Brent Wisner of Baum Hedlund Aristei & Goldman PC came under fire last week when he posted Monsanto emails the day after he believed the deadline to preserve confidentiality was over. Baum Hedlund Aristei & Goldman PC represent the plaintiffs in an action accusing Monsanto of selling cancer-causing weedkillers. The emails involve questions about Monsanto influencing research on Roundup’s carcinogenic effects. Monsanto was outraged by the documents’ release.
“There is a standing confidentiality order that they violated,” said Scott Partridge, vice president of global strategy for Monsanto. He said that while “you can’t unring a bell,” Monsanto would seek penalties on the firm. U.S. District Judge Vince Chhabria has now ordered Mr. Wisner and his firm to show cause as to why their firm should not be removed from the case.
No affirmative duty to inform an opposing party of relevant facts vs. the trouble with blindsiding someone with a discovery deadline.
The Protective Order that Mr. Wisner is alleged to have violated outlines a process for challenging the confidentiality of documents. Specifically, the attorneys were to give notice of any challenge to confidentiality designations, meet-and-confer within 14 days, and finally the designating party must file a motion to maintain confidentiality within 30 days of the notice.
Wisner claims to have followed that process to the letter, and says that Monsanto refused to discuss any of the documents and literally told him to “go away,” refusing to answer further. Plaintiffs also deny telling Monsanto that they wouldn’t need to file a motion to maintain confidentiality or that the plaintiffs would be withdrawing the challenge. Nevertheless, Wisner admits to putting the documents on full blast exactly 31 days after he first challenged confidentiality, sending copies to the Inspector General for the EPA, Members of the European Parliament, California’s Office of Environmental Health Hazard Assessment, and posting everything publicly on the firm’s blog.
Wisner and his firm now face not only removal from the case but also sanctions if the Court determines that they acted in bad faith by lulling Monsanto into a false sense of security.
Even putting aside the question of confidentiality, the Court expressed concern that releasing the documents under these circumstances violated the requirement that lawyers work with opposing counsel in good faith.
Mr. Wisner was aware of this dispute that was pending and made the decision — and was aware that Monsanto took the position that the documents could not be dedesignated, or, that is to say, the documents could not be released without involvement of the Court. . . .
What’s clear is that there was a live dispute over whether those documents could be released and whether they could be released without first submitting a joint letter to the Court about the release of those documents. And Mr. Wisner, it appears to me, operated in bad faith in releasing the documents without coming to Court first.
Tr. of Tel. Hearing on Aug 9, 2017
A hearing on the Court’s order to show cause is set for August 24, 2017. The sanctions that Wisner and his firm must defend against are pursuant to the Court’s inherent powers. Wisner contends that any live dispute ended on August 1, 2017 and that under the protective order, the onus of seeking Court intervention rested exclusively with Monsanto.
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