With jury deliberations on a break until Thursday morning, one set of defense attorneys involved in the criminal trial of three former Peanut Corporation of America (PCA) executives appear certain of victory. These are defense attorneys the jury has never seen since they are former PCA business lawyers who, behind the scenes in the trial, have been resisting turning over documents they may hold involving the defendants. On Monday, Judge W. Louis Sands issued an order suggesting the issue is now “potentially moot” because the evidentiary stage of the criminal trial ended last Friday, Sept. 12. In the order, Sands gave all the parties seven days to respond in writing as to their “respective positions.” It marks the second time the judge has asked one or more of the parties to make additional arguments since lawyers for Weinberg, Wheeler, Hudgins, Gunn & Dial of Atlanta and Meagher & Geer (M&G) and M&G’s Lenae Pederson, both of Minneapolis, moved two weeks before the start of the trial to quash subpoenas they’d received from the prosecution. The subpoenas, which came 17 months after the indictment of the PCA executives on a total of 76 federal felony counts, sought numerous documents and demanded that the former PCA business attorneys be available for testimony at the trial. Those law firms and their attorneys responded with howls of protest about work product doctrine and lawyer-client privilege. M&G hired two other big law firms to help out in the fight, Atlanta-based Morris, Manning, & Martin (MMM) and Faegre Baker Daniels of Minneapolis. MMM’s Brian J. Levy wrote that the subpoenas imposed obligations on the lawyers that were “unduly burdensome, unreasonable, and oppressive.” The lawyers who received the subpoenas worked for the PCA corporation before criminal indictments were brought. M&G and its partner, Lenae Pederson, represented the business in wrongful death litigation filed in civil court after the 2008-09 Salmonella outbreak. In that capacity, Pederson conducted an investigation and interviewed PCA employees, including the defendants. The prosecution first tried to get her to turn over documents by writing and asking for the information on June 6, 2014. A similar request went to the Atlanta law firm that had managed PCA’s corporate bankruptcy. Both firms let the government know it would have to make the requests in formal subpoenas, which arrived on July 9. That was just five days before the trial was originally scheduled to start, but it was delayed to July 28. The next day, Department of Justice Attorney Patrick Hearn, one of three prosecutors in the criminal case, told the business lawyers that the government was “seeking the production of notes, memoranda, or other document relating to interviews of PCA employees … including all e-mails or other written communications between PCA employees and the corporation’s attorneys.” The government wanted the information by July 18, just prior to the date the trial actually got underway. M&G has 16 boxes of PCA documents and insisted that, at a minimum, it would need more time to review the material it had for “attorney work product and related issues.” It was ahead of that deadline that the business attorneys moved to quash the subpoenas. After Hearn’s initial argument in opposition to the motion to quash, Judge Sands was not satisfied because he ordered the DOJ to try again and suggested it focus on legal issues involving attorney-client privilege and work product doctrine. When it argued the second time, the government indicated it would be satisfied with any “verbatim or near verbatim” statements by defendants Stewart Parnell, Michael Parnell, or Mary Wilkerson about their work at PCA. To Hearn’s statement that attorney-client privilege does not apply because the lawyers worked for the corporation and not its employees, M&G argued on Sept. 10 that this “is not necessarily the case.” Attorney Levy wrote “… the question of whether the attorney-client privilege applies depends on whether the individuals reasonably believed that M&G was representing them alongside PCA.” On the same day, the government rested without being able to use any of the materials the former business attorneys still hold. Atlanta attorney Alan M. Maxwell at Weinberg, Wheeler, Hudgins, Gunn & Dial pushed off most of what the government sought because he is a party of the joint defense agreement for the criminal trial. If the prosecution has made a convincing case to the jury, this chapter will probably be quickly forgotten. However, if the defendants are acquitted or largely acquitted, it will likely raise questions in some quarters about whether the prosecution was ready for trial.