MOUNT VERNON – Appellate judges stopped a St. Clair County trial against metal recycler Cerro Flow after Chief Judge Andrew Gleeson granted judgment on liability and prepared to determine damages.
Cerro petitioned the Fifth District for emergency relief on Friday, July 12, the second day of a trial that would likely have lasted a month.
Fifth District judges stayed it on Monday, July 15.
It started on July 11, as the first trial after 10 years of litigation over injuries and property damage from pollution.
More than 11,000 persons claim damages, not as a class but as individuals.
Their lawyers chose to try the claims of plaintiff Willie Louis Hudson first.
On July 10, Hudson’s lawyers accused Cerro of withholding information.
They moved to sanction Cerro by granting judgment on liability.
On July 11, Gleeson presided over jury selection.
On July 12, he ordered Cerro to produce information to Hudson.
Cerro moved to stay the trial, arguing that production would take time.
According to a transcript of proceedings, Gleeson said to Cerro counsel Mark Kircher of Milwaukee, “You’re not going to comply with my order is what I read, is that correct?”
“What you ordered us to do we could not physically do,” Kircher said. “Beyond that, the materials that you ordered produced undoubtedly contain information it would be illegal for us to provide. We’ve cited case law to your honor that the appropriate remedy at this point is a stay or a continuance.”
Gleeson said, “That’s your suggestion.”
Kircher said it would be reversible error to invoke the harshest sanction without employing a less punitive alternative.
Gleeson said, “I gave a less punitive alternative this morning, to produce the documents.”
Kircher said that would vitiate attorney client privilege.
Gleeson said, “If you’re going to unilaterally withhold information that’s been requested of you in the discovery process you have to provide a privilege log.”
Kircher said, “There are exponentially more records today than there ever were in the past, and for that reason a privilege log which in the past might have been dozens of pages long, now would be thousands of pages long…We are endeavoring to prepare one.”
Gleeson said, “I think I’ve been pretty clear for I don’t know, a year, that we’re going to try these cases…I’ve already picked the jury. I’m summoned back to the courtroom to deal with this particular issue. I’d just assume you guys disclose everything you’re supposed to. Lay it out on the table, try your case, and let 12 people decide this in the way it’s meant to be done.”
Kircher said, “I respectfully suggest you’re being guided into error by plaintiffs.”
He said jurors were clearly given to understand that there would be competing liability theories and there would be a claim and a defense.
Gleeson gave him until noon Saturday to comply with his order.
Kircher said they wouldn’t even be done copying the file.
“We’re not authorized to turn over the entire body of privileged information to the other side because it violates the attorney client privilege and likely many others,” Kircher said. “If it’s your honor’s inclination to issue the terminating sanction, then do it now because it’s not going to get done by noon tomorrow.”
Gleeson struck Cerro’s pleadings and said, “We’ll proceed on Monday morning with the damages only trial.”
Cerro’s appeal notice shows a time stamp of 7:43 p.m. on that Friday.
Fifth District judges found it on Monday morning and granted it that day.