• November 18, 2015
Judgment of Solomon by Nicolas Poussin

Judgment of Solomon by Nicolas Poussin

Update (November 18, 2015): Following up on the issues raised in the Bacon Battle below…. So, can you depose the corporate C.E.O. of a huge corporation in a relatively small commercial dispute? Answer: That depends. Does the C.E.O. have “unique knowledge relevant to the issues in [the] case and [an adversary] has not been able to obtain the same information through less intrusive means (i.e., through other witnesses or discovery requests)”? Then, yes, but maybe with time limits in recognition of the big-shot’s schedule and, maybe, his limited involvement in the dispute.

Can you depose the opposing lead lawyer in the pending litigation? Answer: That depends. “[I]nquiry into [the adversary trial lawyer’s] personal—non-privileged or non-work product protected—factual knowledge” regarding, say, a patent at issue (which the lead lawyer prosecuted before the patent examiner) up to the filing of the litigation could be fair game but maybe with time limits in recognition of the hot-shot’s dual roles and, maybe, his limited involvement in the dispute…

U.S. Mag. Judge Becky R. Thorson’s (D. Minn.) decision sounds pretty Solomonic to me…640px-Pig_in_a_bucket

Original post (November 2, 2015) (under headline: On The Implications of Recent Bad News for Bacon): Regular readers of Minnesota Litigator are familiar with “the Bacon Battle” that has been sizzling in Chef Ericksen and Sous-Chef Thorson’s skillet for the past year-and-a-month (better known as United States District Court  Joan N. Ericksen and U.S. Mag. Judge Becky R. Thorson (D. Minn.)).

But, last week, the World Health Organization (“WHO”) sent shock waves through processed meat world with the news that:

Cooking improves the digestibility and palatability of meat, but can also produce known or suspected carcinogens, including heterocyclic aromatic amines (HAA) and PAH. High-temperature cooking by pan-frying, grilling, or barbecuing generally produces the highest amounts of these chemicals…Of the 15 informative case-control studies considered, seven reported positive associations of colorectal cancer with high versus low consumption of red meat. Positive associations of colorectal cancer with consumption of processed meat were reported in 12 of the 18 cohort studies that provided relevant data, including studies in Europe, Japan, and the USA…Overall, [researchers] classified consumption of processed meat as ‘carcinogenic to humans’ …on the basis of sufficient evidence for colorectal cancer. Additionally, a positive association with the consumption of processed meat was found for stomach cancer. The Working Group classified consumption of red meat as ‘probably carcinogenic to humans.’

As an aside, I need to know what data prove that cooking improves the palatability of meat.

​The researchers gloss over this as if it were a given, offering nothing by way of evidence. According to these culinary ignoramuses, carpaccio and tartare enthusiasts do not exist (not to speak of the tiny pork tartare gourmet, Trichinella Spiralis). And I bet you anything that the studies relied on were totally anthropocentric in nature; most non-human meat-eaters show a strong preference for uncooked meat.

Whether cooking improves “digestibility” is a whole other question the researchers state without offering any proof. (I feel bad for the test subjects whose data support that finding.)

But I digress. Seriously, bacon sales are sure to drop as a result of this new information. Bacon is at least slightly less addictive than cigarettes so an association with between pig butt and human butt cancer will probably result in a few cancelled B.L.T. orders worldwide. Could it be, then, that there is less booty bounty at stake than Unitherm might have thought when it launched the Unitherm v. Hormel Bacon Battle? Unitherm and Hormel certainly have invested and continue to invest a lot of money in this lawsuit, which has been contentious and shows no sign of letting up.


In the latest flurry of discovery battles in Unitherm v. Hormel, Hormel seeks to depose Dennis Brown, Unitherm’s lead lawyer in the lawsuit. This tactic is not normally kosher. In the restaurant context, this is the equivalent of a customer demanding that she be allowed to dress down the chef directly. The chef is normally holed up in the kitchen behind the scenes and she may not be disturbed absent “exceptional circumstances.” In the linked memorandum of law, Unitherm sets out the “exacting standards” that must be met before a litigant can depose the other side’s lawyer.

As a trial lawyer who has never had to sit for a deposition or testify under oath, I agree with every effort being made to avoid this horrifying prospect. Deposing trial lawyers is an outrage.

Not to be outdone in litigation irritation department, Unitherm has countered by seeking the deposition of Hormel’s CEO, Jeffrey Ettinger. Hormel objects, citing the “apex doctrine,” which “protects senior or high-level executives from having to take time away from their busy schedules to sit for a deposition unless it is shown that the executive possesses unique or special knowledge that cannot otherwise be obtained.”

This is a kind of sop to “the 1%” where we all must kow-tow to executives’ “busy schedules” while executives may ignore our busy schedules. Special protection for corporate executives is an outrage.

(NOTE TO SLOPPY, STUPID, OR THOUGHTLESS READERS: my different reactions to the two disputes is intentionally ironic and insincere.)

Who cannot acknowledge the opportunistic harassment potential in deposing trial lawyers or leaders of enormous corporations who are, after all, responsible for international multi-billion dollar operations and tens of thousands of employees?

We will have to wait and see whether Hormel can make the case that hassling Unitherm’s lawyer is warranted and whether Unitherm can make the case as to C.E.O. Ettinger.

Unfortunately for us, Hormel’s response to Unitherm’s motion to quash the subpoena of attorney Brown was filed “under seal” (non-public) but, whatever Hormel has to say, the Court’s decisions on both motions, most probably and fortunately, will be matters of public record.

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