Madison County Circuit Judge Daniel Stack blew his stack when he heard that big oil companies BP, Sinclair and Shell kicked little Apex Oil out of mediation over the cost of groundwater contamination in Hartford.
"They can't exclude you," Stack told Apex Oil attorney Bill Knapp of Edwardsville at a Sept. 7 hearing.
Stack said, "I ordered you to mediation."
Knapp asked for a directive that Apex Oil be included, and he surely got it.
"Was there something in my order that said if somebody didn't do something the way everybody else wanted to, they could be excluded from the mediation?" Stack said.
No one answered.
"I ordered this mediation," Stack exhorted.
"That's right," Knapp replied,
"You're involved," Stack said. "You're included."
He looked at Sinclair Oil attorney Joseph Nassif of Clayton, Mo., and said, "See to it."
Knapp thanked Stack.
Plaintiff attorney Mark Goldenberg of Edwardsville, representing about 180 Hartford residents in a damage suit over pollution from petroleum refineries, said "okay."
Nassif said nothing.
"You understand what I said?" Stack said. "Can you draft an order like that?"
That untied Nassif's tongue and he said, "An order along those lines and share it with the plaintiffs and then submit it to the court."
"You may," Stack said.
Nassif had anticipated a happier ending.
He asked for the hearing, after moving on Aug. 17 to protect exchanges of scientific secrets among oil companies from discovery by plaintiffs.
In the motion he represented not only Sinclair but also Premcor Refining Group and subsidiaries of BP and Shell.
Nassif formalized their cooperation by identifying them for the first time as "the allocation group."
He wrote that they had nearly reached an allocation agreement and needed a protective order to close the deal.
Unity on the defense inspired unity among three competing teams of plaintiff attorneys.
On Sept. 6, nine attorneys pursuing claims in three separate suits opposed Nassif's motion in a joint brief on behalf of "consolidated plaintiffs."
They called the motion premature and wrote, "The information defendants seek to protect may not even yet exist…"
At Stack's hearing the next day, defense counsel spoke in riddles and plaintiff counsel talked in circles.
Nassif told Stack, "The defendants would like to have their own mediation as part of the mediation that you ordered."
"We are now getting down to basically parsing what the potential settlements might be with the plaintiffs," Nassif said.
"A lot of what we would say to each other in a mediation we would not want to have basically said or given to the plaintiffs.
"Some of the parties are very interested in having assurance that these documents that were generated are not going to be produced.
"We're trying to foster settlement. We're making some progress with the plaintiffs."
Bernard Ysursa of Belleville, also for Sinclair, said, "The problem is, we've got this mediation going and now we kind of have like a separate mediation on the allocation, a caucus mediation so to speak."
"What these clients need, frankly, is a security blanket," Ysursa said.
Goldenberg said, "What they are asking the court to do is to give them security that something that otherwise may be discoverable can now come under this cloak of this security blanket."
Stack said, "Can't you simply have an order that says that it's protected unless otherwise discoverable?"
Goldenberg said, "Why wouldn't you do it the other way? The other way, judge, because that requires a crystal ball."
Goldenberg said, "You're asking us to do this in a crystal ball in a vacuum."
Stack said, "It doesn't mean you can't get it from them. They just don't want each other – They don't want the other people to give it up."
Goldenberg said Stack could see something in chambers and they could argue it then.
Stack said he would order that no defendant could divulge information from another defendant.
He said, "Okay? So if Sinclair gives it to Premcor, Premcor cannot give it out to anybody."
Neither Goldenberg nor Nassif endorsed that.
Nassif said he wanted an order applying mediation law.
He said, "If they think we have a document that is not covered by the provisions of the uniform mediation act, they can raise that with you and if we think it is covered we can raise the issue."
The attorneys had set their own trap, and Knapp caught them.
He raised a hand. Stack said, "Bill?"
Knapp said, "I'm not sure, based upon what Mr. Nassif just had to say, what he is saying about which mediation."
He said, "The mediation he is talking about, as I understand it, is a separate private mediation between certain defendants who belong to the Hartford working group."
He said, "My client is not a member of the group."
He said, "My client has been excluded by the actions of some parties here and I don't know if the court's aware of that."
Stack said, "I'm not."
Knapp said he knew nothing about mediation meetings.
He said, "I heard about them the first time today."
Goldenberg changed the subject to crystal ball and security blanket.
Stack said, "My understanding was that they were not asking me to declare that it is not discoverable."
He said, "They were asking me to declare that just by virtue of them exchanging it in this mediation, it doesn't mean make it discoverable if it wasn't already discoverable."
He said, "They just don't want something that was not discoverable to become discoverable by virtue of their exchange in their private mediation."
Philip Graham of Clayton, Missouri, representing other Hartford residents in a proposed class action, said, "They are talking about presumably every document they exchange."
He said, "Here we are just getting a request for some type of a global order closing off any discovery of these materials."
Stack said, "You keep talking in circles, gentlemen."
He said they kept telling him the defendants would take something discoverable and make it non discoverable by using it in mediation.
He said, "That is not what I'm hearing them ask me."
He said, "How are they going to get to talk about okay, who is going to pay what if we're going to settle with all these plaintiffs?"
Goldenberg said, "Who is going to pay what goes directly to the issue of liability or non culpability in the problems that exist in Hartford."
Stack said, "And anything that you can discover about that issue, you are still going to be able to discover in spite of the fact that they exchanged them with one another."
Goldenberg said, "Then I go back to – well, we are talking in circles."
He said the defendants should draft an agreement among themselves with liquidated damages for giving something to the other side.
Nassif said, "Judge -"
Stack didn't hear him. Instead he studied Nassif's motion.
He looked up at Knapp and said, "Bill, why is Apex not in here?"
Before Knapp could answer, Nassif made matters worse.
He said, "Apex did participate in the mediation up to a certain point."
He said, "There became an issue that I'm not thoroughly familiar with about Apex's willingness to sort of commit enough money to continue in the game, sort of like a poker game, how much money they were willing to throw in."
He said, "They were given some information and asked to get back to us."
Knapp said he was present at the first mediation.
He said, "The defendants attempted to place conditions. Not the plaintiffs, the codefendants attempted to place conditions on Apex's ability to participate in negotiations."
He said, "Since we have not apparently met their conditions, they have now excluded us from subsequent mediation."
Stack told Knapp they could not exclude him and told Nassif to see to it.
Stack did not listen to another word about Nassif's motion. The hearing screeched to a stop.
Stack has seen a settlement go sour before.
Last year, Goldenberg brought him a tentative agreement that would solve everybody's problems through a new class action suit.
Stack approved the settlement, immediately but tentatively.
The settlement broke down in February and Stack resorted to mediation.
While the oil companies try to allocate the costs of the suits, they also try to allocate costs of a cleanup in progress at Hartford.
They have spent millions and will spend millions more under a consent order they signed with the U. S. Environmental Protection Agency in 2004.
They undertook the job without knowing how they would divide the cost.