The former President of Blue Bell Creameries, Paul Kruse, is five months out from a jury trial and probably could use a little good news. And a little good news is what he is getting from U.S. District Judge Robert Pittman.

Blue Bell has been attempting to quash a subpoena from Kruse to give him access to documents held by the corporation and its outside counsel, Hogan Lovell.

Pitman has signed an order that in part grants Blue Bell’s motion to quash the Kruse subpoena but in another part denies it. It means at trial, Kruse may use some Blue Bell corporate documents.

Pitman’s divided ruling is in response to sealed arguments by Blue Bell, which wanted the subpoena quashed entirely, and Kruse’s defense attorneys.

Before his ruling, Pitman gave this background of the case:

“This case stems from the contamination of Blue Bell’s products with the bacteria Listeria monocytogenes (“Listeria”) between 2010 and April 20, 2015, and Kruse’s alleged role in concealing potential and confirmed Listeria contamination of Blue Bell products. Kruse, the former CEO of Blue Bell, is alleged to have taken steps and conspired with others to conceal the contamination of Blue Bell products despite knowing that certain Blue Bell products contained Listeria. 

“The alleged offenses were committed between Feb.19, 2015, and April 7, 2015, when Kruse allegedly became aware that Blue Bell products had tested positive for Listeria but nevertheless took steps to conceal the outbreak. 

“The indictment charges Kruse with one count of conspiracy and six counts of wire fraud/attempted wire fraud under Title 18. The government alleges that between February 13, 2016, and April 20, 2015, Kruse and others engaged in a conspiracy to conceal the Listeria outbreak from certain Blue Bell customers ‘by means of false and fraudulent pretenses, representations, and promises.’ 

“The government further alleges that between Febr.19, 2015, and April 7, 2015, Kruse transmitted six emails in furtherance of the conspiracy to conceal the Listeria outbreak from certain Blue Bell customers. “

Pitman permitted Kruse to subpoena Blue Bell on March 4.

Kruse sought records for Hogan Lovell’s attorneys and 11 of Blue Bell’s management team members between March 25, 2015, and April 25, 2015.

 Records sought included:

  • (a) listeria found in Blue Bell products or facilities, 
  • (b) interactions with federal, state, or local agencies relating to Listeria found in Blue Bell products or facilities and/or
  • (c) interactions with Blue Bell customers relating to Listeria found in Blue Bell products or facilities.”

Blue Bell retained Hogan Lovells on March 17, 2015, to receive legal advice regarding the Listeria outbreak. Kruse asserts that the documents requested are “critical to his defense” because they will be used at trial to “negate the intent to defraud that is an element of each of the charges against him.” 

Blue Bell moved to quash the Kruse subpoena, arguing that the attorney-client privilege protects the documents requested and that the “overbroad requests” reflect an attempt at “impermissible discovery purposes.” 

Kruse fought Blue Bell’s motion to quash because the documents requested as “highly relevant — indeed, critical to his defense” and are admissible at trial. He identified 1782 documents he believes to be responsive to his subpoena. However, he estimates that the “total number of unique documents is no greater than 500 and likely far fewer with the removal of duplicates.”

Kruse suggested the court conduct a camera review of privileged documents, while Blue Bell insisted on quashing the entire subpoena.

Federal Rule of Criminal Procedure 17(c) governs the issuance of a subpoena duces tecum in a federal criminal matter. The rule provides authority for the court to quash motions that are “unreasonable or oppressive.”

Under Rule 17, a subpoena must show that:

  1. The subpoenaed document is relevant.
  2. It is admissible.
  3. Its request comes with adequate specificity.

The Court found that Kruse’s first document request, generally seeking all communications between Hogan Lovell attorneys and Blue Bell management regarding “listeria found in Blue Bell products or facilities,” lacks adequate specificity to satisfy that standard.

According to Pitman’s ruling, two of the other documents requested in Kruse’s subpoena were identified with “sufficient specificity” to meet the standard.

Kruse has identified the two types of communications he seeks between Hogan Lovells attorneys and Blue Bell management during one month that tend to show that he relied on counsel in taking actions now at issue in his indictment. 

After some discussion, however, Pitman also agrees to quash the second part of the subpoena. He writes:

“Because Kruse has failed to explain how communications between Blue Bell management and Hogan Lovells attorneys concerning interactions with federal, state, or local agencies are ‘relevant to the charges for which [he is] being prosecuted,’ ” the court will quash Kruse’s second document request.

But he does uphold the third and final part. Here’s his logic:

  • Concerning the single remaining document request, the court acknowledges that advice from counsel may serve as “a means of demonstrating good faith and represents possible evidence of an absence of any intent to defraud.” 
  •  The document requests for communications between Hogan Lovells attorneys and Blue Bell management regarding “interactions with Blue Bell customers” are relevant to whether the advice informed Kruse’s instructions to employees, distributors, and customers of counsel. 
  • Given that Kruse has asserted that the requested documents will tend to negate his intent to defraud customers because he relied on the advice of counsel, he has provided sufficient explanation to support a “rational inference of relevance” for these documents.

In the end, Pitman found that Kruse’s Fifth and Sixth Amendment rights warrant an in-camera review of documents responsive to the third document request to determine whether Kruse’s Fifth and Sixth Amendment rights warrant their production.

The 66-year-old Kruse, Blue Bell’s long-time  CEO, is charged with six counts of conspiracy and fraud linked to a deadly 2015  listeria outbreak involving the company’s ice cream products.

Kruse is a resident of Brenham, TX, where Blue Bell Creameries is headquartered. It’s about 90 miles east of Austin.

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