How should we read the tea leaves in the latest order from U.S. District Court Judge W. Louis Sands about an issue that might impact the criminal trial of three former Peanut Corporation of America (PCA) executives? We’ve been using this Sunday space to comment during the course of the federal trial on how things appear to be progressing, both inside and outside the courthouse. Some of what’s been going on away from the jury this week might be pivotal to the endgame. On Thursday, Judge Sands signed an order for government attorneys to file another response to motions to quash subpoenas that, shortly before the trial started, were served on PCA’s former attorneys. There are two interesting elements to this sideshow. First, prosecutors are suggesting they need what PCA’s former attorneys are still holding back in those boxes and electronic files. Outside observers at least have to wonder: Did the government’s lawyers start the trial without having what they needed to achieve convictions? Second, orders from Judge Sands are always efficient in the use of words, but the possible hint of sarcasm from His Honor in this one might be of concern to the Department of Justice attorneys. This order states that, in its initial response to PCA lawyers, DOJ failed to address important claims about attorney-client privilege and work product doctrine. The judge’s order says this time that the government should address the “specific arguments raised” within seven days so that he might give the issues “meaningful review.” These PCA attorneys are not the defense lawyers who are representing any of the defendants in the current criminal trial, but rather those who represented the peanut company during civil litigation that was finished before the felony charges were brought. The subpoenaed lawyers have already brought in other lawyers to represent them. It remains to be seen how issues involving lawyer-client privilege and work product doctrine might impact the final days of this trial. These are issues that could work their way up to the 11th Circuit of the U.S. Court of Appeals in Atlanta. That, in turn, could result in a messy end to the current PCA trial. It makes it easier to understand why Judge Sands has ordered the do-over from DOJ.
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