Document ZQkgoLYemQyrgZo8BbdjkJvd

f NO.________ IN THE SUPREME COURT OF ILLINOIS FRANCES E. KEMNER, et al., and all ) other cases consolidated for trial ) with Cause No. 80-L-970, in the ) Circuit Court of St. Clair County, ) ) Plaintiffs, ) ) vs. ) ) MONSANTO COMPANY, ) Defendant-Petitioner, ) ) ) vs. ) ) HONORABLE RICHARD P. GOLDENHERSH, ) JUDGE OF THE CIRCUIT COURT OF ) ST. CLAIR COUNTY, ) ) Respondent. ) From the Circuit Court, Twentieth Judicial Circuit, St. Clair County, No. 80-L-970 Hon. Richard Goldenhersh, Presiding Judge AFFIDAVIT COMES NOW Bruce D. Ryder, and upon his oath deposes and states that he is one of the attorneys of record for Defendant-Petitioner Monsanto Company in the above-captioned cause; that he has prepared the supporting record attached to Monsanto's Motion for Supervisory Order herein as Exhibits A J; that said exhibits are true and correct copies of the pleadings and portions of the transcript described in said Motion; and that the facts contained in said Motion are true and correct to the best of his information, knowledge, and belief COUNTY OF ST. CLAIR ) ) SS. STATE OF ILLINOIS ) Subscribed and sworn to before me this & September, 1985. day of />'*'" '''\ a w r :.. My Commission expires Muy, ' .v,. J'//-7/$,7 LZ Notaci Public i^rrve-ruiJ 2 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et al., Plaintiffs, v. MONSANTO COMPANY, Defendant. DEFENDANT MONSANTO COMPANY'S MEMORANDUM IN SUPPORT OF SUBMISSION OF DOCUMENTS FOR IN CAMERA REVIEW The files of Monsanto's inhouse attorneys contain a number of documents prepared for trial in cases other than this which are nevertheless responsive to this Court's current order concerning discovery. Among these documents are a printout of a computer data base and certain "issue papers" prepared by outside consultants and the law firm of Townley & Updike of New York in preparation for the trial of In re "Agent Orange" Product Liability Litigation, Cause No. MDL 381 pending in the United States District Court for the Eastern District of New York. The facts stated in the Affidavit of Richard J. Barnes, a partner at Townley & Updike, demonstrate that these documents should be protected from discovery under the attorney work-product provisions of Supreme Court Rule 201(b) (2). Supreme Court Rule 201(b) (2) states: Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party's attorney. The EXHIBIT A 0 "V`v r---J court may apportion the cost involved in originally securing the discoverable material, including where appropriate a reasonable attorney*s fee, in such manner as is just. In Consolidation Coal Company v, Bucyrus-Erie Company, 89 111.2d 103, 432 N.E.2d 250 (1982), the Illinois Supreme Court applied that rule to reports prepared by non-attorneys. The test applied by the Court was whether the report reflected or disclosed th theories, mental impressions, or litigation plans of the attorneys or whether the report was the product of the attorneys1 mental processes as communicated to the person preparing the report. Id., 432 N.E.2d at 254; see Sutherland & Deitrick, "The Attorney-Client Privilege and Work Product Doctrine in Federal and Illinois Courts," 73 Illinois Bar Journal 448, 458 (1985). Should this Court conclude that any portion of these materials is discoverable, Monsanto requests, under the terms of Supreme Court Rule 201(b)(2), that the Court apportion the cost of preparation of these materials between Monsanto and Plaintiffs. Monsanto is presently preparing information to show the costs of producing this material, which will be,filed in the event this Court concludes any of these documents should be produced. While these figures have not been completed, Monsanto estimates that the outside consultant costs for these documents is several hundred thousand dollars, in addition to the cost of over 600 hours of attorney time by Townley & Updike. 2- - To permit Plaintiffs to have the benefit of the time and expense of preparing this information without paying a proportional share for its use would be grossly inequitable and oppressive. Monsanto does not believe that these documents are subject to discovery; the facts demonstrate that they satisfy the tests set forth by the Supreme Court in Consolidation Coal. The computer data base, the contents of which are contained in computer printouts, documents C16689-92, was prepared by Weinberg Consulting Group Inc. after numerous meetings between Dr. Weinberg arid Richard Barnes, one of Monsanto's attorneys in the Agent Orange case, in which Mr. Barnes' litigation plans and theories of the case were discussed. The format and structure of the data base were jointly designed by Mr. Barnes and Dr. Weinberg. (Barnes Aff. 115) . In addition, the criteria for the`summaries and evaluations of key literature J references were jointly established by Mr. Barnes and Dr. ; Weinberg. (Barnes Aff. 116) . These computer printouts are the \i1 product of the attorneys' thought processes and are therefore protected from discovery by Supreme Court Rule 201(b)(2). The issue papers, documents C16693-C17436, are also protected from discovery. As with the computer data base, Mr. Barnes met with Dr. Weinberg and the other consultants involved in their preparation and discussed with them at length his -3- litigation plans, strategies, theories, and mental impressions concerning the litigation. (Barnes Aff. 118) . In addition to this input, all of the papers were revised and edited by attorneys once they were drafted. (Barnes Aff. 1110) . Thus, the issue papers contain substantial material written by attorneys based on their mental impressions of the case which is inextricably combined with the work of the outside consultants. Each of the issue papers contains evaluations of arguments expected to be used at the trial of the Agent Orange case which clearly reflect the litigation plans and theories of Monsanto's attorneys. These documents must be protected from discovery by Supreme Court Rule 201(b) (2) . COBURN, CROFT & PUT2ELL Kenneth R.Heineman Richard S. Cornfeld Bruce D. Ryder 312 S. Illinois Street Belleville, Illinois 62220 (618) 277-1020 Attorneys for Defendant Monsanto Company -4- CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate copy of the foregoing was hand-delivered this 6th day of May, 1985, to the following attorneys of record: Mr. Rex Carr Mr. Jerome Seigfreid 109 S. High Street Belleville, Illinois 62221 vi { *- IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et al., ) Plaintiffs, ) ) ) No. v. ) MONSANTOCOMPANY, ) ) Defendant. ) ) AFFIDAVIT OF RICHARD J. BARNES COMES NOW Richard J. Barnes and upon his oath deposes and states as follows: 1. I am an attorney licensed to practice in New Y and a partner in the law firm of Townley & Updike. 2. I am an attorney of record for Monsanto Compan in the case In re "Agent Orange" Product Liability Litigation. Cause No. MDL 381 pending in the United States District Court for the Eastern District of New York. 3. I am the partner in my firm who was responsibl for preparing the causation part of Monsanto's defense in the Agent Orange case. After familiarizing myself generally with the legal, scientific and medical issues involved in this aspect of the case, I came to the conclusion that the attorneys in my firm who would be handling all aspects of causation would EXHIBIT B need the assistance of a scientific consultant to assist them and me in preparation of Monsanto's defense given the highly technical scientific and medical issues involved in the case. 4. In August of 1983, after conducting an investigation into the qualifications of several individual consultants and consulting firms, I retained on behalf of my firm, Myron S. Weinberg, Ph.D. of Weinberg Consulting Group Inc. in Washington, D.C. After several meetings with Dr. Weinberg, and based on my analysis of the legal and scientific issues involved, I realized that the attorneys in my firm would need to have a command of the comprehensive literature relating to the highly technical and complex scientific issues involved. I recommended that we set up a computer data base of the extensive worldwide scientific literature relevant to the issues in the Agent Orange litigation. This recommendation was approved by the client. 5. I had numerous meetings and conference calls with Dr. Weinberg during which I outlined to Dr. Weinberg our needs, based upon our litigation plans and theories of the case, and established the format and structure of the data base and the methodology to be utilized in preparing abstracts and evaluation of the literature that would be included in the data base. 6. Attorneys in Townley & Updike played a major r in the design, preparation and utilization of the scientific -2- data base. For example, one associate and I played an extensive role in coming up with the list of key words that would be used for identifying and accessing the literature. In addition, working with Dr. Weinberg, I established the criteria that would be utilized by him in preparing summaries and evaluations of key literature references. 7. I also determined that our defense of the causation case would be aided by the preparation of what I called "issue papers*' which would deal separately with discrete components of the causation case. With the assistance of an associate and Dr. Weinberg, I designed the content and form of the issue papers as well as the subject matters to be covered. During the fall of 1983 I had many meetings with Dr. Weinberg to discuss the preparation of these issue papers. Because of the magnitude of the task, it became necessary for Dr. Weinberg to retain several individual consultants and consulting firms to function as subcontractors on the preparation of the issue papers. I met with approximately a dozen of these scientific consultants to explain in detail to them the purpose of the issue papers and the manner in which they should be prepared. 8. During the course of the meetings I explained to Dr. Weinberg and the other consultants our litigation plans, strategies and theories, my own mental impressions with respect to several aspects of the case, discovery matters, including the anticipated depositions of both plaintiffs' and defendants' -3- expert witnesses, and our contemplated trial strategy. All of this was necessary so that the scientific consultants would have a better understanding of how the attorneys in my firm expected to utilize the issue papers when they were completed. 9. After defining, in consultation with Dr. Weinberg, the subject matters to be dealt with in the individual- issue papers, I instructed Dr. Weinberg and the consultants to prepare draft outlines of an issue paper for each of the subject matters selected. Each of those outlines was reviewed and revised by attorneys and many meetings were held with each of the authors of the outlines to discuss and explain our revisions. 10. After the outlines were approved, seven '' attorneys, including myself, were given responsibility for one or more issue papers. As drafts of the issue papers were prepared by the consultants, the responsible attorney reviewed and revised them and then met with the author of the issue paper to discuss the changes. A number of the issue papers went through several drafts with the responsible attorney being intimately involved, in person and by telephone, with the author of the issue paper. 11. The purposes of the issue papers as designed by the attorneys in my firm were (a) as an educational tool for any attorney in my office who would have responsibility for a particular area of the causation case, (b) to aid the attorneys in my office in preparing for and taking the depositions of plaintiffs' experts, (c) to aid the attorneys in my office in preparing for and taking the depositions of individual plaintiffs, e.g., on the issue of other causative agents, and (d) to enable the attorneys in my office to deal intelligently with expert witnesses retained by us. 12. The seven attorneys in my firm who were involved in the creation and planning of our scientific data base or the issue papers, or both, devoted in excess of 600 hours to those tasks. In addition to numerous lengthy conference calls, I attended at least sixteen meetings in Washington or New York with Dr. Weinberg and the other consultants involved discussing the data base and the issue papers. All told there were some thirty meetings involving Dr. Weinberg and his group arid attorneys in my office with respect to the data base and the issue papers. 13. These issue papers and the computer data base were prepared for the sole use of defense counsel in the Agent Orange litigation. Copies of the issue papers and the summaries and evaluations of the literature on our data base were not provided or shown to any expert witness. Because of -5- the protected nature of said documents under Fed.R.Civ.P. 26(b)(2), said documents were never produced to plaintiffs* counsel in the Agent Orange litigation. Further affiant sayeth not. Richard J. Barnes COUNTY OF NEW YORK ) ) SS. STATE OF NEW YORK ) 4 < Subscribed and sworn to before me this i day of May, 1985. My commRiOsNsl ir AornSiHexpires: Nota'CryudPiuiN-bcoldi.c.inS*Kt-s1it7ro7.c2oo0f?C!McouwnlyYorkU.L -- Ci i.n..on V.'rch00, - -6- CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate of the foregoing was hand-delivered this 6th day of Hay, 1985, to the following attorneys of record: Mr. Rex Carr Mr. Jerome Seigfreid 109 S. High Street Belleville, Illinois 62221 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et al. Plaintiffs, v. No. 80-L-970 MONSANTO COMPANY, Defendant. ) DEFENDANT MONSANTO COMPANY'S MOTION FOR PROTECTIVE ORDER COMES NOW Defendant Monsanto Company and moves for a protective order restricting dissemination of certain materials prepared for use in other litigation, and in support hereof states as follows: 1. Monsanto has produced and will produce for in camera review by this Court certain documents prepared in connection with In re "Agent Orange" Product Liability Litigation, Cause No. MDL 381 pending in the United States District Court for the Eastern District of New York, and Adkins, et al, v. Monsanto Company, Cause No. 81-2098 pending in the United States District Court for the Southern District of West Virginia. 2. Said documents are not discoverable in those cases because it constitutes attorney work-product under the provisions of Federal Rule of Civil Procedure 26(b)(3). 3. In the event this Court orders production of said documents or any portion thereof to Plaintiffs, disclosure of said documents to Monsanto's opposing parties or counsel in those cases would cause Monsanto unreasonable annoyance, expense, EXHIBIT C disadvantage, and oppression, and would unduly prejudice Monsanto in its preparation and trial of those cases. 4. Entry of the proposed protective order will not prejudice Plaintiffs in the conduct of this case. WHEREFORE, Defendant Monsanto Company prays that this Court enter a Protective Order in the form of the proposed Protective Order^ attached hereto. COBURN, CROFT & PUT2ELL Bruce D. Ryder 312 S. Illinois Street Belleville, Illinois 62220 (618) 277-1020 Attorneys for Defendant Monsanto Company -2- IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et al Plaintiffs, V MONSANTO COMPANY, Defendant ) No. 80-L-970 ) ) PROTECTIVE ORDER Upon the Motion of Defendant Monsanto Company, the Court having been advised in the premises, it is hereby ORDERED as follows: 1. Whereas this Court's discovery orders in the aboveentitled cause may require Monsanto Company to disclose certain documents prepared in anticipation of litigation in other cases pending against it which are not subject to discovery in those cases, the Court finds that Monsanto Company is entitled to a protective order restricting the use of such information to this litigation. 2. Monsanto Company may designate as work product material subject to this protective order any documents prepared in anticipation of litigation in other cases. Such designation may be made by marking documents supplied to Plaintiffs with the notation "Federal Work Product - Subject to Protective Order", or by any other means which reasonably informs the parties that the documents are subject to the terms of this Order. 3. In the event that Plaintiffs desire to dispute Monsanto Company's designation of any document as subject to this Protective Order, Plaintiffs shall abide by the terms of this Order respecting the confidentiality of same unless or until the Court finds,' upon motion duly made and presented, that said document was incorrectly designated as work product information. 4. All material' subject to this Order is to be given to counsel for Plaintiffs and shown or disclosed only to the individual Plaintiffs and to no other persons. Said material is to be used only for purposes of this case and for no other purpose. 5. Upon the request of Monsanto Company made at the conclusion of this action, all documents subject to this Order (including copies thereof and extracts therefrom) shall promptly be returned to Monsanto Company. 6. Nothing in this Order shall be construed to regulate the conduct of the actual trial of this case, nor to limit the right of any party to seek amendments hereto, or to seek additional protective orders pertaining to pretrial proceedings and trial. ENTERED this _______ day of ______________ , 1985. Judge CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate copy of the foregoing was hand-delivered this 6th day of May, 1985, to th following attorneys of record: Mr. Rex Carr Mr. Jerome Seigfreid 109 S. High Street Belleville, Illinois 62221 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et a l -, Plaintiffs, v. MONSANTO COMPANY, Defendant. DEFENDANT MONSANTO COMPANY'S MEMORANDUM IN SUPPORT OF SUBMISSION OF DOCUMENTS FOR IN CAMERA ______________________ REVIEW______________ The files of Monsanto's inhouse attorneys contain a number of documents prepared for trial in cases other than this which are nevertheless responsive to this Court's current order concerning the discovery. Among these documents are certain reports prepared by outside consultants and the law firm of Bowles, McDavid, Graff & Love of Charleston, West Virginia, in preparation for trial in the cases consolidated as Adkins v, Monsanto Company, Cause No. 81-2098 pending in the United States District Court for the Southern District of West Virginia. The facts stated in the Affidavit of Charles M..Love, III, a partner at Bowles, McDavid, Graff & Love, demonstrate that these documents should be protected from discovery under the attorney work-product provisions of Supreme Court Rule 201(b)(2). Supreme Court Rule 201(b) states: EXHIBIT D > Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party*s attorney. The court may apportion the cost involved in originally securing the discoverable material, including where appropriate a reasonable attorney*s fee, in such manner as is just. In Consolidation Coal Company v. Bucyrus-Erie Company, 89 111.2d 103, 432 N.E.2d 250 (1982), the Illinois Supreme Court applied that rule to reports prepared by non-attorneys. The test applied by the Court was whether the report reflected or disclosed the theories, mental impressions, or litigation, plans of the attorneys or whether the report was the product of the attorneys' mental processes as communicated to the person preparing the report. Id,, 432 N.E.2d at 254; see Sutherland & Dietrick, "The Attorney-Client Privilege and Work Product Doctrine in Federal and Illinois Courts," 73 Illinois Bar Journal 448, 458 (1985) .. Monsanto does not believe that these documents are subject to discovery; the facts demonstrate that they satisfy the tests set forth by the Supreme Court in Consolidation Coal. Mr. Love met with Dr. Weinberg and the other consultants involved in their preparation and discussed with them at length his litigation plans, strategies, theories, and mental impressions concerning the litigation. (Love Aff. If6) . In addition to this input, drafts of all of the reports were reviewed by attorneys, whose comments were incorporated into the final reports. (Love Aff. 117). Thus, the reports contain the. attorneys' -2- litigation plans and mental impressions of the case, which are inextricably combined with the work of the outside consultants. The reports also contain evaluations of arguments, expected to be used at trial in the Adkins cases, which clearly reflect the litigation plans and theories of Monsanto's attorneys. These documents must therefore be protected from discovery by Supreme Court Rule 201(b) (2) . In the event this Court decides that any portion of any of these documents should be produced, Monsanto requests that this Court enter a Protective Order in the form proposed in its Motion filed May 6, 1985. Monsanto also requests that, pursuant to Supreme Court Rule 201(b)(2), this Court apportion the cost of preparation of these materials and assess against Plaintiffs the portion of such costs corresponding to the portion of these materials produced. COBURN, CROFT & PUTZELL Richard S. Cornfeld Bruce D. Ryder 312 S. Illinois Street Belleville, Illinois 62220 (618) 277-1020 Attorneys for Defendant Monsanto Company -3- CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate copy of the foregoing was hand-delivered this Z9ZL day of May, 1985, to the following attorneys of record: Mr. Rex Carr Mr. Jerome Seigfreid 109 S. High Street Belleville, Illinois 62221 H * { IN THE C IRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et a l., Plaintiff, v. MONSANTO COMPANY, Defendant. No. 80-L-970 A FFID A VIT OF CHARLES M. LOVE, 111 COMES NOW Charles M. Love, I I I , and upon his oath deposes and states as follows: 1. 1 am an attorney licensed to practice in West Virginia and a partner in the law firm of Bowles, McDavid, Graff & Love, 1600 Commerce Square, P. O. Box 1386, Charleston, West Virginia 25325. 2. I am an attorney of record for Monsanto Company in approximately 175 cases consolidated for discovery as Adkins, et aL^ v. Monsanto Company, a Delaware corporation, Civil Action No. 81-2098, pending in the United States District Court for the Southern District of West Virginia. 3. I am the partner in my firm who was in charge of preparing Monsanto's defense in the Adkins cases. A fter becoming acquainted with the legal, scientific and medical questions involved in these cases, I came to the conclusion that I and the other attorneys in my firm who would be addressing the causation issues in these cases would need the assistance of a scientific consultant in preparation of Monsanto's defense on these issues. In October EXHIBIT E s' L- of *1983, with the approval of Monsanto, I retained on behalf of my firm Myron S. Weinberg, Ph.D. of Weinberg Consulting Group, Inc. in Washington, D .C . 4. ! determined that our defense of the causation issues would be aided by the preparation of a series of reports which would address individually several of the scientific questions involved in the causation case. I worked with D r. Weinberg to design the content and form of these reports and select the subject matters to be covered. During the fall and winter of 1983 I had many meetings with D r. Weinberg to discuss the preparation of the reports. D r. Weinberg retained several individual consultants and consulting firms as subcontractors to aid in the preparation of the reports. Attorneys from my firm and I met with all of these scientific consultants during preparation of the reports to explain in detail the purpose of the reports and the manner in which they should be prepared. 5. The purpose of the reports was to serve as an educational tool for the attorneys in my office who would have responsibility for the causation issues, to aid those attorneys in preparing for and taking the depositions of plaintiffs' experts, and to enable them to deal intelligently with expert witnesses retained by us. 6. During our meetings, attorneys from my firm and 1 explained to D r. Weinberg and the other consultants our litigation plans, strategies and theories, as well as our mental impressions with respect to several aspects of the cases, including the anticipated depositions of both plaintiffs' and defendant's expert witnesses. This was necessary so that the scientific consultants would have a better understanding of how we expected to utilize the reports when they were completed. 7. As drafts of the reports were prepared by the consultants, attorneys in my firm reviewed them and proposed to the consultant changes in -2- r\ " 'A -/ the scope and approach of the reports which were incorporated in the final reports. Four attorneys in my firm were involved in this preparation process and devoted considerable amounts of time to this project. 8. These reports were prepared for the sole use of defense counsel in the Adkins cases. Copies of the reports were not provided or shown to any expert witnesses. Because of the protected nature of said documents under F e d .R .C iv .P . 2 6 (b )(2 ), said documents were never produced to plaintiffs' counsel in the Adkins cases. Further affiant sayeth not. COUNTY OF KANAWHA STATE OF WEST VIRGINIA ) ) SS. ) Subscribed and sworn to before me this 24th day of May, 1985. My commission expires:- t. M i x OFFICIAL SEAL NOTARY PUBLIC STATE OF W EST VIRGINIA DIANA L KING 1600 Commcret Sauart Charleroi. W '!f V rn- 25VM My Coininiit-an Expire! May IS, 1SS3 -3- CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate copy of the foregoing was hand-delivered this 28th day of May, 1985, to the following attorneys of record: Mr. Rex Carr Mr. Jerome Seigfreid 109 S. High Street Belleville, Illinois 62221 I IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS filed FRANCES E. KEMNER, et al.r Plaintiffs, vs. MONSANTO COMPANY, Defendant. ) ) ) ) ) ) ) ) JUL 0 8 1985 ) No.80-L-970 7 ____ CMcuir clc.rk DEFENDANT MONSANTO COMPANY'S MEMORANDUM IN SUPPORT OF SUBMISSION OF DOCUMENTS FOR IN CAMERA REVIEW Monsanto has produced herewith for _in camera review by the Court documents from the files of its inhouse attorneys relating to the subject matters specified by this Court's current order with respect to discovery, but which Monsanto believes should be protected from discovery by virtue of the attorney client privilege and/or the attorney work product privilege. For the Court's convenience in reviewing the documents, Monsanto has grouped them into nine sets, each of which will be briefly described below, together with a discussion of the reasons that that set of documents is privileged. Monsanto is convinced that these documents, as well as the documents submitted for _in camera review on May 6 and May 28, 1985, should be protected from discovery under Illinois law. In addition, the subject matter of these documents, which discuss the litigation plans of Monsanto's attorneys in EXHIBIT F dioxin-related litigation and legal advice given by Monsanto's attorneys to the corporation, is such that Monsanto will be severely prejudiced in this and other litigation if the contents of these documents were disclosed. Monsanto therefore requests that the Court give it at least a day's advance notice of its rulings on these documents so that in the event of a turnover order it may determine whether to seek appellate review of that order and what appropriate steps to take in order to obtain such review. GROUP I Number Date Author Recipient C22830- 3/4/80 C22834 Jay R. Gentry Ortiz- Robin Bierstedt C22835- 3/4/80 C22836 Jay R. Gentry Ortiz R.T. Berendt J.C. Sabetta C22837- 5/18/81 D.L. King C22838 Pual N. Bowles Charles M. Love Roger W. Tomplins Phyllis M. Potterf Gerard R. Stowers C22839- 6/19/81 Robert T. Berendt C22880 John C. Sabetta C22881 12/17/81 Harry S. Scott John C. Sabetta Charles M. Love C22882- 4/5/82 C22891 F. Hileman (handwritten) note by H.S. Scott) C22892- 3/4/82 C22894 John C. Sabetta Robin J. Stalbow R.T. Berendt T.M. Bistline V Number Date C22895- 4/29/82 C22928 C22938- 5/14/82 C22941 C22942- 5/27/82 C22946 Author Harry S. Scott Robin J. Stalbow Robin J. Stalbow C22947- 6/4/82 C22956 C22957 6/9/82 C22958- 6/22/82 C22959 C22960- 7/2/82 C22962 C22963- 7/14/82 C22971 C22972- 7/30/82 C23062 Harry S. Scott W.R. Udell Harry S. Scott Harry S. Scott Thomas M- Bistline H.C. Godt C23063- 8/24/82 Robert T. Berendt C23066- 10/12/82- John C. Sabetta C23079 C230820 10/18/82 Henry C. Godt C23087 C23088- 10/31/83 Thomas M. Bistline C23097 V Recipient John C. Sabetta Robert T. Berendt John C. Sabetta James E. Tyrellr Jr. H.S. Scott John C. Sabetta Robin J. Stalbow John C. Sabetta John C. Sabetta John C. Sabetta Charles M. Love, III W.B. Bennet D.L. Weber Bowles, McDavid, Graff & Love A.M. Ford H. M. Galloway J.L. Henshaw G. L. Levinskas C.P. Rader H. S. Scott Townley & Updike Charles M. Love John C. Sabetta Robert T. Berendt Thomas M. Bistline Charles M. Love, III Charles M. Love, III Philip D. Pakula 3 Number Date C23098- 11/5/82 C23112 Author Robin Bierstedt Edward T. Ferguson Recipient John C. Sabetta J.E. Tyrrell R.T. Berendt P.M. Pakula C23113- 12/22/82 Harry S. Scott C23114 Charles M. Love, III C23115- 7/22/83 R.J. Barnes C23140 D.K. Sommerer C23141- 9/20/83 Allan M. Ford C23144 Diane Sommerer T.M. Bistline G.H. Griffin F.E. Kearney W.J. McCarville C23145- 10/15/83 Bowles, McDavid, C23151 Graff & Love C23152- 11/28/83 Philip D. Pakula C23159 Robert Berendt C23160- 12/22/83 Edward T. Ferguson, III T . M. Bistline C23162 C23163- 12/23/83 Edward T. Ferguson, III William R. Udell C23164 C23165- 12/23/83 Edward T. Ferguson, III Fred D. Hileman C23166 C23167C23179 C23180 12/28/83 / 1/3/84 David F. Snively Charles M. Love, III C23186- 1/4/84 C23187 Fred D. Hileman C23188- 1/11/84 Richard J. Barnes C23189 C23190- 2/7/84 C23204 David F. Snively R.T. Berendt T.M. Bistline P.M. Pakula Tom Bistline Edward T. Ferguson, III Thomas M. Bistline P. Michael Pleska P.M. Potterfield G. Roush T.M. Bistline 4 f-r\ Number Date Author Recipient C23205- 3/1/84 C23224 Richard J. Barnes Thomas M. Bistline A.M. Ford W. Hinchcliff C23225 4/20/84 W.C. Lucas R.J. Barnes P.D. Pakula B.M. Roth B.G. Sheffler D.K. Sommerer C23479 5/7/84 Robert H. Waldman Charles M. Love, ill C23480- 5/23/84 R.E. Kelly C23484 Charles M. Love, III C23485 5/25/84 Allan M. Ford Dave Snively, III George Roush M. Pleska D. King M. Weinberg G. Levinskas W. McCarville C. Love R. Thompkins C23486- 6/6/84 C23490 C23710C23778 David F. Snively Townley & Updike Charles M. Love Monsanto C23779C23781 W. R. Brooks Dr. A. Ford M. Pleska P. Potterfield D. Snively Dr. W.J. McCarville These documents are correspondence between Monsanto and its outside counsel for In re "Agent Orange" Product Liability Litigation, Townley & Updike, or its outside counsel for Adkins v. Monsanto Company, Bowles, McDavid, Graff & Love. Jay R. Gentry Ortiz, R. T. Berendt, T. M. Bistline, G. H. Griffin, and D. F. Snively are attorneys employed by Monsanto; John C. Sabetta, Robin 5 Brierstedt, Robin Stallow, James E. Tynell, Phillip D. Pakula, Diana Sommerer, Edward T. Ferguson, W. C. Lucas, Richard J. Barnes, B. M. Roth, and B. G. Sheffler are attorneys with the firm of Townley & Updike; Charles M. Love, Paul N. Bowles, Roger W. Tompkins, Phyllis M. Potterfield, Gerald R. Stowers, and P. Michael Pleska are attorneys with the firm of Bowles, McDavid, Graff & Love. These documents are protected by the attorney work product privilege set forth in Supreme Court Rule 201(b)(2). The documents prepared by attorneys, whether outside counsel or employed directly by Monsanto, clearly contain the theories, mental impressions, and litigation plans of those attorneys with respect to these cases. The content of the documents not prepared by attorneys demonstrates that those documents were prepared at the request of the attorneys and on the basis of what the authors of the documents had been told concerning the litigation plans and theories of the attorneys. The fact that these documents were sent to Monsanto's outside counsel in those cases further demonstrates that their preparation was part of Monsanto's litigation effort in those cases; outside counsel otherwise would have had no reason to receive these documents. All of these documents are therefore protected from discovery by the attorney work product privilege. Consolidation Coal Company v. Bucyrus-Erie Company, 89 111.2d 103, 432 N.E.2d 103, 432 N.E.2d 250, 254 (1982). .6 In the event that this Court holds that any of these documents must be produced, Monsanto will be prejudiced not only in the present proceedings but also in the Agent Orange and Adkins cases if this material is made available to its opposing parties or their counsel in those cases. Monsanto therefore renews herein its Motion for Protective Order filed on May 6, 1985, in order to limit disclosure of any documents produced out of any group described in this in camera submission. GROUP II Number Date C23682 12/9/82 C23783- 8/19/83 C23786 Author Thomas Bistline Allan M. Ford C23787 9/2/83 C23789- 9/7/83 C23791 C23792- 9/13/83 C23794 C23795- 9/20/83 C23798 Myron S. Weinberg Myron S. Weinberg Myron Weinberg Allan Ford Recipient Robert E. Soden Myron Weinberg D.R. Bishop T.M. Bistline G.H. Griffin D.S. Frazer M.C. Throdahl W.B. Papageorge R.L. Pflederer J.D. Wilson W.J. McCarville G. Roush, Jr. F.E. Kearney George Roush Dr. Allan Ford Dr. Wm. McCarville Richard Barnes Sommerer- Dr. Myron Beinberg T.M. Bistline G.H. Griffin F. E. Kearney W.J. McCarville G. Roush, Jr. 7 Number Date C23799 9/29/83 C23800- 10/7/83 C23812 Author Myron Weinberg Myron Weinberg C23813- 10/31/83 Myron Weinberg C23815 C23816- 11/3/83 Myron Weinberg C23817 C23818- 11/21/83 Myron Weinberg C23823 C23824- 12/29/83 Wm. A. Shirley C23826 C23827- 2/14/84 A.M. Ford C23834 C23835 2/23/84 A.M. Ford Recipient Allan Ford Richard J. Barnes Diane Sommerer Robert Berendt Fred Panciera Dr. Wm. Gaffey A1 Ford Bob Golden Helene Guttman Nate Karch Martha Linet Tina Long Joe Rodericks Charles Love, III Tom Bistline Myron S. Weinberg A.M. Ford W. J. McCarville T.M. Bistline D.F. Snively K. Johnson D. King W. J. McCarville P.M. Pleska O.S. Ratterman M.S. Weinberg J.D. Wilson G.J. Levinskas T.M. Bistline F.R. Johannsen W.J. McCarville P. M. Pleska G. Roush J. H. Senger D.F. Snively M.W. Stevens M. S . Weinberg J.D. Wilson ft Number Date C23836- 2/24/84 C23849 Author Allan Ford C23850- 3/2/84 C23851 Thomas Bistline C23852- 3/6/84. Ralph Munch C23853 C23854- 3/19/84 Myron Weinberg C23855 C23856- 3/20/84 Myron Weinberg C23857 C23858 3/20/84 Myron Weinberg C23859- 3/23/84 C23860 C23861- 4/2/84 C23862 Marcia Silcox M. Silcox C23863- 4/12/84 M. Silcox C23864 C23226- 4/23/84 A.M. Ford C23478 H.C. Godt Recipient Myron Weinberg R.J. Barnes T.M. Bistline D.F. Snively C.M. Love, III W.J. McCarville Hans Zeisel R.T. Berendt D.F. Snively Myron Weinberg T.M. Bistline W.J. McCarville A.M. Ford Charles Love, III D. Snively M. Silcox Charles Love M. Silcox D. Snively Charles Love D. Snively Charles Love Charles Love D. Snively M. Weinberg Charles Love D. Snively M. Weinberg R.J. Barnes T.M. Bistline W. J. McCarville P.M. Pleska G. Roush D.F. Snively M.S. Weinberg J.O. Wilson 9 Number Date C13714- 5/1/84 C13897 Author W.B. Hinchcliff K. A. Johnson C23865- 5/4/84 C23868 W.A. Shirley C23869- 5/24/84 H.C. Godt C23933 C23934 5/25/84 M.S. Weinberg C23936- 6/19/84 Allan Ford C23937 C23938- 7/5/84 C23944 Myron Weinberg Recipient A.M. Ford H.M. Galloway C. M. Love D. F. Snively R.J. Barnes T.M. Bistline AiM. Ford H.A. Laitinen C. M. Love R.H. Munch P.M. Pleska H.S. Scott D.F. Snively H.C. Godt M.S. Weinberg A.H. Heinze T.H. Laffere W.J. McCarville R.J. Barnes T.M. Bistline A.M. Ford W.J. McCarville P.M. Pleska G. Roush D.F. Snively M.S. Weinberg J.D. Wilson Roger Tompkins Charles Love D.F. Snively W.J. McCarville M. Weinberg Nathan Karch W. McCarville G. Roush J. Wilson K. Johnson Roger Tompkins D.F. Snively C.M. Love W.J. McCarville R. Golden \ Number Date Author Recipient C23497- 10/1/84 Kathleen A. Johnson C23689 A.M. Ford J.T. Garrett D.L. King C.M. Love, III W.J. McCarville G. Roush H. S. Scott D.F. Snively R.W. Thompkins* M.S. Weinberg J.D. Wilson C23690- 10/30/84 William A. Shirley C23709 Dr. Frank Dost Dr. A.M. Ford Michael Pleska D.F. Snively C23945- 2/25/85 M. Weinberg Nathan Karch C23951 Allan Ford D.F. Snively M. Silcox These documents are communications among Monsanto, its outside counsel in the Agent Orange and Adkins cases, and outside experts or consultants retained in connection with those cases. These documents are protected from discovery by the attorney work product privilege of Rule 201(b) (2). As stated in the affidavits of Richard J. Barnes, Charles M. Love III, and Myron Weinberg filed May 6 and 28, 1985, Dr. Weinberg and Weinberg Consulting Group Inc. were retained to assist in the preparation.of Monsanto's defense in the Agent Orange and Adkins cases and considerable time was spent discussing litigation plans and theories with Dr. Weinberg. These documents consist of further discussions of such plans and 11 theories as well as exchanges of information intended to assist Dr. Weinberg and the other consultants in completion of the projects developed as a result of these discussions. The documents not involving Dr. Weinberg contain on their face the discussion of the attorneys1 litigation plans and theories necessary to invoke the protection of the attorney work product privilege. GROUP III Number Date Author Recipient C23952C23958 11/18/82 D.H. Rowland (Handwritten notes by T.M. Bistline) C09617- -C09627 Carr, Goodson & Lee, P.C. Robert Berendt T.M. Bistline E. Kelly G. Roush E. Tillman C23959- -C23971 Carr, Goodson & Lee, P.C. C23972- -- C23981 Carr, Goodson & Lee, P.C. These documents were prepared bv Monsanto's insurer and its counsel in connection with the Agent Orange litigation. On their face, these documents discuss litigation strategy and theories in connection with that litigation and are therefore covered by the attorney work product privilege. In addition, Illinois law recognizes a privilege existing as to communications between a party and its insurer and the / insurer's attorney. Monier v. Chamberlain, 35 111.2d 351, 221 N.E.2d 410, 415 (1966); People v. Ryan, 30 111.2d 456, 197 N.E.2d 15 (1964). These documents thus are also protected by that insurer-insured privilege. GROUP IV Number Date Author C23982- 4/16/79 R.T. Berendt C23987 C23988- 10/26C24046 28/81 J.R.G. Ortiz C22929- 5/11/82 G.R. Stowers C22937 C24047- 6/1/82 C24055 T.M. Bistline C24056 7/8/82 T.M. Bistline C24057- 8/31/82 T.M. Bistline C24063 C24064- 9/13/82 T.M. Bistline C24066 C24067- 11/9/82 R.T. Berendt C24072 C24073- 12/10/82 T.M. Bistline C24076 C24077- 2/16 and T.M. Bistline C24083 2/17/83 C24084- 4/4/83 C24085 T.M. Bistline C24086- 5/5/83 C24088 R.T. Berendt C24089- 8/4/83 C24090 R.T. Berendt Recipient -- -- -- ---- -- ------ 13 !/ Number Date Author Recipient C24091- 10/12/83 T.M. Bistline C24094 -- C24095- 10/18/83 T.M. Bistline C24101 -- C24102- 12/5/83 R.T. Berendt C24107 -- C24108 12/21/83 R.T. Berendt -- C241Q9- 1/14/83 T.M. Bistline C24123 -- C24124- 2/29/84 T.M. Bistline C24132 -- C24133 3/1/84 R.T. Berendt -- C24134- 3/25/84 T.M. Bistline C24161 -- C24162- 4/16/84 T.M. Bistline C24168 -- C23491- 7/24/84 P.M. Potterfield C23493 C23494- 7/24/84 P.M. Potterfield C23496 C24172C24183 C24184C24189 -- -- T.M. Bistline T.M. Bistline --- C24190- -- C24191 T.M. Bistline -- C24200- -C24202 T.M. Bistline -- These documents consist of notes by Monsanto attorneys of meetings or interviews in which they have participated in connection with the Agent Orange or Adkins cases. Notes taken by an attorney necessarily reveal the attorney's mental 14 , processes in evaluating the communications. For this reason, the Illinois Supreme Court has held that attorney notes are subject to protection by the attorney work product privilege. Consolidated Coal Company v. Bucyrus-Erie Company, 89 111.2d 103, 432 N E .2d 250, 253 (1982). This privilege doubly attaches to those documents which are notes of strategy sessions among the attorneys concerning these cases. These documents, of the specific nature described as protected by the Illinois Supreme Court, are therefore privileged and not subject to production in this case. GROUP V Number Date Author C24280- 3/30/81 C24338 C24338 Karch & Assoc. Weinberg Consulting Group C24339- 11/15/83 Karch & Assoc. C24343 C24344- 2/2/84 C24489 Human Performance Systems C24490- 2/2/84 C24585 Human Performance Systems C24586- 4/4/84 C24598 Weinberg Consult ing Group C24599- 6/21/84 M. Weinberg C24623 C24624C24628 C24629- -C24642 Weinberg Consulting Group Weinberg Consulting Group Recipient Bowles, McDavid, Graff & Love T.M. Bistline Weinberg-Consult ing Group Weinberg Consult ing Group -- Charles Love D. Snively Dr. W. McCarville M. Silcox -- -- 15 Number Date Author Recipient C24643 Weinberg Consult ing Group (Handwritten notes by T.M. Bistline) C24645- -- C24650 Weinberg Consulting Group -- C24651- -C24676 Weinberg Consulting Group -- C24677- -- C24698 Weinberg Consulting Group -- C24699- -- C24703 Weinberg Consulting Group -- C24704- -C24708 Weinberg Consulting Group -- These documents are drafts of some of the documents that were submitted to the Court for in camera review on May 6 and May 28, 1985. As discussed in the memoranda in support of those submissions and the affidavits filed therewith, these documents were created by consultants in connection with the Agent Orange and Adkins cases and were largely based upon discussions between the consultants and outside counsel for Monsanto concerning the litigation plans and theories of the outside counsel. These documents are therefore protected from production by the attorney work product privilege. 16 r GROUP VI Number Date Author C24709- 11/24/81 Allan M. Ford C24716 C24717- 3/2/82 C24768 T.M. Bistline C24769- 4/2/82 C24771 C24772- 5/27/82 C24775 H.S. Scott S.G. Collins C24776- 6/2/82 C24783 C24784- 6/25/82 C24787 H.S. Scott (handwritten notes by T.M. Bistline R.S. Nelson C24788- 6/28/82 S.G. Collins C24790 C24791 7/15/82 T.M. Bistline Recipient J.H. Senger R.T. Berendt G. J. Levinskas R.S . Nelson H. S. Scott E. Tillman George J. Levinskas R.T. Berendt H.S. Scott A.M. Ford T.M. Bistline R.T. Berendt T.M. Bistline J.R. Condray G.D. Ingenthron L.J. BoeschfJr. R.V. DeSchutter W.B. Hogeman V.T. Matteucci G. Roush, Jr. E.C. Spurrier R.T. Berendt C.F. Callis J.R. Condray J.H. Senger M. C. Throdahl R.T. Berendt T.M. Bistline J.R. Condray G.D. Ingenthron Dr. George Roush R.T. Berendt 17 Number Date C24792- 9/22/82 C25020 Author W.B. Bennet D.L. Weber C25021- 2/22/83 Fred Hileman C25023 C25024- 5/10/83 A.M. Ford C25025 C25026- 6/10/83 W.R. Gaffey C25030 C25031 7/21/83 H.M. Galloway C25032 8/12/83 T.M. Bistline C25033- 9/16/83 A.M. Ford C25036 C25037- 10/4/83 C25038 T.M. Bistline (Handwritten notes by J.D. Wilson) C25039- 10/12/83 R.T. Berendt C25055 C25056- 1/25/84 H.C. Godt, Jr. C25058 V Recipient J.R. Condray T.M. Bistline H.S. Scott H.C. Godt J.R. Condray T. Bistline W.B. Bennet D.L. Weber T.M. Bistline G.H. Griffin F.E. Kearney T.M. Bistline P. Pakula C.M. Love A.M. Ford T.M. Bistline C.M. Love P. Park G. Roush R. T. Berendt W.J. McCarville J.D. Wilson T.M. Bistline G.H. Griffin F.E. Kearney W.J. McCarville W.J. McCarville W.B. Papageorge J.D. Wilson R.T. Berendt D.F. Snively R.W. Duesenberg T.M. Bistline A.M. Ford O.S. Ratterman, Jr. H.S. Scott, Jr. 18 P -N i Number Date C25059- 1/25/84 C25067 Author H.C. Godt, Jr. C25068- 2/7/84 C25074 C25075- 3/5/84 C25077 C25078- 3/14/84 C25089 C25089- 4/27/84 C25090 W.R. Gaffey W.R. Gaffey Dr. Ralph Munch R.E. Kelly Recipient T.M. Bistline A.M. Ford 0.S . Ratterman, H.S. Scott, Jr. T.M. Bistline D.F. Snively -- D.F. Snively G. Roush E. Tillman A.M. Ford C.M. Love C25091 6/22/84 D.E. Reid C24169- 7/26/84 C24171 C25417- 9/10/84 C25422 Allan Ford D.E. Reid T.M. Bistline R.T. Berendt W.J. McCarville R.T. Berendt T.M. Bistline These documents are memoranda concerning the preparation of Monsanto's defense of the Agent Orange and Adkins cases which were circulated among Monsanto's inhouse attorneys and the Monsanto employees assisting in that preparation. The contents of all of these-documents demonstrate that they were prepared as a result of consultation with Monsanto's attorneys and at their request'. As a result, the documents disclose the theories and litigation plans of those attorneys. These documents are therefore protected by the attorney work product privilege, and Monsanto should not be required to produce them herein. 19 GROUP VII Number Date Author C25092- 4/15/82 R.A. Stohr C25094 C25095- 8/5/80 C25097 R.A. Stohr C25098 2/16/81 R.A. Stohr C25099 10/25/81 R.A. Stohr C25100 11/12/81 R.A. Stohr (handritten notes by P.J. Arnall) C25101 1/14/82 C25102- 9/6/79 C25116 R.A. Stohr Gregory H. Wolk C25117- 4/11/80 J.W. Newbold C25125 C25126- 12/18/80 R.C. Isham C25132 C25133- 8/28/81 K.R. Heineman C25149 C25150- 9/18/81 Paul R. Michael C25151 C25152 12/13/83 Edward T. Ferguson Recipient -- -- -- -- P.J. Arnall D.P. Doherty B.M. McManis R.C. Rutter -- Jay R. Gentry Ortiz R.T. Berendt F.A. Provorny J.M. Schifferdecker Jay R. Gentry Ortiz R.T. Berendt R.A. Stohr D.A. Samford D.R. Bishop J.R.G. Ortiz R.A. Stohr J.R.G. Ortiz R.G. Dahlen P.J. Arnall K.R. Heineman K.R. Heineman J.C. Sabetta L.M. Frieber T.M. Bistline 20 r \ Number Date Author Reel pient C25160- 12/19/83 D.F. Snively C25165 R.T. Berendt T.M. Bistline J.G. Nassif C25166- 1/29/85 A.M. Ford C25169 B.D. Ryder Nate Karch T.M. Bistline D.F. Snively C25170- 9/3/81 C25173 R.A. Stohr -- C25174- 12/2/81 P.J. A m a l i C25175 -- C25176 12/10/81 P.J. A m a l i C25177- 8/23/82 R.A. Stohr C25178 B.M. McManis -- C25179- 11/24/82 T.M. Bistline C25182 C25183- -- C25190 T.M. Bistline C25191- -- C25208 D.F. Snively C25209- -- C25221 D.F. Snively --- -- -- These documents relate directly to this lawsuit and to other litigation arising out of the spill at Sturgeon, Missouri. All of these documents relate to the attorneys' litigation plans, theories and mental impressions, concerning these cases and are therefore protected by the attorney work product privilege. The correspondence from outside counsel is also protected by the attorney-client privilege; the inhouse attorneys to whom it was addressed were persons who held such 21 advisory roles to top management at Monsanto that a decision as to the matters discussed would not normally be made without their advice or opinion. Consolidation Coal Company v. Bucyrus-Erie Company, 89 111.2d 103, 432 N.E.2d 250, 258 (1982). GROUP VIII Number Date C25222- 3/6/79 C25232 Author R.E. Marsh C.D. Barklay S. G. Janik C25233- 6/15/79 C25238 C25239- 1/31/80 C25244 C25245- 5/5/80 C25277 P.S. Park H.M. Keating V.A. Haskins C25278 2/15/83 C25279- 8/4/83 C25282 D.L. Coleman L.D. Plumb C25283- 10/13/83 M.J. Furman C25285 C25286C25371 11/30/84 W.B. Bennet "D.R. Dill H.C. Godt, Jr. D.K. Lynch S.H. Vogel Recipient R. Ewing J. Maiurum C.D. Barclay J.D. Holschuk S. Anderson J.M. Wiles W. Fisher J.M. Alton M. Liebman -- P.S. Park D. Dill F.A. Provorny D. Roman S. Vogel M.M. Liebman J.G. Nassif T.M. Bistline F.J. Stokes J.W. Fullinwider M. Liebman J.V. Insley J. Guidos T.M. Bistline H.S. Scott 22 Number Date Author Recipient C25372- -- C25374 R. LaDriere T.M. Bistline These documents relate to other Monsanto litigation involving dioxin or chlorophenols. All of these documents are protected by the attorney work product privilege, as they were prepared by or at the direction of an attorney and reveal the attorney's litigation plans, theories, and mental impressions concerning that litigation. GROUP IX Number Date Author C25375 11/27/74 J.R. Bley, Jr. C25376- 3/28/78 J.C. McPhillips C25377 C25378- 8/11/78 C25379 C25380- 1/15/79 C25385 C25386- 4/3/79 C25394 P.S. Park F .A. Provorny J.J. Spano (handwritten notes by R.T. Berendt) Recipient P.G. Hammer W.C. Brandenburg J.T. Garrett L.G. Scharpf J.C. Weber F.A. Provorny D.P. Roman R.G. Pier J.D. Wilson R.W. Duesenberg F.C. Rehfield -- P.0. DeGarmo H.M. Keating F.C. Meyer P.S. Park D.R. Bishop W.A. Blase E. N. Brasfield H.W. Curtis M. Dmytryszya J.W. Molloy J.R. Thurrott R.T. Berendt 23 Number Date C25395 6/27/79 C25396- 5/6/80 C25399 Author F.A. Provorny J.D. Wilson (handwritten notes by R.A. Stohr) - C25400- 8/11/83 C25402 C254Q3- 8/26/83 C25405 C25406- 9/15/83 C25411 T.M. Bistline P.H. Smith L.W. Meyer C25412- 9/16/83 J.G. Nassif C25413 C25414- 9/22/83 L.W. Meyer C25416 C16651- 9/24/84 H.D. Toy C16662 Recipient -- T.L. Gossage E.L. Head H.W. Kilbourne J.C. McPhillips M.E. Miller R.G. Pier F.A, Provorny R.A. Stohr D.B. Edwards B.G. Hammond P.S. Park K.C. Sehmert A.F. Werner P.J. Arnall -- M.E. Whelan W. J. McCarville D.B. Edwards M.E. Foresman W.B. Papageorge P.H. Smith M. Whelan W.J. McCarville L.W. Meyer R.T. Berendt W .A. Blase -P.H. Smith D.B. Edwards M.E. Foresman W.B. Papageorge P.H. Smith M. Whelan D.L. Coleman J.G. Nassif P.H. Smith 24 1f Number Date Author Recipient C25423 11/8/84 R.T. Berendt (Handwritten notes by R.W. Duesenberg) R.W. Duesenberg C16666- 3/6/85 C16678 T. Wasser (handwritten notes by P.H. Smith) P.H. Smith C16663- 3/7/85 C16665 P.H. Smith A.W. Wasser J.D. Wilson M. R. Foresman N. E. Prange J.G. Nassif P.A. Easterday These documents were not prepared in connection with litigation, but rather consist of legal advice rendered by or requests for legal advice made to Monsanto attorneys. The persons to whom this advice was given or who requested the advice was the person who made the decision or was in such an advisory role that the decision would not be made without that person's advice or opinion. These documents are therefore privileged from discovery under Supreme Court Rule 201(a)(2) and Consolidation Coal. COBURN, CROFT & PUTZELL X^nneth R. Heir^man Bruce D. Ryder/ 312 South Illinois Street Belleville, Illinois 62220 (618) 277-1020 Attorneys for Defendant Monsanto Company 25 ) CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate copy of the foregoing was hand-delivered this day of July, 1985, to the following attorneys of record: Mr. Rex Carr Mr. Jerome Seigfreid 109 S.High Street Belleville, Illinois 62221 --- 4 / IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY/ ILLINOIS ORDER Defendant Monsanto# pursuant to order# has subs!ttad numerous documanta to this court for in camara inspection assarting attorney-client and work product privileges. Attar review of all submitted documents the argument and authorities in defendants' memoranda and its own research# this court rules as follows: Number C22830-34 C22835-6 C22837-8 C22839-80 02*11881 C22Q82-91 022892*4 GROUP I Produce C22836 C22846-80 X C22893-4 EXHIBIT G Not Produce X C22835 X C22839-45 X C22892 Number C22895-928 C22938-41 C22942-46 C22947-56 C22957 _ C22958-59 C22960-62 C22963-71 C22972-23062 C23063- C23066-79 C23080-87 C23088-97 C23098-112 C23113-14 C23115-140 C23141-44 C23145-51 ' C23152-59 C23160-62 C23163-4 C23165-6 C23167-79 Produce X C22961-2 G22964-71 X C23064-5 X C23089-97 C23114 C23170-79 Not Produce X X X X X C22960 C22963 C23063 X C23088 .X C23113 X X X X X X X C23167-69 Number C23180-85 C23186-87 C23188-9 C23190-204 C23205-23224 C23225 C23479 C23480-84 C23485 C23486-90 C23710-78 C23779-8X Number C23682 C23783-86 C23787 C23789-91 C23792-94 C23795 C23799 C23800-12 Produce C23181-85 X C23200-204 X Not Produce C23180 X C23190-199 X X X X X X X GROUP II Produce X X X X .X (except first p ' Not Produce X X ^ph) X Number C23813-X5 C23816-17 C23818-23 C23824-26 C23827--34 C23835 C23836-49 C23850-51 C23852-3 C23854-5 C23856-7 C23858 C23859-60 C23861-2 C23863-4 C23226-23478 C13714-13897 r?3865-68 C t 869-933 61-3934 *936 -37 23933 - H Y 023497-6^*7 C23690-709 Produce Not Produce X X X C23824-5 C23826 X X X X X produce/ first paragraphs X X X X X X X X \ C23866-8 C2386 T X firs' j>av***^/r0iphs X X X X Number C23952-58 C09617-27 C23959-71 C23972-81 Number C23982-7 C23988-46 C22929-37 C24047-55 C24056 C24057-63 C24064-66 C24067-72 C24073-76 C24077-83 C24084-65 C24086-88 C24089-90 C24091-94 C24095-101 GROUP III Produce Not Produce X X (except C09624 and first 8 lines of C0963) X (except C23968 from V to end of V on C23969) X (except IY on C23980-1) GROUP IV Produce Not Produce X X X X X X X X X X X X X X X Number C24102-107 C24108 C24109-23 C24124-32 C24133 C24134-61 C24162-6Q C23491-93 C24172-83 C24184-89 C24i90-91 C24200-202 Number C24280-338 C24339-43 C24344-89 C24490-585 C24586-98 ` C24599-623 C24624-28 C24629-42 GROUP IV Produce I Not Produce X X X X X X X X X X X X GROUP V Produce Not Produce X X X X (exceptC24554-76) X X X X Number C24643-44 C24645-50 C24651-76 C24677-98 C24699-703 C24704-8 Number C24709-16 C24717-68 C24769-71* C24772-75 C24776-83 C24784-7 C24788-90 C24791 C24792-25020 C25021-23 C25024-25 C25026-30 GROUP V Produce Not Produce X X X X X X (except C24706 last half-6 lines of C24707) GROUP VI Produce C24720-68 C2470-71 X X X X X X C25027-30 Not Produce X C24717-19 C24769 X X . X C25023 Number C25031 C25032 C25033-36 C25037-38 C25039-55 C25056-58 C25059-67 C25068-74 C25075-7 C25078-89 C25089-90 C25091 C24169-71 C25417-22 Number C25092-4 C25095-97 C25098 C25099 C25100 GROUP VI Produce C25058 C25061-67 X GROUP VII Produce Not Produce X X X X X C25056-7 C25059-60 X X X X X X Not Produce X X X X X Number C251011. C25102-116 C25117-25 C25126-32 C25133-49 C25150-51 C25152 C25160-65 C25166-69 C25170-3 C25174-5 C25176 C25177-78 C25179-82 C25183-90 C25191-208 C25209-21 Number C25222-32 C25233-38 C25239-44 - "\ GROUP VII Produce C25111-16 X GROUP VIII Produce C25241-4 Not Produce X C25102-1O X X X X X X X X X X X X X X Not Produce X x C25239-40 r-. Number C25245-77 C25278 C25279-82 C25263-85 C25286-71 C25372-4 Number C25375 C25376-7 C25378-9 C25380-5 C25386-94 C25395 C25396-99 C25400-02 C25403-5 C25406-11 C25412-13 C25414-16 C16651-62 GROUP Vili Produce X GROUP IX Produce X X X X Not Produce X X X X X Not Produce X x X X X X X X X Number C25423 C16666-78 C16663-65 GROUP IX Produce X X Not Produce X C21360-C22231 X Number Produce Not Produce C24203-04 X C24205--09 X C24210-32 X C24233-48 X C24249 X C24250-58 X C24259-69 X C24270-79 X The documents ruled discoverable shall be produced instanter. RICHARD' P.' GOCDENHERSH CIRCUIT JUDGE - 11- r 1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT 07 ILLINOIS 2 ST, CLAIR COUNTY 3 4 FRANCES E. KENNER, et a l . , ) ) 5 Plaintiffs ) 6 v. ) ) CAUSE NO. 80-L-970 ) 7 MONSANTO COMPANY, ) 8 Defendant. ) ) 9 10 REPORT OF PROCEEDINGS li Before the HONORABLE RICHARD ?. GOLDENHERSH 12 Testimony of Mr. John McPhilllps 13 August 6, 1985 14 IS 16 APPEARANCES: 17 MR. REX CARR, Attorney at Law, and MR. JEROME SEIGFREID, Attorney .at Lav, 18 On behalf of the Plaintiffs; 19 MR. JOHN MUSGRAVE, Attorney at law, MR. JOSEPH NASSIF, Attorney at Lav, and 20 MR. KENNETH HEINEMAN, Attorney at Law, On behalf of the Defendant. 21 22 23 PATRICIA A. GANDY. OSR, RPR 24 Official Court'Reporter EXHIBIT H A*/.V. >>JiY ^f'VVj*p''..T'W -V.: 1 (At this time Court vas In recess and the 2 following proceedings were held In chambers.) 3 THE COURT: Did you bring a copy of that proposed t 4 protective order and the one that13 in force? 5 MR. HE1NEMAN: Yes. 6 THE COURT: I wanted to look that over before we went 7 into that. 8 MR. HEIilEMAH: Hare is the proposed one which a motion 9 was filed on May the 5th, and here is the existing one that was 10 entered very early on in the case. 11 THE COURT: And is still in force. In paragraph 5 of 12 this proposed protective order, at the conclusion of that 13 action I would assume and I would state on the record that I an 14 assuming that that includes appeals of this action, if that's IS not what you intend, 1 would insist that that be in there. 16 MR. HEINEMAN: I would think so, Judge. 17 THE COURT: Do you have any objection to this proposed 18 protective order? 19 MR. CARR: I didn't know it was going to come up 20 today. I d o n 't have any copies with m e , and I haven't thought 21 about It. I haven't seen It recently, I thought we were Just 22 going to do sonething about the-- this is the one that's in 23 effect and thio is the one we want -- 24 THE 'lOURT: In addition. 1 'MR. CARR: In addition to that one. Judge, I don't agre e 2 to any part of It. I see no reason to, because this would 3 effectively limit our use of this discovered material in other 4 cases that ve have. It would require us to go through the same 5 work to get this material, and I don't know anything In the law 6 that says something that they have called work product is entitl 7 to any privilege. This Court has said In effect that it's not #8 entitled to any work product privilege, that It doesn't fall 9 within that category of material that's subject to the work 10 product protection, and It is ordered that it be given to us, an 11 I see absolutely no reason or justification for any document 12 that the Court says that we can have can be considered confident 13 As I understand it, that there is something relevant in any of 14 these documents, we, of course, can use It In the trial of this IS case,simply because ve don't consider it relevant doesn't mean 16 that it's not something that we can use. We have cooperated 17 with other lawyers who have dioxin cases They've shared 18 information with us and we've shared with them, and I Just eee 19 nothing in the law,.I don't know any possible law that would 20 entitle them to this kind of protection. Why should they be in 21 a different position than other parties? 22 THE COURT: Do you have anything yotf wish to say? 23 MR. HEINEMAN: Well, your Honor, first of all with 24 respect to there already is an order of this Court in existence A 1 with respect to any information in this case that's been turned 2 over to Mr. Carr which has been stamped confidential. 3 MR. CARR: Let me interrupt one moment That dealt 4 with trade secrete, commercial information, confidential research 5 and anything, and that's been my understanding from the beginning 6 that that was an order to protect trade secrets. Simply because 7 you have stamped these things "Confidential", I have not 8 considered them unless something comes close to trade secret. 9 I will be frank with you, I have not considered any of these 10 things in any way confidential because you've stamped everything. 11 There isn't a document that you have given U3 that hasn't been 12 stamped "Confidential, subject to protective order," and by 13 your use of it, it is meaningless to m e . And I will be frank, 14 I have not made the least attempt to comply with this order of IS *83 that dealt with, and it was my understanding at the time 16 that you got the order on trade secret and confidential research 17 development and commercial information, and I have looked at 18 it only from that viewpoint, and that's been my understanding. 19 1 will be frank to adnit, I'm right now in contempt of this 20 order because I have not understood that I, have been kept from 21 using this information and exchanging this information with 22 other attorneys, and I have. Anything that looked like it 23 might be in the nature of a trade secret or confidential 24 research, totally different. But this order that was entered N I April of '83 was prior to the time they started supplying 2 these documents,' and I wouldn't object to that kind of order 3 than because they are entitled to trade secret protection and 4 I vouldn* t give it away. But, your Honor, they have stamped 5 everything "Confidential1* and subject to protective order, and 6 X simply have not been obedient to this order because of that 7 reason. 8 MR. H2INEMAN: Have you turned over any documents to 9 somebody else chat even appeared to you that they might relate 10 to confidential information or trade secret? II MR. CARR: No trade secret has been turned over to 12 anybody. I haven't seen anything that could be considered a 13 trade secret that you have given us. There hasn't been anythin? 14 that I have discussed with Paul Pratt on a number of occasions, 15 documents that we have that ve've used and we've traded document 3 16 with him. I can't tell you specifically that I gave a single 17 document as such to Paul Pratt, but I would be very surprised 18 if I have not. I know I've disclosed to him plenty-of times 19 information that I have received from you, and I 3ay every 20 single document you've given us has letters that you have sent 21 out to other people, and every document you've given us has got 22 that stamp on it. You haven't used it with any discretion at 23 all. And so for that reason, I just ignore it because it is 24 meaningless to me. I would have, to sit down and analyze each document, is this really a trade secret. As you know, you've 1 supplied thousands and thousands and thousands of pages of 2 documents to us, and no matter what the document, you've 3 stamped it trade secret, you've stamped it "Confidential, 4 subject to protective order," and it's been meaningless to me. 5 But to directly answer your question, 1 don't have any * 6 specific reference in my mind that I have given a document to 7 either Pratt or to Stu Caldwell. But 1 know, when I vent S on vacation I told Caldwell to come In and help himself to 9 my files that dealt with that particular aspect. He didn't 10 11 come in, but I'm telling you that that's the way I've used 12 your order, your stamp, because of that. And I read that to mean trade secrets. And this current order you're trying to broaden 13 it to include what you now call work product, and that's-- 14 THE COURT: We're getting off on a tangent. Do you IS 16 have any reply you want to make as to this proposed protective order? 17 HR. HEIHEKAN: I d o , .your Honor. Clearly, what Is 18 discoverable in a particular case from a particular party varies 19 according to the law of the jurisdiction the one happens to be 20 21 in. Clearly under Federal law, and in the case in which Mr. | Caldwell ia involved against Monsanto and in the cases in which 22 23 others are involved against Monsanto in the agent orange 24 litigation that is still pending in*Federal courts, the standard! 1 are quite different, and it is clearly unfair to Monsanto Company 2 to have people, litigants, their attorneys, be able to get 3 outside the Judicial process in which they're involved information 4 that the Court which is administering that lawsuit would not 5 permit them to have. T h a t 's clearly not fair. 6 THE COURT: Okay, I've got two questions. Well, now, 7 wait a second. Doesn't that put you in the position of deternin:.i 8 what's privileged in Federal proceedings? 9 MR. HEINEMAN: No, what I am saying la that in that 10 litigation, that Court will decide through in camera proceedings 11 what Is discoverable and what Is not. In this situation you havtt 12 decided what is discoverable and what is not, all right. We 13 turn over documents in this litigation that you have determined 14 are discoverable, even though the standards for that discoverable IS are quite different in other jurisdictions, all right? 16 THE COURT: Right. 17 MR. HEINEMAN: Now our position ia we obey this Court's 18 order. We turn over the documents to this litigant for use in 19 this litigation and no other and let the other litigant and his 20 attorneys get whatever they're permitted to get in the Court in 21 which they're bringing their lawsuit. That's the patent unfairm 22 of it, and that's what we're trying to avoid. 23 MR. CARR: Well, I'm not familiar with any part of the 24 discovery rules that give you the. right to make conditions on f 1 four production- When you produce it to me, unless it la a 2 trade secret, you are entitled to protection of your trade secrets 3 sut there is nothing else in any lav of discovery that I have 4 seen anywhere that gives you the right to say vhat I can do with 5 material that you have produced to me under order of Court. I 6 lave the right to decide that, not you. The Court says it is 7 cxot protected information. It is not protected information that 8 fou have to give It to me. Mow-- 9 TEE COURT: Okay, now, two things, I'm going to deny your 10 notion for protective order for two reasons. Humber one, by the II ardor, you have this Court allowing you to determine vhat is 12 federal work product and subject to a protective order. This is 13 a State circuit court. We deal with Federal substantive statutes 14 tfe have no business making that kind of determination, which is IS properly something to be dona by the United States District Court 16 rhere are different standards. They are different courts, they 17 are different systems, and I have no business making that'kind 18 of determination. I have no business delegating to you the power 19 by your own determination to make that determination. Number twc 20 you're basically by this protective order putting yourself in 21 the position of saying we have asserted this privilege in this 22 Court. You have denied it because you have ordered, because the 23 Court has ordered that it be disclosed, you have asserted that 24 privilege in this proceeding as far as discoverability of these I materials In those Instances vhere I have ordered those materials 2 be turned over. It has obviously been denied. And now this 3 protective order would allow you to relable it that way, even 4 when it has been denied as part of the order turning It over, 5 which I don't think makes any sense at all. Basically, it'e 6 been denied as far as not being discoverable In the State of 7 Illinois, and I am not about to delegate to you the power to 8 make any determination or make the determination myself as to 9 whether It Is or Is not work product under the Federal rules. 10 Obviously I've, In my review of authorities and materials, 1 11 have some witness as to what that standard Is and everything, bu : 12 I'm not about to make that kind of determination. I don* t think 13 It Is proper for me to make It. 14 MR. EEIHEMAN: Your Honor-- 15 THE COURT: Walt a second. It is not proper for me to 16 delegate to you the power to make that kind of determination, so 17 I think because of both of those reasons I am going to deny 18 entry of the proposed protective order. I Just don't, think that 19 it's something that should be entered by this Court. 20 N o w , you have some questions as far as-- 21 MR. HEINEMAN: May I address myself to that Issue a 22 little further, Judge? I'm suggesting respectfully to the Court 23 that you're misapprehending what it is that ve would be able to 24 do with this order. We are not saying that another court can or 1 I cannot allow discovery of this material, all we're asking this 2 Court to do is to permit that Court to exercise ito jurisdiction 3 and prevent discovery In that case of something that that Court 4 deems a litigant in that case Is not entitled to have. 5 TEE COURT: Halt a second. By denying this, I don't 6 either help or prevent it. There Is absolutely nothing in 7 anything that I have done that prevents you from going Into the 8 Federal District Court In Charleston or any place else that you % 9 have litigation pending and asking that that Court prevent any 10 kind of discovery of anything that has been ruled discoverable 11 here. It Is not within my Jurisdiction to determine what either 12 the discovery rules in the Stats of Missouri for example, or the 13 United States District Court should or should r.ot be. And I 14 have not, as far as you being a party in front of me under my IS jurisdiction. I have not in any vay tried to prevent you from 16 going Into any of those courts and getting that kind of order. 17 What I am preventing you from doing is taking it upon yourself t 18 or giving to me the position of labeling what would or would not 19 be discoverable either in the U.S. District Court or in a sister 20 state's court. But I 'm not preventing you from getting any kind 21 of order in either any of these other states or in the U.S. 22 District Court. 23 MR. HEI1IEMAN: But Judge, If a litigant in that Court 24 already has the document or let's say I t 's prohibited from his I discovery in that court and he cones to Mr, Carr and gets It 2 because Mr. Carr gives him a copy of it, because this Court said 3 it was discoverable and then usee it In that litigation. 4 THE COURT: You're going to have to go to that other S Court and either prevent them from getting it or prevent them 6 from using it. X don't think that any kind of limitatioin that 7 you are asking me for in that order is vhat you are aiming at vo 8 do that effectively and it really does delegate that power to 9 make that determination to either me or to you, and neither one 10 of us should be making that. You can assert it if you wa n t , but 11 you can't assert it in this form. You assert it somewhere else. 12 I understand what you are saying, but this is not the place in 13 which to address it* Neither one of us have the, should be in 14 the position of determining what is Federal work product in this IS Court in the State circuit court. % 16 You had some questions as far as some discovery that 17 was ordered, is that correct? 18 MR, NASSIF: We had some other issues we wanted to 19 raise 20 MR. HEINEMAN: About discovery that was ordered? 21 MR. NASSIF: Yeah, we had, veil, your Honor, we have 22 to in terms of producing this information, ve have counsel in 23 agent orange and in the Nitro case, ve are reviewing with them 24 the documents you've ordered us to produce, and that's going on ] 1 right now And, you see vhat 1 mean now? 2 HR. HEINEKAN: All right, 1 wasn't sure what you had In 3 mind. Ve are In the process of clearing these documents with 4 the attorneys In those other lawsuits. Once we do that, obvious JO 5 the client has to make a decision as to what It's going to do In 6 connection with this Court's order in terms of soma appellate 7 procedure or something of that sort, and therefore that's vhat 8 we're waiting for now, and X just wanted to inform the Court 9 that that process is going on and we're going to be told-- 10 THE COURT: Veil, I was given to understand that the II reason that this hearing In the middle of trial time was being 12 asked for now was that so these matters could be cleared up and 13 it could all be produced by four o'clock this afternoon. 14 HR. NASSIF: One of the matters that needs to be 15 cleared up, and I will address that because I discussed that wit 16 you, Judge, was the getting back and informing counsel promptly 17 as to vhat the Court's position on the protective order was 18 going to be, which I think is going to be a fairly critical, 19 maybe, may not be, but could be a critical element in our 20 decision on that, and we're going to communicate that right now 21 so that Information can be communicated back right away, and I 22 think that's why we needed to talk to you at this point so we 23 could do that, and that decision could be made consistent with 24 the four o'clock deadline. t\ ^ A 1 THE COURT: One othe thing, I assumed that it's obvious, 2 but maybe even If it's obvious, It should be stated on the record 3 that that other protective order does apply to anything that's 4 produced under this discovery order. I think that vould be 5 obvious, but it's probably bast said and not left unsaid. 6 * MR. HEINEMAN: The first one. 7 THE COURT: The first one that I entered. .8 MR. HEINEMAN: In 1983? 9 THE COURT: I assumed, and maybe I should have stated 10 It for the record, but everything I produced vould be subject II to that. Nov, is there anything else that has to be cleared up? 12 MR. HEINEMAN: Yes, sir, I think there io. 13 THE COURT: Oh, I would also remind you that lnstanter 14 in the order meant lnstanter. IS MR. HEINEMAN: What ve were going to do vas request 16 the Court for 24 hours, I guess, In vhlch to seek some sort of 17 appellate review of this Court's order to turn this over, if 18 It is necessary, based upon our clearing the document's vlth 19 the counsel In the other cases. 20 THE COURT: I'm going to deny that out of hand. These 21 materials were produced under prior orders of this Court for 22 months if not years. I mean as far as compliance with discovery 23 order of this Court, ve're way past the time of giving delays. 24 The only reason that I didn't say to turn It over an hour after / u- I I Issued the order vas because of the volume of the documents. 2 I said Instenter, I meant instanter. I t 1s all overdue as far 3 as I'm concerned, and as far as this turning It over, the volume 4 of the materials that were turned over to me should have been 5 turned over months If not a year or so before they were turned 6 over to me under the existent discovery orders of this Court. 7 I am obviously not worried about appellate review of any of my 8 decisions. I assume that everything In this case Is going up 9 on appellate review and will be reviewed by the appellate courts 10 of this State. I am not going to allow your request and build II In further delay in this process that is months, If not years 12 overdue. So the answer is no. 13 MR. CARR: Tour Honor, I'd like to make a motion with 14 respect to this order that, of April the 6th, 1983, this-protectL 15 order I would like to move for permission from this Court to 16 keep In my posession any and all documents that have thus far 17 been produced to me and to be given leave to not be bound by any 18 terms of confidentiality for the reason that all of the documents 19 that have been produced to me do not In fact constitute trade i 20 secrets, confidential research, development, or commercial 21 Information and I want leave because of the fact that none of 22 these documents constitutes such trade secrets. I want relief 23 from this order and permission to keep the material at the 24 conclusion of this case and to have the right to disseminate ; v , *!% . C* / I that Information In the free exchange of Information has been In 2 existence In the products liability field litigation amongst all 3 attorneys who deal in that area, so as to continue the right 4 of attorneys to obtain justice for their clients because there 5 are, there is nothing in the rules or in the lav that, as I 6 understand It, to allov a litigant to have protection where the 7 material Is not a trade secret or confidential, and there Is 8 nothing been given to me that constitutes that. 9 Nov, If Monsanto, I'll say that I will not give that 10 information to others immediately. I haven't. Inasmuch as I 11 know I haven't given a physical document to anybody, although 12 I may have given the contents or the gist of the document to 13 people, but I'll not do that if Monsanto represents to me, 14 assuming the Court gives me relief from this, gives me permission 15 to do that, if there is. in fact something that they've given me 16 that really does constitute a trade secret, and I am not, and 17 I haven't recognized it as such, I'll certainly be willing to 18 reargue that point or to argue that particular document with 19 counsel before the Court, But I don't see anything that's been 20 given me to date to meet the standard of trade secret or 21 commercial. 22 THE COURT: You're saying in effect under Paragraph 3 23 you're challenging all the designations of trade secret? 24 MR. CARR: I'm moving that I be allowed to keep, they're -V-'' / V I saying that I have to bring up the document that I want to use 2 or to keep or to disaeminatet I'm saying all the documents that 3 I have been given. I vant that leave, because none of those 4 constitute trade secrets, l*m willing to argue and litigate 5 that point with counsel now so that I can be relieved of this 6 order because of their Indiscriminate use. 7 THE COURT: Let me make a suggestion on that motion. 8 Elr3t of all, the way I read Paragraph 6 V you're allowed to 9 keep it through the end of the appellate process, anything 10 that's been produced in this case. If Monsanto has anything II that they want to designate as trade secrets, any reason why, 12 and taking my suggestion really from the Supreme Court r.ules 13 as to consultation between clients, I would suggest between the 14 two of you that you have a meeting among yourselves as to anythin 15 that Monsanto would wish to designate as trade secrets and exple 16 in a conference between the two of you off the record as to why 17 it is a trade secret for Monsanto's protection of what they wish 18 to so designate. If the two of you can work out an agreement 19 among yourselves as to any materials, I'm sure I will be 20 inclined to go along. If there is still materials In dispute,21 we will have an argument on that on the record. But In the 22 spirit of the rules, as far as contact between counsel to 23 rosolve discovery problems and for the protection of anything 24 that Monsanto upon reconsideration nay consider a trade secret, I I'd like that to be done, and if there Is still an open dispute 2 aa to any or all of the materials, I would be happy to hear youi 3 arguments. 4 MR* CARR: Plaintiff agrees that that would be agreeable. 5 THE COURT: Agreeable to defendants? And I will just pit 6 the motion in abeyance* As to the first part, you are allowed 7 to keep it* Any problem with having that consultation before I 8 hear any more on it, so you don't have to put what you consider 9 a trade secret on the record. 10 MR. HEIHEMAN: I have no problem in a consultation with 11 respect to what's trade secret and what isn't. I obviously, 12 based upon what Mr. Carr has .said to this point, believe there 13 is going to be considerable disagreement among us as to what is 14 and is not. And I don't know that it's going to end up saving 15 the Court a lot of time, but hopefully it will. 16 THE COURT: I realize it may not save me an ounce of 17 time, but I'd like to have it tried that way. I think the rules 18 so indicate that that should be.tried first. 19 MR. NASSIR: Your Honor, would it be possible on the 20. in camera documents for you to give us a period of time for vhicn 21 we can go to the courts in Charleston and New York before 22 M r . Carr shares these documents with the individuals he's 23 mentioned that he is sharing Information with so we can seek 24 orders from them before the documents are in fact disclosed to 1 counsel in other cases against Monsanto Company, and in the 2 meantime give the documents to Mr. Carr so they are not held 3 and if we should proceed to go ahead and if the stopping point 4 ia the other litigation, disclosure to the counsels in other 5 litigation, could you give us some period of time, even though 6 ve might disclose the documents to Mr. Carr which would not 7 delay this proceeding but give us some period of time in which 8 ve can go to these other jurisdictions and request some aort of 9 order on those documents? 10 MR. CARR: I would object to that, your Honor, because 11 that allows their action in another court to control what this 12 Court believes ia right and proper, but I will tell this, that 13 I have no current plans, nor any current requests from anybody 14 relative to any of your documents and I don't intent to rush IS out and give these documents to anybody It's 16 there's no exigent reason to do that, and Z will represent to 17 you that X will not give the documents to anyone in the near 18 future. But I certainly don't want this Court entering an 19 order dependent upon some other court's action. 20 MR. NASSIF: Tour Honor, I would suggest that if you 21 are unwilling to give us just a period of time, and when M r . Car 22 says not give it away, if he lets somebody sit and read it, 23 that is almost as bad as giving it a w a y . 24 MR. CARR: I won't let anybody sit and read it. I'm r\ I telling you in good faith, there Iis no reason for me to disclose 2 Ho one has ever aslced me for any secret In camera documents, 3 all right, and I haven't given those in camera documents to 4 anybody. No one's seen them except Jerry and I. What I am 5 telling you la that I see no urgency about this situation, and 6 I am not, and 1 am representing as an officer of this Court 7 that I am not going to rush out and aand to somebody this 8 document as far as I'm concerned. If you vant to go to some 9 other court, you will have ample time to do so, but I will be 10 opposed to this Court entering an ordar on me as to vhat I can 11 or cannot do with this material. Thla Court cannot be controlle 12 by your actions in another court. 13 MR. NASSIP: Your Honor, wa are not aalting this Court 14 to be controlled by our actions in another court. We're simply IS asking this Court to give us time to approach the other courts. 16 THE COURT: It sounds like you have that by agreement, 17 8018 MR. NASSIF: Well, can 1 have a definition of-- 19 THE COURT: On the basis of my reasons for not entering 20 your original protective order, I would rather not enter an 21 order such as that. Apparently by agreement you are achieving 22 the same effect anyway, so-- 23 MR. CARR: I will agree not to divulge any of this 24 in camera material to anyone for at least a period of 30 days, ' J * *V ., v ' i -:***,*.. ( 1 and If you Indicate that you arc in the process of Retting some 2 order in another place, I fm not going to try to skirt the effect 3 of another court, I respect all of the courts, and I am not 4 going to play dirty pool with another court. If you have an 5 order waiting there, I'm not going to rush out and give it to 6 somebody. So if 30 daya is not adequate, you coma back and 7 If X feel that in some vay or another that I will be betraying 8 the lawyer on the other side by waiting any longer, I'll take 9 it up by this Court and tell the Court and you, hey, this is 10 dynamite stuff. Once I see it and I Just in good faith cannot 11 keepthis from these other lawyers, it willbe condemning them 12 to some horrible fate if I do, I'll let you know if that cornea 13 up. And this Court knows -- 14 MR. NASSIF: After the 30 days? `' . IS MR. CARR: No, I'm giving you the 30 days. I agree to 16 the 30 days, but in that period of time I should find some 17 urgent reason to disclose, I will bring it up to the Court now. 18 MR. SEIGFREID: Since you have chosen to ignore me in it, 19 I assume you want me to be bound also by this? 20 MR. NASSIF: Your Honor, my request was that you bind 21 both. 22 MR. HEINEMAN: I was .addressed to counsel, and I don't 23 think that's what you have done all the way through. 24 MR. CARR: Jerry, why didn't you be quiet? 1 HR* NASSIF: Your Honor, would you please extend my 2 motion to both counsel, and I assume that It Is still denied? 3 THE COURT: 1 think the agreement gives you what you 4 vent* I am not Inclined to rule on this lasue. I'm really not. 5 I think It's something that, again. It Is the same type of thing 6 as that protective motion, and I don't think that I should be / 7 making that kind of ruling. 8 You had something else? 9 MR. HEIHEMAN: I have one more Item that my good friend 10 and colleague James Craven has asked to bring to the Court's 11 attention. I am given to understand from Mr. Carr that either 12 today or early tomorrow he Intends to rest his case. 13 MR. CARR: It won't be today, that's for usre. 14 MR. HEINEMAN: I apologize, Jerry, I really don't mean IS to do that, I really don't, and I apologize. I understand that 16 both counsel for the Plaintiffs intend to rest their case 17 within the very near future. Mr. Craven is presently along with 18 other attorneys In our office working on our motion for a 19 directed verdict at the close of the Plaintiff's case. We 20 intend that to be a very serious presentation with a good deal 21 of case law related to it. I have been requested by Judge 22 Craven to ask the Court for a couple of days off between the 23 ending of Mr. Carr's case and the beginning of ours for the 24 purpose of presentation of our motion for directed verdict and f IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et al., Plaintiffs, v. MONSANTO COMPANY, Defendant. ) ) ) ) ) ) ) ) ) No.80-L-970 DEFENDANT MONSANTO COMPANY'S MOTION TO RECONSIDER MOTION FOR PROTECTIVE ORDER COMES NOW Defendant Monsanto Company and moves that this Court reconsider Monsanto's Motion for Protective Order with respect to privileged documents produced pursuant to this Court's Order of August 5, 1985, and in support hereof states as follows: 1. On August 6, 1985, pursuant to this Court's Order of August 5, 1985, Monsanto produced to Plaintiffs certain documents previously produced to the Court for in camera review. On that date, the Court indicated it would deny Monsanto's Motion for Protective Order with respect to said documents but then refused to rule on the issue. (Tr. p. 137 & p. 150). 2. The Court stated that its action would avoid preemption of the determination by a Federal court or another state court of whether these documents are protected by the Federal or state attorney-client privilege or work product immunity. 3. Monsanto respectfully suggests that such result has an effect opposite that intended by the Court, as unrestricted possession of said documents by Plaintiffs would EXHIBIT 2 permit Plaintiffs to disclose said documents to any person for use in connection with any pending or future litigation against Monsanto, without permitting Monsanto to assert its privileges in the court in which such litigation is or will be pending. 4. No Federal court or other state court can determine the existence of any privilege with respect to said documents at this time, as a motion to determine such privilege in the absence of an outstanding request for production covering the subject matter of said documents would seek an advisory opinion, which is forbidden by the United States Constitution, Article III. 5. Supreme Court Rule 201(c) authorizes protective orders , limiting, conditioning, or regulating discovery whenever & appropriate to prevent unreasonable disadvantage or oppression. 6. Monsanto respectfully suggests that the only way to accomplish the Court's stated objectives of permitting the Federal courts to determine the application of any Federal privileges to - said documents is to enter a protective order in the form attached hereto so that, in the event Monsanto receives a request for production in another case covering the subject matter of any of said documents, Monsanto may assert such privileges for determination by the court before which that case is pending. WHEREFORE, Defendant Monsanto Company prays that this Court reconsider Monsanto's Motion for Protective Order and, after reconsideration, enter a Protective Order in the form attached hereto -2- it * ' COBURN, CROFT & PUT2ELL Bruce D . Ryder 312 S . Illinois Street Belleville, Illinois 62220 (618) 277-1020 Attorneys for Defendant Monsanto Company CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing was hand-delivered this day of August, T- 1985, to the following attorneys of record: M r . Rex Carr Mr, Jerome Seigfreid 109 S, High Street Belleville, Illinois 62220 c IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, et al., Plaintiffs, v. MONSANTO COMPANY, Defendant. ) ) ) ) ) No. 80-L-970 ) ) ) ) PROTECTIVE ORDER Upon the Motion of Defendant Monsanto Company, the Court having been advised in the premises, it is hereby ORDERED t as follows : 1. Whereas this Court's discovery orders in the above- entitled cause have required Monsanto Company to disclose certain documents prepared in anticipation of litigation in other cases pending against it which may not be subject to discovery in those cases, the Court finds that Monsanto Company is entitled to a protective order restricting the use of such information to this" litigation. 2. Monsanto Company may designate as work product material subject to this protective order any document produced to Plaintiffs on August 6, 1985, or any other document which this Court may require to be produced which was prepared in anticipation of litigation in other cases. Such designation may be made by identifying such documents by number in a memorandum filed in this case and served on Plaintiffs, marking documents supplied to Plaintiffs with the notation "Work Product - Subject to Protective Order", or by any other means which reasonably informs Plaintiffs that the documents are subject to the terms of this Order. 3. All material subject to this Order is to be given to counsel for Plaintiffs, and the contents thereof shall be shown or disclosed only to the individual Plaintiffs and to no other persons. Said material is to be used only for purposes of this case and for no other purpose. 4. Upon the request of Monsanto Company made at the conclusion of this action, all documents subject to this Order . (including copies thereof and extracts therefrom) shall promptly be returned to Monsanto Company. 5. In the event that Plaintiffs desire to dispute Monsanto Company's designation of any document as subject to this Protective Order, Plaintiffs shall abide by the terms of this Order respecting the confidentiality of same unless or until the Court finds, upon motion duly made and presented, that said document was incorrectly designated as work product information. ENTERED this______ day of____________, 1985. Judge 1 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 11Ij August 21, 1985 12 13 Before the HONORABLE RICHARD P. GOLDENHERSH, Circuit Judge 14 IS 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 EXHIBIT J r I to do. I'm not going to rule now, 11 right. Okay. 2 -NR, CRAVEN:' Now may X go to the protective order? 3 THE COURT: Sure. Sure. ,Okay. 4 NR. CRAVEN: As X 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 this was soon after you 8 turned over son of the documents you had exmlnaed in camera.. 9 THE COURT: I ordered that they be turned over. 10 HR. CRAVEN: You ordered that they be turned over. 11 Then there was an order for the protective order- There was 12 some discussion.' You indicated on the record that you were 13 going to deny the motion for the protective order, 14 THE COURT: I did. 15 HR. CRAVEN:* Later in the transcript Hr. 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 X ruled that I wa3 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 me, bacauso I dofinitely ruled and did not vacate r 1 my ruling that I was not going to sign that protective order. 2 If there was an Indication from ms that4I wasn't ruling on 3 oomething, it was on something else. 4 MR. CRAVEN: 1 may ba misreading the transcript. 5 3ut at page 150 of 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 some 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 11 colloquy or not. Jerry was feeling left out ana Rex was 12 naid at him for getting -- moving in. 13 SIR. CARR: That will be the day. 14 MR. CRAVE&: And then Mr. 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, i?s lathis language. I think the 18 agreement gives you ;what you want. I `am not inclined to rule 19 on this issue. 20 THE COURT: Okay. I think there Is some ambiguity 21 there, and what X 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 MR.CARR: That was my 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 wc could go forward end seek protectio 6 and the Judge-- 7 THE COURT: That'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 COURT: Thank you. I remember that now. that 14 you said 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 see where that ambigiity 21 came about. 22 MR. CRAVEN: assuming new that it i3 a denial of 23 the protective order. We are now here again on a Motion 24 again to reconsider that. Also in reading this, and 1 guess  1 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 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 counsel in New York, because that would effectively be 13 this Court making a decision for the New York Court, which 14 I rm sure the Court doesn't want to do.' Now this Court has 15 decided that Mr. 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 we'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 he's willing to use itand give it to those 22 23 people, but he lias given us a 30 day period. We're saying 24 he's not entitled to do that. We are saying that this Court shouldn't make a decision for the federal courts of New York 1 and West Virginia. Judge, we had this kind of a question in 2 reverse in the Clark Vi, 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 S 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 what 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: Okay. 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 c whether it was or was not properly turned 18 over. It's a debatable-, issue. But we*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 end bartering this material.with o ther 22 counsel. We are asking this Court for aprotective order, 23 enjoining Hr. Carr from making that kind of use of it. Now 24 we are not asking that you exercise extra-teritorial jurlsdic- 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 be put on that burden* 4 THE COURT: Weil, can't you get an order in New 5 York barring counsel thorn from getting it frcm Carr? 6 MR. GRAVEN: No, sir* 7 THE COURT: You 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 someplace 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. New let New York and West Virginia decide it 16 on the basis of the New York and West Virginia law, or the 17 federal rules, and we have an additional problem, Judge. 18 Soma of the material that you ordered turned over was for all 19 practical purposes in our,vtew the sans with reference to the 20 scope of privilege as some of the material you denied a 21 turn over. We see no discernible difference in the material. 22 Wejthink 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 .o 1 what motive does Mr. 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. Blit w e 're using discovery not for cat 5 and mouse games. ,X believe that w e '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 -- 1 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. CRAVEN: 1 suppose the Supreme Court is getting 15 tired of hearing abcut~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 visory, order because we think just very clearly in the 19 absense.of a further agreement by Mr. Carr or protective 20 order here 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 we won't do it for them and moot the 23 issue. 24 THE COURT: You're telling me that a New York or 1 West Virginia or federal court cannot tell one of the counsel 2 that appears in front of it in a case at issue that they are 3 not allowed to get by other means what that court has said 4 they are not entitled to have in their particular litigation? 5 MR. CHAVENi I don't [know. know this, I knew 6 that this Court has ;jurisdiction to tell Mr. Carr that you 7 gave it to him to use in this litigation, and you didn'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 don't have 10 to worry about what New York might or might not do. We're 11 here, we have Mr. Carr here, and I don't doubt that he would 12 abide by this Court's dcision and this Court's order,' and 13 I don?t believe that this court said that if this court 14 said give it to Mr. Carr to barter -- * X don't believe that IS this 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 of material as to what the scope of discovery in 20 this case is, over 700,' 000 4 documents, hundreds of thousands 21 of dollars of just divulging material, under precedent as far 22 as I can tell, with maybe MCI/aTT 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 when the Court recognises that I there is a debatable issue as to whether or not it's privilege 2 A s I said, I think there's some inconsistency in the 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 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 lilco telling the 10 jury to disregard something. If counsel has it and the 1) Court says you can't use it, hew do you determine whether 12 they used it or not? The instruction to 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's there, everybody 15 saw It, and you tell them to move it out of their mind. 16 That's unfair to give us that burden. Ue 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 Co extend what was agreed upon the other day? 23 Ml. CILtjVEN: I'm perfectly content if Mr. Carr will 24 extend it. Judge, we're asking you to reconsider the whole / 1 thing, 2 THE COURT: I understand that^ 3 MR. 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. 10 MR. CARR: Your Honor, this Court has interprettea 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 IS 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 whetheij 22 or not this is work product under any number of federal court 23 cases. The work product rule is not simply apply when *' i 24 Counsel for che other sLda says this io woric product. The !I of, . I 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 S work.product is, in fact, work product under federal court 6 rules is actually putting a burden on this Court that this 7 Court is not -- should not accpet. As an officer of this 8 court, and as attorney of my clients, X 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 13 them for things that are truly trade secrets. But X know of 14 no precedent, I.kncw^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 ta put a burden on me, if I want to give 22 a piece cf material to counsel some place, to put- a burden 23 on me to say I've got to go into that federal court and 24 dispute whether or not this is of is r.ot work product, or if r" f s 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 4 then say well, w e 've got a lawsuit going on in West Virginia, 5 or w e 've got a lawsuit going on in Iowa, or we've got a lew6 suit going on in Missouri, is this material useable in Missouri 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 II burden that they're trying to put on this court b y :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 m e . - 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 professior 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 prelicnit what I can or cannot do. I know what 23 my obligations are and I don't know of any law anywhere that 24 says because one court may call something work product that I J I X 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 me as far as getting Information was concerned 5 I'm under the jurisdiction of this court, 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 itTs-ludicrous for Counsel to suggest that those 11 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 IS 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 s. this as counsel says, to barter. But I intend to use this 21 for the purpose of arriving at the truth wherever, and to hei 22 others arrive at the truth. I know that in -- I have a case 23 pending in this court right now, the Hamiore case, the produc: 24 was manufactured in Icwa. Under the discovery rules of Iowa XV I I could not get certain material in Iowa. It's privileged 2 up in Iowa. But it*s'clearly discoverable in Illinois. They 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 advanca 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 11 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 ruls relating to discovery and privilege. Based IS upon that experience T 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's sent elsewhere. I see nothing in It that 23 Is not discoverable. I see nothing in it that could ba calle* 24 work product and labeled, and thusly prevented from discovery 1 cither here or elsewhere. 2 MR. CRAVEN: If I may. 3 THE COURT: Sure. 4 MR. CARR: I will, if counsel advises me that they S 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. 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 issue. 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 are 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 1 cases, Pento cases, these kinds of things. Everybody gets intjo 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 down and get this little secret cash from Rex Carr. That's 11 ju3t not -- that's just unreal. 12 MR. C/jRR: 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 IP,. CRAVEN: He's really 3aying for some reason he's 20 trying to switch the whole forum. New York will decide itself 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 I cun have diverse rulings by diverse courts on the same subject 2 matter and so forth. But, Judge, not the general discovery -- 3 THE COURT: I realize you're limiting it to the 4 in camera, the Incamera stuff. 5 MR. CRAVEN: What happens if the Supreme Court when 6 this case, and if it ever concludes and gets there, and they 7 look at it and say Judge Goldenhersh was in error when he 8 ordered this turned over? It's clearly work product. It's 9 clearly protected. It's clearly privileged. Well, the genie 10 is out of the bottle because Mr. Carr has traded it off for II some purpose. It precludes us from having a fair examination 12 of that question. It moots the issue on appeal. That's not 13 fair. We're entitled to some reasonable protection. That's 14 all we're asking. . IS THE COURT: Okay. After hearing all this argument, 16 I think that my original decision was correct, in effect 17 you're telling me you are suggesting that I decide what is 18 proper in New York and or a Missouri court, or a United 19 States District Court, wherever that's operating under the 20 federal rules. You are ineffect, and you're also telling 21 me now in this argument tor reconsideration, not only that, 22 but that those particular courts, either state or federal, 23 do not have the power over their own attorneys representing 24 the litigants in front of those courts to prevent them from 1 either seeking or receiving what that court in its wisdom 2 has decided under its own applicable rules is privileged 3 for whatever privilege basis. That's not for me to decide. 4 Now the parties in this case are under restrictions as far 5 a3 trade secrets and proprietary matters like that, and I 6 think that is a reasonable, contemplateable type of restric 7 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 we'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 23 It's done with the realization, having done a substantial 24 amount of research in order to determine what was discoverabl and net discoverable here, that there are differences at leas 1 between Illinois and the federal courts, that it's not 2 appropriate for this court to take on this function of decid 3 ing what's appropriate there or delegating it to either of 4 the parties. And under the circumstances, your Motion to 5 Reconsider the Motion for Protective Order is denied. 6 MR. CRAVEN: For the record, Rex, you said 30 days. 7 Now what kind of time limit are we talking about now? Thirty 8 days from when? P 9 MR. CARPv: Whenever you want, Jim. There is nothing IO pressing me to pass this out to anybody. Nobody has asked II 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 ifl, 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 ME. SEIGFREID : I'll be under it too, Jim, just in ( 24 case.