Grove Fresh Distributors, Inc. v. John Labatt Ltd.

• Decision Date: 09 June 1995
• Docket Number: No. 90 C 5009.,90 C 5009.
• Citation: 888 F. Supp. 1427
• Parties: GROVE FRESH DISTRIBUTORS, INC., an Illinois corporation, Plaintiff, v. JOHN LABATT LIMITED, a Canadian corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

888 F. Supp. 1427

GROVE FRESH DISTRIBUTORS, INC., an Illinois corporation, Plaintiff, v. JOHN LABATT LIMITED, a Canadian corporation, et al., Defendants.

No. 90 C 5009.

United States District Court, N.D. Illinois, Eastern Division.

June 9, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Dale R. Crider and Warren S. Radler, Rivkin, Radler & Kremer, Chicago, IL, for plaintiff.

Jos. J. Duffy, Roger Pascal, Joseph Anthony Cancila, Jr., and Aphrodite Kokolis, Schiff, Hardin & Waite, Chicago, IL, for Labatt.

Jeffrey Stone, McDermott, Will & Emery, Chicago, IL, for Everfresh.

Royal B. Martin, Jr., Martin, Brown & Sullivan, and Locke E. Bowman, III, Chicago, IL, for Allen.

MEMORANDUM OPINION AND ORDER CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW

ZAGEL, District Judge.

The perfect tragic figure, according to Aristotle, is "a man not preeminently virtuous or just, whose misfortune, however, is brought upon him not by vice and depravity but by some error of judgment...." Aristotle, The Poetics 238 (Friedrich Solmsen ed. & Ingram Bywater trans., Modern Library 1954). The great heroes of tragedy conformed to the Aristotelian conception of a great man whose unkind fate is precipitated by a tragic "flaw" in his personality. Thus, Othello's downfall was the result of his own jealousy, MacBeth fell victim to his blinding ambition, Lear's insecurity prompted his misfortunes, and Hamlet's tragedy was that of a man who could not make up his mind. John Messina fits the mold of the great tragic figure. His is the tragedy of an attorney who could not keep a confidence.

The confidences Mr. Messina could not keep were protected by court orders of confidentiality. Mr. Messina's past behavior played a pivotal role in the granting of these orders, since it appeared that he would go to any lengths to try his case on the courthouse steps rather than in the courtroom itself. That Mr. Messina sincerely, even fervently, believed in the unremitting badness of the defendants in this case is beyond doubt, as was his willingness to hurt them by disseminating information for purposes of damaging them outside the walls of the courtroom. The orders of confidentiality were meant to prevent Mr. Messina's misuse of the litigation to pursue his own agenda. But the evil to be prevented by the orders was the evil that actually ensued.

Undeterred by repeated court warnings, possible harm to his client's interests, and, apparently, his own fate, Mr. Messina continued to disclose protected information. His propensity to reveal court protected secrets is the Aristotelian flaw which precipitated his present predicament: possible sanctions for contempt and for violations of Rule 11. Mr. Messina stands accused not only of violating this court's orders of confidentially, but for failing to appear in court as ordered and for making misrepresentations to the Seventh Circuit Court of Appeals. Since the "first essential, the life and soul, so to speak, of Tragedy, is the plot," id. at 232, some history is in order.

Background

Mr. Messina represented the plaintiff, Grove Fresh Distributors, Inc., in two separate but related suits filed against competing orange juice manufacturers for allegedly engaging in a conspiracy to unlawfully adulterate and misbrand orange juice in violation of various federal laws.

Grove Fresh filed the first suit against Everfresh Juice Company in 1989 (Grove Fresh Distributors v. Everfresh Juice Co., No. 89 C 1113)¹ The genesis of the second suit (Grove Fresh Distributors, Inc. v. John Labatt, Ltd., No. 90 C 5009) began when Mr. Messina concluded that Grove Fresh had claims against John Labatt, Ltd. — the parent of Everfresh — similar to its claims against Everfresh. Mr. Messina sent Everfresh's counsel a demand letter seeking payment of claims on 23 August 1990. The letter gave notice that Mr. Messina would file a new complaint on behalf of Grove Fresh if Labatt did not settle.

On 24 August 1990, Labatt presented an emergency motion to seal the new complaint described in Mr. Messina's letter, arguing that the new complaint was an illegitimate attempt to amend the complaint in case No. 89 C 1113 (then 18 months old and nearing the close of discovery). Contending that Grove Fresh's motive in filing this new complaint was "to evade and disregard the earlier rulings made by this Court" in case No. 89 C 1113 on procedural issues and the discovery schedule, Labatt prayed for an order "requiring Grove Fresh to immediately submit its new complaint to this court under seal."

On 29 August 1990 I granted the motion to seal the complaint for case No. 90 C 5009. A key reason behind this decision was Mr. Messina himself. After presiding for the previous eighteen months over case No. 89 C 1113, I was familiar with certain tactics employed by Mr. Messina which I believed were questionable if not reprehensible. Specifically, I was wary of Mr. Messina's repeated attempts to beat the defendants into submission by disclosing materials previously designated as confidential to generate unfavorable publicity for them². I had no reason to believe Mr. Messina would change his methods and every reason to suspect he would attempt to try his latest suit on the courthouse steps as well.

Given the relatedness of the two cases and their litigants, and my familiarity with both, I felt it unnecessary to reiterate in my sealing order for the new case what seemed painfully clear from the lessons, and record, of No. 89 C 1113. The minute order granting the seal in No. 90 C 5009 therefore simply stated:

Defendants' motion to file case under seal is granted. The complaint and all subsequent pleadings shall be filed under seal until further order of court.

Three days later I heard arguments regarding a motion by Grove Fresh to lift the seal. After a brief colloquy, I stated that the "motion to lift the seal is denied without prejudice to you raising it after we deal with whatever pretrial motions there are with respect to dismissing the complaint." I later denied various motions to dismiss the case, but did not explicitly refer to the emergency motion to seal.

On 1 May 1991 I signed a stipulated protective order "in order to provide protection of confidential and proprietary information and to facilitate discovery."³ As Grove Fresh's attorney at the time, and therefore a signatory to the order, Mr. Messina agreed that "documents designated as `confidential' shall be used only for the preparation and trial of this lawsuit, and for no other purpose except as may be required by law or court process."

On 9 October 1991, intervenors in the case moved to vacate the seal. Ordering a fresh round of briefs on the seal's merits, I offered the defendants another chance to justify the seal and identify what it wanted to protect. On 29 November, Everfresh argued that the seal

was originally ordered in the 90 case at Everfresh's request because plaintiff had threatened to file the action in the public record, if Everfresh did not pay a multimillion dollar settlement, with unsubstantiated scandalous allegations that would damage the reputation of Everfresh and others. Plaintiff's pleadings also incorporate and attach protected confidential information obtained through discovery. Had this court not placed the 90 case under seal, the unsubstantiated, scandalous allegations and information that were subject to the protective order would have been improperly disseminated into the public realm.

I agreed with the premise of this argument. On 20 November 1992, in an order partially granting intervenors' motion, I stated on the record that "the seal order in 90 C 5009 served to effectuate the purposes of the protective order entered in the earlier case," No. 89 C 1113.⁴ Thus did I seek to incorporate by reference the protective order in the older case as a justification for the seal in the newer one.

I also put into the record my feeling that lifting the seal on the entire case was problematic, because the existence of the seal may have led the parties to believe that they could file papers containing discovery material that would not otherwise properly be put before the court. Another problem with lifting the seal stemmed from the nature of the complaint. As I said in the order,

the complaint in this case contains allegations which would, if not filed in court and if untrue, be libelous. Some of those against whom allegations are made are not parties to the record and can never secure vindication. The business records, furthermore, contain information which the law customarily protects such as speculation and the unproved, untested conclusions in pleadings filed by lawyers under the loose requirements of Federal Rules of Civil Procedure 8 and 9.

On 21 January 1993, Grove Fresh discharged Mr. Messina as its attorney in the Grove Fresh litigation. On 29 April 1993, case No. 90 C 5009 was dismissed with prejudice pursuant to settlement.

Then, on 1 June 1993 intervenors renewed their motion to vacate the seal. This was denied. Intervenors appealed parts of this denial, which included the issue of whether this court should have issued a decision on the record justifying the seal.

In remanding the case back to me, the Seventh Circuit reiterated that it had yet to find "reversal per se appropriate" where a court had not made a point of articulating its findings and reasoning for entering an order limiting access. Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir.1994). The Court of Appeals asked "only that in reaching its decision in this matter on remand that the district court specify the basis for its conclusions."

Id. at 899. This decision was issued on 12 May 1994.

Continuing disclosures by Messina in apparent violation of the orders of confidentiality, and the motions that would inevitably follow to try and rein him in, gave me ample opportunity to follow the Court of Appeals request and elaborate for the record the seal's

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