Away from the jury in the criminal case against three former Peanut Corporations of America (PCA) executives, federal Judge W. Louis Sands is soon going to have to decide if he’s going to let government prosecutors go through documents held by PCA’s former lawyers. It’s a legal dispute brought on the eve of the trial by prosecutors who served the company’s former corporate lawyers with subpoenas for the production of recorded statements, reports, written or recorded notes and emails involving Stewart and Michael Parnell and Mary Wilkerson, the three defendants now in the 19th day of their trial. The former PCA lawyers, known as “the Movants” or “the non-parties,” want Sands to quash those subpoenas. Prosecutors say they have a “necessity and a substantial need for the documents,” and they’ve asked the lawyers to produce them since they claim that evidence is “unavailable elsewhere.” The defendants, they say, asserted their rights not to make statements or submit to government interviews about activities at either PCA or PP Sales, the peanut brokerage run by Michael Parnell. At what might be the halfway point in the trial, attorneys from both Atlanta and Minneapolis who are working for the law firm of Meagher & Geer PLLP, along with attorney Lenae Pederson, have renewed their efforts to get the subpoenas quashed. Meagher & Geer (M&G) and Pederson, an M&G partner, represented PCA in a wrongful death suit involving the contaminated peanuts. In her capacity as a company lawyer, Pederson conducted an investigation and interviewed PCA employees, including the defendants. Civil actions against PCA were settled before the government indicted the former executives in February 2013. Attorneys from Morris, Manning & Martin LLP in Atlanta and Faegre Baker Daniels LLP in Minneapolis delivered multiple legal arguments to Sands in favor of quashing the government’s subpoenas. They do not claim absolute lawyer-client privilege, but rather erect a wall of more specific concerns. These include:

  • The government has failed to demonstrate the information is necessary to the current prosecution. They say the government is after interview notes and memorandums that are protected by various court precedents.
  • Complying would be unreasonable and oppressive, they say. Just limiting documents to the Parnells and Wilkerson would require giving up 16 boxes of materials, along with “a large amount” of electronically stored information.
  • The government offers no justification for “burdening the court” with so much “in camera” review.

“The government’s opposition is most notable for what it does not say,” the Movants’ attorneys say. “It never explains why the subpoenaed documents are necessary to the Government’s prosecution, as required to obtain Movant’s attorney work product.” They also say the government has not identified a single specific document it wants turned over. Al Maxwell, a partner in Atlanta with the national law firm of Weinberg, Wheeler, Hudgins, Bunn & Dial LLC, was also subpoenaed. Maxwell, arguably one the nation’s top food industry attorneys, was coordinating counsel for civil claims made in the aftermath of the 2008-09 Salmonella outbreak. He claims the documents the government wants are part of the joint defense agreement, which he also signed. Sands has not given any indication about when he might rule.