity for you to rule. 20 THE COURT: No, no, no, no, no That's not right. 21 I ruled that I was denying the protective order. If I said 22 anything about ruling, it was about further requests above 23 and beyond the particular protective order that had been 24 submitted to roe, bacauso I do finitely ruled anu did not vseat I my ruling that I was not going to sign that protective order. 2 If there was an indication from ms that ,1 wasn't ruling on 3 ocmcthir.g, it was on something el3e. 4 MR. CRAVEN: I may ba misreading the transcript. 5 3ut at page 150 or the transcript, and I think it relates 6 to the protective order, preceding it was the discussion of 7 the voluntary non-distribution. There's son business going 8 on about whether it would be applicable to Jerry, and Mr. 9 Carr told him he should have kept quiet, it was only going 10 to be Mr. Carr. I don't know whether you remember that * .-*,r .. :..>..*** II colloquy or not. Jerry was feeling left out and Rex was 12 mad at him for getting -- moving in. 13 HR. CARR: That will ba the day. 14 MR. CRAVEN: And then Hr. Massif said the protective 15 order, you wanted to extend it to both counsel, and the volun** 16 tary agreement, and the court says this, this is where -- 17 if there's any ambiguity, it's in this language. I think the 18 agreement gives you what you want. I am not inclined to Tule 19 on this issue. 20 THE COURT: Okay. I think there is some aiubiguity 21 there, and what I was referring to was they wanted in effect 22 an order for 30 days or soma period of time until they could 23 decide what to do about it. 24 HR.CARR: That was uy understanding. 1 THE COURT: I was denying the protective order 2 per se. Orally they asked for some emergency or temporary 3 type of protective order. It was basically agreed to. 4 MR. MASSIF: I asked the judge if he would issue 5 a temporary order until we could go forward end seek protectie 6 and the Judge-- 7 THE COURT: Tthat's what it was. 8 MR. MASSIF: That's when Rex piped up and said 9 "you don't have to do that, I'll give that to you." What 10 the Judge did not rule on was my request for a temporary 11 restriction, Jim. 12 MR. CARR: That's correct. 13 THE C0UP.T: Thank you. I remember that now. that 14 you onid it. Thank you. 15 MR. CRAVEN: There's no question that earlier on 16 in the transcript you deny the motion for protective order. 17 THE COURT: Yes, sir, I did. 18 MR. CRAVEN: But. just a person reading this, 19 I couldn't say that it had been al owed cr denied. 20 THE COURT: Sure. I can sec where that ambigiity 21 came about. 22 MR. CRAVEN: assuming new that it is a denial of 23 the protective order. We are now here again on a Motion 24 again to reconsider that. Also in reading this, end 1 guess A. I reading a record is, you don't get the body language, and 2 everything that goes on, but I think there's a misapprehensior 3 here, maybe, maybe not. What we wait, and what we think w e 're if 4 entitled to, we have litigation going in the federal courts 5 in other jurisdictions, and whether the material that the 6 Court has turned over to Mr. Carr is or is not discoverable 7 . ** in that litigation by counsel in that case, those cases, 8 should be a matter to be determined by the law of the forum, 9 and the Courts there. Clearly, we're entitlted to that. 10 If it's privleged in New York, it should be not usable against 11 us in New York, and Mr. Carr should not be able to give it 12 to counsol in New York, because that would effectively be 13 this Court making a decision for the New York Court, which 14 ***>A I ?m sure the Court doesn't want to do/ Now this Court has 15 decided that M r . Carr can have the material for this case, anc 16 we complied. But the only other -- the only thing to do was 17 to stand in contempt or comply. That's the Illinois system. 18 So w e 've turned it over. Now it shouldn't be a judgment as 19 to whether it goes to counsel in West Virginia and New York 20 in federal courts there, and Mr. Carr has with commendable 21 candsr indicated h e 's willing to use itand give it to those 22 people, but he lias given us a 30 day period. We're saying 23 he's not entitled to do that. We are saying that this Court 24 shouldn't make a decision for the federal courts of New York 1 end West Virginia. Judge, we had this kind of a question in 2 reverse in the Clark v. Monsanto thing where there were 3 protective orders running around and so forth. Each court 4 and each question of privilege* unfortunately the law is 5 different, and Illinois is really very peculiar -- 6 THE COURT: Let me interrupt for a minute. What 7 did you have in Clark? '*. * 8 MR. CRAVEN: Well, in Clark there was protective 9 orders in West Virginia and some turn over orders in Madison 10 County, who was supposed to do whet and where, and which 11 set of lawyers could get it. It was the same kind of Issue. 12 It never got to a resolution because there was so many other - 13 THE COURT: Ckcy. I wasn't exactly clear what you 14 were referring to. 15 MR. CRAVEN: It was running around there. In this 16 case Mr. Carr has this material. We will debate on appeal 17 the question cf whether it was or was not properly turned 18 over. It's a debatable issue. But w e 're entitled also 19 to debate in the federal court whether it is or is not 20 discoverable, and Mr. Carr is not entitled to moot that issue 21 by going up there and bartering this material.with o ther *-> counsel. We are asking this Court for aprotective order, \ 23 enjoining Mr. Carr from making that kind of use of it. Now 24 we are not asking that you exercise extra-terltorial jurisdic I tion. We can't get an order from the federal court in New 2 York enjoining Mr. Carr from breeching a protective order 3 there if there is one. We shouldn't bo put on that burden. 4 THE COURT: Well, can't you get an order in New 5 York barring counsel t h e m from getting it from Carr? 6 MR. CRAVEN: No, sir. 7 THE COURT: YCofu can't? 8 MR. CRAVEN: We go in there and find that the 9 material is protected there and that court would have 10 jurisdiction only to not require us to turn it over to 11 counsel. If counsel goes out and gets it somoplace else, 12 that doesn't offend the protective order of the New York 13 Court. Mr. Carr has got it now, and if he said he wanted it 14 for this litigation, he's got it. He can use it in this 15 litigation. Now let New York and West Virginia decide it 16 on the basis or the New York and West Virginia law, or the 17 federal rules, and we have an additional problem, Judge. 18 Some of the matarial that you ordered turned over was for all 19 practical purposes in our view the same with reference to the 20 scope of privilege as come of tho material you denied a 21 turn over. We see no discernible difference in the material. 22 We think the rulings are inconsistent. I 'm not trying to 23 open up andsuggest that you now change your mind and give 24 them something that you didn't give them. I 'm just saying I what motive does Hr. Carr want to use this material to moot 2 questions that are going to be in courts in New York and 3 West Virginia? Now, I don't believe that's cricket. W e 're 4 not playing cricket. But w e 're using discovery not for cat 5 and mouse games. .1 believe that we're entitled to that kind 6 of protection, and we are adamant that we are entitled to 7 that kind of protection. I suppose had we known, I don't 8 know what we would have done. Hind sight isn't even getting 9 very good anymore. Bit nevertheless, we want the protective 10 order, and in the absense -- I mean Mr. Carr has already * 11 said 30 days. I don't question that he's abided by his own 12 30 day limitation. 13 THE COURT: Sure. 14 MR. CIIAVEN: I suppose the Supreme Court is getting 15 tired of hearing about this case, or reading about the case, 16 as I understand it the Law Bulletin i3 getting ready to do 17 whatever they do. But anyway, we need time to get a super 18 v i s o r order because we think just very clearly in the 19 absense of a further agreement by Mr. Carr or protective 20 order hero that the Illinois Supreme Court will say that the 21 New York and the West Virginia courts can decide their own 22 scope of discovery and wo won't do it for them and moot the 23 issue. 24 TH2 COURT: You're telling me that a New York or 1 West Virginia or federal court cannot tall ona of the counsel lir 2 that appears in front of it in a case at issue t^iat they are 3 not allowed to get by other maan9 what that court has said 4 they are not entitled to have in their particular litigation? 5 MR.. CHAVEN: I don't know. I know this, I k ne w 6 that this Court has jurisdiction to tell Mr. Carr that you ... j. /',, * . 1*s'* * t * 7 gave it to him to use in this litigation, and you d i d n 't give 8 it to him to barter with other counsel in other cases, and 9 that that was an improper use of discovery. We d o n 't have 10 to worry about what New York might or might not do. We're II here, we have Mr. Carr here, and I don't doubt that he would 12 abide by this C o u r t 's decision and this Court's order, and 13 I d o n 't believe that thi3 court said -- that if this court 14 said give it to Mr. Carr to barter -- I don't believe that 15 thi3 court gave it to Mr. Carr to barter with. You gave it 16 to Mr. Carr to give him a chance in what he said was a fair 17 trial. He wanted to see it. Judge, we have, on this 18 question of discovery, I 've been digging and looking and I 've 19 got stacks or material as to what the scope of discovery in 20 this case is, over 700,000 documents, hundreds of thousands 21 of dollars of just divulging material, under precedent as far 22 as I can tell, with maybe MCI/iTT exception. If we have to 23 go through all of this kind of stuff, and then he takes it 24 and barters and makes whatever kind of use, when it's given for a limited purpose and then wnen the Court recognizes that 3*r"yY.,* I there is a debatable issue as to whether or not it's privilegec 2 As I said, I think there's some inconsistency irfythe rulings. * 3 In some instances it was turned over, others it wasn't. 4 There's a difference in format and so forth. But we think ' 5 work product was offended by the ruling. But where are we in 6 . t protecting ourselves in other litigation if work product is . . . . .. .. . . 7 in fact turned over? Where are we if under federal law it's 8 not discoverable, under Illinois law it is, and Mr. Carr has 9 given it to New York counsel? That's like telling the 10 jury to disregard something. If counsel has it and the 11 Court says you can't use it, hew do you determine whether 12 they used it or not? The instruction tc tell -- to admonish 13 the jury to disregard the fact that Counsel hit somebody in 14 the nose, you know it's just something that'3 there, everybed 15 saw It, and you tell then to move it out of their nind. 16 That's unfair to give us that burden. We would like the 17 Court to issue a protective order, and in the absence of 18 that protective -- permanent protective ordor, or at least 19 until the final conclusion of this litigation, to give us 20 time to go in for a supervisory order. 21 THE COURT: So in other words, you re asking me 22 to extend what was agreed upon the other day? 23 MR. CTuV/EM: I'm perfectly content if Mr. Carr will 24 extend it. Juc*;c, we're asking you to reconsider the whole 1 thing. 2 THE COURT: I understand that. 3 I'd. CRAVEN: To give us a protective order. 4 THE COURT: I understand that. 5 MR. CRAVEN: But in the absence of a protective 6 order, then we will go to the court and try to get a protec- 7 tive order. \. ? 8 MR. CARR: Are you through? 9 MR. CRAVEN: Yes. IO MR. CARR: Your Honor, this Court has interpretted 11 Illinois rules and case law relating to discovery, and it has 12 held that material A is not privileged as "work product under 13 Illinois law, that it is not work product. Now Counsel 14 is asking the Court tossay, to interpret the federal court 15 rules and say that this same material under federal court 16 rules is privileged by federal rules called work product. 17 This Court and the attorneys in this case have a difficult 18 enough time knowing what the law is in Illinois that applies 19 to discovery, without the same time going in and researching 20 and arguing point whether this is or is not work product 21 under federal court rules. I could quarrel and debate whethei 22 or net this is work product under any number of federal court 23 cases. The work product rule is not slmoly apply when 24 Counsel fer the other side says this is work product. The I \. 1 Court goes in on an ad hoc basis and looks at document by 2 document as this Court has done, to determine whether it is 3 or is not work product under federal court rules. To require 4 this Court then to say that everything that they're calling 5 work product is, in fact, work product under federal court .; - 6 rules is actually putting a burden on thi3 Court that this 7 Court is not -- should not accpet. Ab an officer of this 8 court, and as attorney of my clients, I have the right to use 9 the material that is given to me in any way permissible under 10 Illinois law. I don't have the right to divulge knowledge, 11 trade secrets and work secrets insofar as the process is 12 concerned, and the Court has issued an order that protects I 13 them for things that are truly trade secret9. But I knov; of 14 no precedent, I knew of no case, and Counsel doesn't cite 15 any case, that suggests this Court can prevent me from the 16 free exchange of information with other counsel in other 17 jurisdictions about the material that I've been given. I'm 18 not representing to this court, that I'm going to run out 19 tomorrow and give out what they call work product. But I 20 certainly don't believe that this Court has the right at 21 Counsel'3 request to put a burden on me, if I want to give 22 a piece c c material to counsel some place, to put a burden 23 on use to say I've got to go into that federal court and 24 dispute whether or not this is or is not work product, or if 176 t I I give up some material that I'm going to be in contempt of 2 this Court, when in fact it's freely discoverable under *^ 3 Illinois law, then what we would do then, if the Court could /** "7 4' 4 then say well, we've got a lawsuit going on in West Virginia, 5 or we've got a lawsuit going on in Iowa, or w e 've got a law 6 suit going on in Missouri, is this material useable in Missour .\ 7 Either In the federal or the state court, or in Iowa, This 8 Court would be called upon to Interpret the laws of 48 states 9 and of the 9 circuits to decide what is work product and 10 protection in those particular cases. No, I think it's a 11 burden that they're trying to put on this court by saying 12 everything that is -- they've assigned the label work product 13 is privileged from discovery in all the 50 states, in all 14 the federal jurisdictions. I Insist this Court should not 15 put that burden on me. If they want to go to the Supreme 16 Court of Illinois to define my obligation, if I am obligated 17 to not give up this work product to some other lawyer some 18 ether place, then I'm obligated to do it cn ray own as an 19 officer of this court, and because the ethics of the profession 20 so say that I should not do it. I certainly -- this Court 21 should not say that I'm engaging in unethical conduct or 22 attempting to prelimit what I can or cannot do. I know what 23 ray obligations are and I don't know of any law anywhere that 24 says because one court may call something work product that 1 I may not use that in any way that I see fit in some other 2 jurisdiction. I think the Court is exactly right. If you 3 learn In this case that I was attempting to avoid an order 4 that you put on rae as far re getting Information was concerned, 5 I 'm under the jurisdiction of this cour, and if I tried to 6 avoid It. If you told me that I could not get X material, \. * 7 that it Is privileged and that I may not discover it, then if 8 I violate that order, or if they bring up information that 9 I'm violating the order, I'm subject to your jurisdiction. 10 To ms it's ludicrous for Counsel to suggest that those II lawyers that are subject to the power and the jurisdiction 12 of the federal courts in New York, or West Virginia, or t 13 Timbuktu cannot apply to those courts for protection orders 14 upon counsel of record, ju3t as I am subject to the orders 15 of this court, those lawyers are subject there. And if they 16 want to prevent this material from falling into certain 17 hands, and if they can prevent it that way, they have the 18 right to do so. But they certainly should not be allowed 19 to circumscribe or limit ray rights. I don't intent to use 20 this as counsel says, to barter. 3ut I intend to use this 21 for the purpose of arriving at the truth wherever, and to hel 22 others arrive at the truth. I kn o w that in -- I have a case 23 pending in this court right now, the Ramiere case, the produc 24 was manufactured in Icwa. Under the discovery rules of Iowa  tt I I could not get certain material in Iowa It's privileged 2 up In Iowa. But it's clearly discoverable in Illinois. They i 3 tried to argue here that they didn't have to produce that 4 materialbbecause It's not discoverable In Iowa. It was 5 discoverable here. I got it here. Counsel in Iowa had given 6 me information, and I was told in advance -- and I told In 7 advance that I 'm going to give information to Counsel in Iowa. 8 If you can go to Iowa courts and prevent me from giving that 9 Information to Iowa attorney, I'll certainly oblige. I 'm 10 not going to do that without order of court. Neither the II Iowa court or this court entered any order upon me not to 12 give this information to Iowa counsel. That's the only 13 practical experience I 've had with jurisdictions that had 14 different rules relating to discovery and privilege. Based 15 upon that experience I would say if you can get the federal 16 court in New York, which has jurisdiction of those parties 17 and counsel to order them not to get it from me, then they'd 18 never have -- I am not going to broadcast it. I 'm not going 19 to announce to the world, although I have a right to do so. 20 I see nothing In the material that the court gave me that 21 could even be remotely called something that could prejudice 22 Monsanto if it' 3 sent elsewhere. I see nothing in it that 23 is not discoverable. I see nothing In it that could be called 24 work nrcduct and labeled, and thusly prevented from discovery  ' ** I either here or elsewhere. J** 2 MR. CRAVEN:' If I may. 3 THE COURT: Sure. 4 MR. CARR: I will, if counsel advises me that they 5 want to present this to the Supreme Court, I 'm more than 6 willing to not divulge it to anybody else, to give you a 7 chance to file pleadings. 8 MR. CRAVEN: We shouldn't have to go to the 9 Supreme Court, v 10 MR. CARR: What I 'm saying is If you want to go 11 for the supervisory order, I 'm certainly willing to wait -12 I 'll wait 30 more days and give you another chance to file in 13 the Supreme Court. If you want that time. 14 MR. CRAVEN: Let me address the question. We 15 shouldn't have to go to the Supreme Court. Rex misapprehends 16 the is3ue. 17 MR. CARR: One of the two of us. 18 MR. CRAVEN: And is mixing it up. Protective 19 orders are not strangers to the law. They're entered all the 20 time. 21 THE COURT: Sure. 22 MR. CRAVEN: We arc not talking about materials 23 that are discovered, and that there's no debate about. I 24 know there are pools of information in product's liability I cases, Pento cases, these kinds of things. Everybody gets into 2 the thing that they contribute. I know -that. I'm talking 3 about information that he has, and we're not talking about 4 all things that he discovered, we're talking about those 5 things that were submitted for in camera inspection that we 6 debate as to whether they are or are not discoverable. That's 7 why they were in camera. That's all we want is a protective 8 order there. Rex knows very well that we can't go out to 9 New York and get an order that all New York lawyers can't go 10 do\7n and get this little secret cash from Rex Carr. That's 11 ju3t not -- that's just unreal. 12 MR. CARR: Hold it. Let me interrupt. You're 13 talking about cases pending in New York in a federal court. 14 You're saying you can't go to that court and get an order? 15 MR. CRAVEN: No, we can't go to that court and 16 say that New York lawyers generally couldn't 17 MR. CARR: Not generally. You're talking about a 18 case in court. 19 MR, CRAVEN: He's really 3aying for some reason h e 's 20 trying to switch the whole forum. New York will decide itsalf 21 the question of what's privileged. He is not entitled to moot 22 it by giving the stuff away. He's entitled to use it in 23 this litigation, but that's all. That's why this court gave 24 it to him. Now West Virginia will decide, and I know that you aIp * '" P % can have diverse rulings by diverse courts on the same subject fitter and so forth. -But, Judge, not the general discovery -- THE COURT: I realize you're limiting it to the in camera, the incamsra stuff. MR. CRAVEN: What happens if the Supreme Court when r k this case, and if it ever concludes and gets there, and they j look at it and say Judge Goldenhersh was in error when he ordered this turned over? It's clearly work product. It's clearly protected. It's clearly privileged. Well, the genie is out of the bottle because Mr. Carr has traded it off for some purpose. It precludes us from having a fair examination of that question. It moots the issue on appeal. That's not fair. We're entitled to 3ome reasonable protection. That's all we're asking. THE COURT: Okay. After hearing all this argument, I think that my original decision was correct, in effect you're telling me you are suggesting that I decide what Is proper In New York and or a Missouri court, or a United States District Court, wherever that's operating under the federal rules. You are ineffect, and you're also telling me now in this argument for reconsideration, not only that, but that those particular courts, either state or federal, do not have the power over their own attorneys representing the litigants in front of those courts to prevent them from Cither seeking , .. 6 r receiving what that court in its wisdom has decided nnri naer; it*- own applicable rules is privileged whatever privilege basis. That's not for me to decide, how the parties in this case are under restrictions as far ao trade secrets and proprietary matters like tha^; and I t- , think that is a reasonable, contemplateable type of restricC tion, as far as dissemination of information. But I don't 8 think with the kind of restriction that you're asking for is. 9 I think that my original ruling was correct. I understand -- 10 I understood then that it wasn't explicitly noted in the 11 record, it is explicitly now that w e 're talking about the 12 in camera materials. But that protective order as far as 13 trace secrets and whatever applies to that as well as to the 14 other, of course. But I think my ruling was correct. I 15 don't think that this court has any business doing what 16 you're asking it to do. I also note that we end on another 17 agreement tc wait a few days, which this court, that s fine 18 with me. But as far as entering the protective order that 19 was suggested to this court earlier in the month, August 6 20 I suppose, I think my decision at that time was correct. I 21 think it was appropriate as to what this court should do. 22 It's done with the realization, having done a substantial 23 amount of research in order to determine what was discoverabl 24 and net discoverable here, that there are differences at leas 181 'it"i.'V ',, *'* -I . 1 t I between Illinois and the federal courts, that it's not ' s. ''J-* * -- 2 appropriate for this court to take on this function of decid- ' V* *''' t"- ; >*? I3 ing what's appropriate there or delegating it to either of 4 the parties. And under the circumstances*' your M i o n t& 5 Reconsider the Motion for Protective Order is de 6 MR. CRAVEN: For the record, Rex, youi^ 30 days. 7 Now what kind of time limit are we talking about now? iThirty 8 days from when? jp "* 9 MR. CARR: Whenever you want, Jim. There is ncthing IO pressing me to pass this out to anybody. Nobody has asked 11 for it. There's no on going cases of which I 'm aware that 12 are bine tried or anybody has asked me for it. If you want 13 to go to the Illinois Supreme Court, you tell me how much 14 time you need and I'll agree to it. 15 MR. CRAVEN: 45 days. 16 MR, CARR: Sure. 17 MR, CRAVEN: So for 45 days you're under a voluntary 18 so called -- 19 MR, CARR: Absolutely. 20 MR. CRAVEN: Fine. 21 THE COURT: I have no objection to any arrangement 22 you gentlemen want to make among yourselves like that. 23 MR. SEIGFRE3D : I'll be under it too, Jim, just in 24 case. 132