Discovery
PRETRIAL DISCOVERY AND MOTIONS TO COMPEL IN THE GRACE CASE
By: Michael Doggett
I. INTRODUCTION
From the company’s humble beginnings in 1854, W.R. Grace came to be a powerhouse in a range of diversified industries from chemicals, packaging, sporting goods, and even tacos. However, Grace’s modern reputation is as the target of lawsuits, famously represented in “A Civil Action” and the litany of civil suits against the corporation by plaintiffs exposed to asbestos in company mines and plants throughout the United States that caused the corporation to file for bankruptcy. Following a large cash settlement fund for asbestos victims, the government proceeded with a criminal trial against Grace executives in Federal Court in the Western District of Montana, where thousands of workers and their families have been sickened or killed by asbestos exposure from a large Vermiculite mine in Libby, Montana. The government obtained one indictment against WR Grace and seven former executives of the corporation. The government charged the corporation with conspiracy to commit an offense against the United States and to defraud government agencies, violations of the Clean Air Act, and obstruction of justice. In addition, the seven former executives are all also charged with conspiracy. All the Grace defendants are represented by several able attorneys all paid for out of Grace’s pocketbook.
As part of its litigation strategy, W.R. Grace and its executives have requested the Court to compel the Government to produce a variety of materials and comply with court rules, beyond the more than 3 million documents in electronic format that the Government has already provided to Grace. The specific requests break into two general categories. 1 category of the Motions to Compel sought to place limits on the Government’s statements to the public about the Grace case, while the other category sought to require the Government to produce certain documents. These second category of Motions to Compel includes:
1. The production of asbestos sampling data;
2. The production of Brady materials;
3. The production of internal federal governmental agency data;
4. The production of medical records of Libby victims;
5. The production of expert disclosures that the government intends to use at trial, and;
6. The production of rough interview notes taken by the government while interviewing all current or former government employees.
II. THE FIRST MOTION TO COMPEL
The first Motion to Compel asserted that after US Attorney Bill Mercer’s surprise announcement on February, 5th, 2005—in which he allegedly “sensationalized” the indictment—the Court instructed the government in a March 9, 2005 settlement conference to refrain from further prejudicial statements. Not surprisingly, this was the first Motion to Compel filed by Grace with the Court, and its outcome would set the boundaries or the government’s ability to speak about the Grace case outside of Court. The Motion sought to accomplish Grace’s most important pre-trial goal: get a jury where all 12 members would not find the Defendants guilty on any, or all, of the charges brought against them.
In its motion, the Defense contended that despite these clear warnings from the Court, the Government continued to make prejudicial statements to the public, which jeopardized the Defendants chances of an impartial jury at trial. In support of its motion, the Defendants cited comments at a Libby Community Advisory Group Meeting on March 10, 2008 in which the Government called the Libby incident “one of the largest environmental crimes in the country”, and explained—without court approval—that cameras would be allowed in the courtroom, and that the trial would be broadcasted via closed-circuit T.V. direct to Libby.
In his order denying Grace’s motion, the Court stressed that it has a duty to insure against the dissemination of prejudicial information, which it did with its warning at the scheduling conference. This admonition, coupled with local rules 83.10 and 83.13, prohibit the Department of Justice from:
1. Giving an opinion about the Defendants’ guilt or innocence on the merits of the case if a reasonable person would expect the statement to be disseminated;
2. Making extrajudicial statements that are substantially likely to heighten public condemnation of the Defendants unless the statements inform the public of the nature of the prosecutor’s action and serve a legitimate law enforcemenb purpose;
3. Making extrajudicial statements that are reasonably expected to be made public and substantially likely to prejudice an adjudicative prodeeding in this matter; and
4. Providing statements to the media, except for statements confined to those matters set forth in Local Rule 83.10(e).
In addition, Department of Justice Policy Statements and the U.S. Attorney’s Manual contain addition strictures on government speech.
In contrast to these policies and provisions, the Court also stressed the applicability of the Justice for All Act, which provides crime victims with rights to be heard and be present in Court, and requires the Government to establish procedures for such notification where there are multiple crime victims.
After considering the applicable law, the Court relied heavily on the Justice for All Act to find that U.S. Attorney Bill Mercer’s comments fell squarely within his obligations under Federal Law. However, the Court also found that the Government’s comments at the Community Advisory Group’s meeting did not fall under the Justice for All Act, but the Court also found that the comments did not violate the Local Rules or the Court’s order on March 9th, since they also served the legitimate purpose of informing Libby that “quality counsel had been assigned to the case, and that the case was well prepared.”
In the final part of the order, the Court irreverently noted that since the Defendants did not seek any specific relief except that the Government follow the Court’s orders, the Local Rules, and Federal Law—and that the Government had in fact complied with such orders, rules, and law—the Defendants’ entire motion was moot. In the Court’s own words, “The United States is aware of the rules and of this Court’s expectation that they be followed.”
II. THE SECOND CATEGORY OF MOTIONS
Despite this discouraging start, the Defendants kept filing motions to compel—although in contrast to the prior motion, all further motions were requests for the production of documents that Grace requested in discovery. In its efforts to produce documents from the Government, Grace was successful in obtaining documents from the Government in several areas, including: asbestos sampling data from the air and soil in the Libby area; potentially exculpating Brady evidence from other government agencies; rough interview notes of current and former Grace employees; and Medical records of the Libby victims.
The second category of motions centers on a motion by the Grace defendants to require the Prosecution, pursuant to Brady, to turn over potentially exculpating evidence. In response to the motion, the Prosecution argued that it only had an obligation to turn over evidence within the “prosecution team”. Unfortunately for the Prosecution, Judge Molloy ruled that the Prosecution was required to find potentially exculpating evidence for the Defense in all government agencies. As of the beginning of the Grace trial, several hundred government employees were combing through agency files to find potentially exculpating evidence.
Subsequent motions filed by Grace were also successful. These included motions to compel the Government to turn over handwritten notes made while interviewing current and past Grace Employees, asbestos sampling data from the air and soil in the Libby area, and medical records of Libby victims. Further motions to compel by Grace are before the Court, and more motions will likely be filed if Grace feels that it is unable to present an effective case because the Government is withholding evidence valuable to the trial.