Attorneys Douglas A. Felman and David I. Sharfstein will be representing Blue Bell Creameries L.P. in a jury trial for former Blue Bell Creameries executive Paul Kruse unless they manage to get a subpoena quashed. Until that happens, however, Blue Bell’s in-house counsel, Felman, and outside counsel, Sharfsteo, from the law offices Hogan Lovells US LLP are all signed in with the court to participate.

Felman and Sharfstein are “attorneys for the non-party witness” Blue Bel l Creameries LP. They’ve filed a motion to quash the subpoena in Western District Court in Austin. The judge has signed the Blue Bell attorneys into his court, but he has not yet ruled on their motion to quash.

The Blue Bell attorneys want to quash the subpoena which was filed by former Blue Bell President Paul Kruse. He is charged with felony conspiracy and fraud counts associated with the four-state listeria outbreak linked to Blue Bell ice cream products. His jury trial is scheduled for November in Austin, TX.

The subpoena represents an extraordinary request for the production of nearly all privileged communication between members of Blue Bell management and Blue Bell’s outside counsel at Hogan and Lovells, says the motion to quash.

Blue Bell wants the subpoena quashed on gounds it violates the attorney-client privilege, which it says is among the oldest of the privileges for confidential communication between clients and lawyers.

After outbreak-related events between Feb. 13, 2015, and April 3, 2015, the Department of Justice notified Blue Bell that it was the target of a Federal Grand Jury investigation. That DOJ involvement for Blue Bell would culminate with the company’s agreement to pay $19.35 million in fines, forfeiture, and payments of civil settlements.

The company pleaded guilty in May 2020 to two counts of distributing adulterated food products in violation of the Federal Food, Drug, and Cosmetic Act. It agreed to pay criminal penalties totaling $17.5 million and $2.1 million to resolve False Claims Act allegations regarding ice cream products manufactured under unsanitary conditions and sold to federal facilities, including the military.

During that litigation, Blue Bell produced 500,000 documents and 800,000 pages. It claims, however, that Hogan Lovells US LLP did not have any direct engagement with Paul Kruse prior to his retirement, but was brought on to help bring Blue Bell into FDA compliance.

In the plea agreement, Blue Bell was credited with being fully cooperative during the listeria outbreak investigation. The motion to quash also says the plea agreement did not waive any of Blue Bell’s legal rights.

The tidy 13-page Motion to Quash makes several more arguments. Attorneys say the subpoena should be quashed for such reasons as it lacks specificity, seeks irrelevant material, and isn’t more important than attorney-client work products.

The 66-year old Kruse, an attorney himself, retired three years ago as Blue Bell’s longtime chief executive. Kruse is a long-time resident of Brenham, TX, where Blue Bell Creameries is headquartered about 90 miles east of Austin.

At issue in the criminal charges is Kruse’s role in the 2015 listeria outbreak, in which Blue Bell brand products were the source. A total of 10 people with listeriosis related to the outbreak were reported from 4 states: Arizona with one, Kansas with five, Oklahoma with one, and Texas with three. All ill people were hospitalized. Three deaths were reported from Kansas.

On April 20, 2015, Blue Bell Creameries voluntarily recalled all of its products on the market made at all of its facilities, including ice cream, frozen yogurt, sherbet, and frozen snacks. It also closed its production facilities in four states.

The U.S. Food and Drug Administration released the critical findings from inspections at the Blue Bell production facilities on May 7, 2015.

About Listeria infections
Food contaminated with Listeria monocytogenes may not look or smell spoiled but can still cause serious and sometimes life-threatening infections. Anyone who has developed symptoms of Listeria infection should seek medical treatment and tell their doctors about the possible Listeria exposure.

It can take up to 70 days after exposure to Listeria for symptoms of listeriosis to develop.

Symptoms of Listeria infection can include vomiting, nausea, persistent fever, muscle aches, severe headache, and neck stiffness. Specific laboratory tests are required to diagnose Listeria infections, which can mimic other illnesses.

Pregnant women, the elderly, young children, and people such as cancer patients who have weakened immune systems are particularly at risk of serious illnesses, life-threatening infections, and other complications. Although infected pregnant women may experience only mild, flu-like symptoms, their infections can lead to premature delivery, infection of the newborn, or even stillbirth.

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