Government Narrows Scope of Subpoenas for PCA's Past Corporate Attorneys
Government attorneys have filed an additional response to a motion by former attorneys for the Peanut Corporation of America (PCA) to quash a subpoena for information they hold, and here and there they've narrowed what they will call good enough. Department of Justice trial attorney Patrick H. Hearn filed an 11-page memorandum requested by Judge W. Louis Sands within an imposed seven-day deadline. The memo defends the government's subpoenas of two nationally known law firms, Atlanta-based Weinberg Wheeler Hudgins Gunn & Dial LLC and Meagher & Geer PLLP. In moving to have those subpoenas quashed, the two law firms raised legal issues involving attorney-client and work product privilege that Sands did not think the government addressed in its first response. The two law firms are so-called "non-parties" in the current criminal trial underway in Albany, GA, where three former PCA executives have pleaded not guilty to a total of 71 federal felonies. The subpoenaed law firms do not represent any of the three defendants in the criminal trial, but they did represent the now-defunct corporate entity in civil and business matters. In his "do-over" response, Hearn said the government is seeking "only those documents that reflect any verbatim or near verbatim statements by defendants Stewart Parnell, Michael Parnell, or Mary Wilkerson, concerning their work at PCA." Hearn says neither law firm ever represented any of the defendants as individuals. "Both represented the corporate entity PCA," he writes. "There is, therefore, no attorney-client privilege that attaches to any interactions between and among the defendants and (the two law firms)." Weinberg Wheeler, which managed the PCA liquidation, signed the joint (criminal) defense agreement, an action that caused the government to limit its subpoena only to materials held prior to Feb. 11, 2009. Hearn then goes on to argue that the government is not saying that work product protections are waived, but that it questions whether they appropriately apply to the materials requested. The government memo also says it is seeking only "facts" and that fact-based work product can be subjected to discovery: "Not every document memorializing an oral statement of a witness, in other words, tends to reveal the inner thoughts of an attorney, even if the document is prepared by an attorney." Hearn makes it clear that the prosecution team, also including K. Alan Dasher, assistant U.S. Attorney for the Middle District of Georgia and DOJ Consumer Protection Branch trial attorney Mary M. Englehart, is looking for statements the defendants made after the discovery of the 2008-09 Salmonella outbreak. Previously, the government suggested the court order an in-camera review of the documents held by the two law firms. Now it says it is open to "alternative procedures," including the appointment of a special master to review privilege logs. Meanwhile, the trial of the three defendants continued Friday with Daniel W. Kilgore, the former PCA operations manager, on the witness stand for the fourth day. Like former plant manager Samuel Lightsey, Kilgore has a plea agreement with the government, and his testimony as a top PCA insider is likely going to be key to the prosecution's case. The trial adjourned on Day 24 for the long Labor Day Weekend. Jurors will return at 8 a.m. on Sept. 2 to hear more testimony until 2 p.m. At 2:30 p.m. that day, Sands has scheduled a "Daubert" hearing for challenges to an unnamed potential expert witness. Jurors will be excused for the day before that hearing begins.
Tags: Daubert hearing, Non-party attorneys, PCA trial