The opinion of the court was delivered by: JAMES B. ZAGEL
The perfect tragic figure, according to Aristotle, is "a man not preeminently virtuous or just, whose misfortune, however, is brought upon him not by vice and depravity but by some error of judgment. . . ." Aristotle, The Poetics 238 (Friedrich Solmsen ed. & Ingram Bywater trans., Modern Library 1954). The great heroes of tragedy conformed to the Aristotelian conception of a great man whose unkind fate is precipitated by a tragic "flaw" in his personality. Thus, Othello's downfall was the result of his own jealousy, MacBeth fell victim to his blinding ambition, Lear's insecurity prompted his misfortunes, and Hamlet's tragedy was that of a man who could not make up his mind. John Messina fits the mold of the great tragic figure. His is the tragedy of an attorney who could not keep a confidence.
The confidences Mr. Messina could not keep were protected by court orders of confidentiality. Mr. Messina's past behavior played a pivotal role in the granting of these orders, since it appeared that he would go to any lengths to try his case on the courthouse steps rather than in the courtroom itself. That Mr. Messina sincerely, even fervently, believed in the unremitting badness of the defendants in this case is beyond doubt, as was his willingness to hurt them by disseminating information for purposes of damaging them outside the walls of the courtroom. The orders of confidentiality were meant to prevent Mr. Messina's misuse of the litigation to pursue his own agenda. But the evil to be prevented by the orders was the evil that actually ensued.
Undeterred by repeated court warnings, possible harm to his client's interests, and, apparently, his own fate, Mr. Messina continued to disclose protected information. His propensity to reveal court protected secrets is the Aristotelian flaw which precipitated his present predicament: possible sanctions for contempt and for violations of Rule 11. Mr. Messina stands accused not only of violating this court's orders of confidentially, but for failing to appear in court as ordered and for making misrepresentations to the Seventh Circuit Court of Appeals. Since the "first essential, the life and soul, so to speak, of Tragedy, is the plot," id. at 232, some history is in order.
Mr. Messina represented the plaintiff, Grove Fresh Distributors, Inc., in two separate but related suits filed against competing orange juice manufacturers for allegedly engaging in a conspiracy to unlawfully adulterate and misbrand orange juice in violation of various federal laws.
Grove Fresh filed the first suit against Everfresh Juice Company in 1989 (Grove Fresh Distributors v. Everfresh Juice Co., No. 89 C 1113)
The genesis of the second suit ( Grove Fresh Distributors, Inc v. John Labatt, Ltd., 888 F. Supp. 1427) began when Mr. Messina concluded that Grove Fresh had claims against John Labatt, Ltd.--the parent of Everfresh--similar to its claims against Everfresh. Mr. Messina sent Everfresh's counsel a demand letter seeking payment of claims on 23 August 1990. The letter gave notice that Mr. Messina would file a new complaint on behalf of Grove Fresh if Labatt did not settle.
On 24 August 1990, Labatt presented an emergency motion to seal the new complaint described in Mr. Messina's letter, arguing that the new complaint was an illegitimate attempt to amend the complaint in case No. 89 C 1113 (then 18 months old and nearing the close of discovery). Contending that Grove Fresh's motive in filing this new complaint was "to evade and disregard the earlier rulings made by this Court" in case No. 89 C 1113 on procedural issues and the discovery schedule, Labatt prayed for an order "requiring Grove Fresh to immediately submit its new complaint to this court under seal."
On 29 August 1990 I granted the motion to seal the complaint for case No. 90 C 5009. A key reason behind this decision was Mr. Messina himself. After presiding for the previous eighteen months over case No. 89 C 1113, I was familiar with certain tactics employed by Mr. Messina which I believed were questionable if not reprehensible. Specifically, I was wary of Mr. Messina's repeated attempts to beat the defendants into submission by disclosing materials previously designated as confidential to generate unfavorable publicity for them
I had no reason to believe Mr. Messina would change his methods and every reason to suspect he would attempt to try his latest suit on the courthouse steps as well.
Given the relatedness of the two cases and their litigants, and my familiarity with both, I felt it unnecessary to reiterate in my sealing order for the new case what seemed painfully clear from the lessons, and record, of No. 89 C 1113. The minute order granting the seal in No. 90 C 5009 therefore simply stated:
Defendants' motion to file case under seal is granted. The complaint and all subsequent pleadings shall be filed under seal until further order of court.
Three days later I heard arguments regarding a motion by Grove Fresh to lift the seal. After a brief colloquy, I stated that the "motion to lift the seal is denied without prejudice to you raising it after we deal with whatever pretrial motions there are with respect to dismissing the complaint." I later denied various motions to dismiss the case, but did not explicitly refer to the emergency motion to seal.
On 1 May 1991 I signed a stipulated protective order "in order to provide protection of confidential and proprietary information and to facilitate discovery."
As Grove Fresh's attorney at the time, and therefore a signatory to the order, Mr. Messina agreed that "documents designated as 'confidential' shall be used only for the preparation and trial of this lawsuit, and for no other purpose except as may be required by law or court process."
On 9 October 1991, intervenors in the case moved to vacate the seal. Ordering a fresh round of briefs on the seal's merits, I offered the defendants another chance to justify the seal and identify what it wanted to protect. On 29 November, Everfresh argued that the seal
was originally ordered in the 90 case at Everfresh's request because plaintiff had threatened to file the action in the public record, if Everfresh did not pay a multimillion dollar settlement, with unsubstantiated scandalous allegations that would damage the reputation of Everfresh and others. Plaintiff's pleadings also incorporate and attach protected confidential information obtained through discovery. Had this court not placed the 90 case under seal, the unsubstantiated, scandalous allegations and information that were subject to the protective order would have been improperly disseminated into the public realm.
I agreed with the premise of this argument. On 20 November 1992, in an order partially granting intervenors' motion, I stated on the record that "the seal order in 90 C 5009 served to effectuate the purposes of the protective order entered in the earlier case," No. 89 C 1113.
Thus did I seek to incorporate by reference the protective order in the older case as a justification for the seal in the newer one.
I also put into the record my feeling that lifting the seal on the entire case was problematic, because the existence of the seal may have led the parties to believe that they could file papers containing discovery material that would not otherwise properly be put before the court. Another problem with lifting the seal stemmed from the nature of the complaint. As I said in the order,
On 21 January 1993, Grove Fresh discharged Mr. Messina as its attorney in the Grove Fresh litigation. On 29 April 1993, case No. 90 C 5009 was dismissed with prejudice pursuant to settlement.
Then, on 1 June 1993 intervenors renewed their motion to vacate the seal. This was denied. Intervenors appealed parts of this denial, which included the issue of whether this court should have issued a decision on the record justifying the seal.
In remanding the case back to me, the Seventh Circuit reiterated that it had yet to find "reversal per se appropriate" where a court had not made a point of articulating its findings and reasoning for entering an order limiting access. Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir. 1994). The Court of Appeals asked "only that in reaching its decision in this matter on remand that the district court specify the basis for its conclusions." Id. at 899. This decision was issued on 12 May 1994.
Continuing disclosures by Messina in apparent violation of the orders of confidentiality, and the motions that would inevitably follow to try and rein him in, gave me ample opportunity to follow the Court of Appeals request and elaborate for the record the seal's rationale. The first chance I had to do this was actually one month prior to the issuance of the Seventh Circuit's opinion. On 8 April 1994, acceding to Mr. Messina's request to clarify the seal order's scope, I discussed the reasons behind my orders of confidentiality at some length:
Mr. Messina has not always been clear in his descriptions to me and perhaps even in his own mind as to what is in the public record and what is not otherwise in the public record and what had been discovered in the course of discovery and which is sealed here.
. . . My past experience with Mr. Messina leads me to believe that I will then engage in a lengthy set of hearings in which we will have to carefully patrol the border between what came out of the court file and what's in the public arena, and I don't want that to occur. I don't think it's good for the case. I don't think it's good for Messina. I think it will increase everybody's costs.
So my answer to you is that I would advise Mr. Messina not to speak about the case and what might possibly transgress the seal with anybody until we resolve the question of his alleged prior violation of the seal order.
To safeguard undue prejudice to anyone's rights, I laid out a process by which Mr. Messina should proceed before making any future disclosures:
Now I recognize that there may be circumstances in which there is some urgent need for him to consult, and if that occurs, it would be appropriate for him to come in with a petition saying I want to consult with so and so. In fact, I don't even think he has to say who it is he wishes to consult with, but I think he does have to tell me what it is that he wishes to say, and it would be very helpful if he comes in with such a petition, he delineates with chapter and verse what his public record source of these statements are.
So, basically it would be best if he spoke to no one about these matters until we resolve the questions of his liability for violating the seal on the one alleged--or two or three alleged violations that have already occurred without creating a problem for possible violations that I may also have to deal with. And the safety valve that I think I'm giving is that if he wants to show exactly what is in the public record and indicate that this is exactly what he wants to say, that's possible too, because I recognize it may be necessary for him to speak more quickly.
It also is a reason why we ought to move as expeditiously as possible to get at least the question of breaking the seal resolved.
And the profound difficulty here is it's very difficult to erase from your mind what it is that you already know, and it's quite likely--at least it's quite risky that Mr. Messina may think that he's speaking from the public document, but because he hasn't laid out very carefully what he learned from each source, he's going to transgress the order and then we're going to have arguments about exactly what does fall within disclosure and what doesn't fall within the disclosure, and I don't want to get involved in that.
I sought to put Mr. Messina on his guard by giving him notice of the consequences that would follow any future transgressions:
But the fact of the matter is I can't assign anybody to follow Mr. Messina around, and what Mr. Messina says is what Mr. Messina says. What I am doing is I'm granting your motion for clarification and I'm giving you and your client through you a warning about the further difficulties that might very well be created.
To simply say, look the judge said you can talk about whatever it is you learned independent of this case is very, very cold comfort for Messina; and were I in his position I would not be charging ahead saying, well, thank God that dispute is over, because in my judgment given both my knowledge of Mr. Messina and what happens in other cases in which he's not involved, it just means the possibility that we're going to have more and expensive hearings.
Even Mr. Messina's then counsel recognized the danger in further disclosures when he expressly agreed with the propriety of increased sanctions:
THE COURT: What happens if he [Mr. Messina] breaches it [the sealing order] a second time?
MR. MINER: It would be appropriate to impose a more severe sanction on him.
MR. MINER: I don't have any doubt of that.
It was not long after this that Mr. Messina once again made disclosures which appeared to violate my orders of confidentiality, and did so, moreover, without following the specific procedure I had laid down on 8 April. Thus on 27 October 1994 I reiterated for the record the relationship between the orders and Mr. Messina's own behavior:
. . . The principal basis for the decision [to impose the sealing order] was the that I had litigation before me in which I had a lawyer for the plaintiff, Mr. Messina, who was convinced--I don't know about the justice of his own client's cause, but convinced beyond a shadow of a doubt, indeed the possibility of a doubt, of the badness of the defendants. And it also seemed to me that Mr. Messina was willing to use not the force of the law, but the force of public relations to beat the defendants into some sort of submission . . .
But most of what we could do here depends on the fact that lawyers go about lawyer's business, and they serve their clients rather than their own principal concerns, and that they generally obey orders of court and custom and practice of lawyers regarding discovery materials.
I gained an impression of Mr. Messina very early on that he was not likely to follow the well trod paths of custom. Indeed, I thought Mr. Messina might in fact be reluctant to obey court orders. One of the reasons that the sealing order was so broad was my concern that Mr. Messina would ignore any order that was not broad.
But although the case was unsealed, I was still faced with documents protected by a valid protective order, as well as confidential materials filed in reliance of the seal. My in camera inspection revealed that for some of these materials continued confidentiality was appropriate.
I therefore ordered the particularized redactions of certain words, phrases, names, etc., while allowing public access to most, if not all, of the documents in which the redactions were made.
In response to Mr. Messina's conduct during the course of the litigation, American Citrus Products Corp., and John Labatt Ltd., the defendants in the case, jointly petitioned the court for a finding of contempt and for other sanctions against Mr. Messina. On 3 February 1995, a hearing was held to afford Mr. Messina an opportunity to respond to the following charges:
First, that Mr. Messina is in contempt of court for repeatedly violating the seal and protective order of the 1990 case by his disclosures of confidential discovery materials in a brief filed with Seventh Circuit; in a letter to counsel for intervenors; and in a conversation to a reporter for the New York Times.
Second, that Mr. Messina is in contempt of court for failing to appear before me when directed to do so, a nonappearance for which I had previously issued a rule to show cause.
Third, that Mr. Messina is subject to Rule 11 sanctions for allegedly making false or misleading representations to the Court of Appeals regarding his status as Grove Fresh's attorney.
Defendants jointly pray that Mr. Messina be substantially fined, required to reimburse them for legal fees and costs incurred from his actions, ordered to refrain from further comment, and required to deposit with the court a substantial sum of money which would be forfeited by subsequent disobedience.
Contempt: Civil and Criminal
"The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches." Young v. U.S. ex. rel. Vuitton et Fils S. A., 481 U.S. 787, 796, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987). Without such authority, the courts would be helpless in the face of open defiance of their orders:
If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls "the judicial power of the United States" would be a mere mockery.
Id., quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 55 L. Ed. 797, ...