a Delaware corporation, )
)Judge Leinenweber
)Magistrate Judge Keys
an Illinois corporation,)
Intervenor. )


THE CLERK: 97 C 6313, Sunbeam Products v. American Medical Association.

MR. AUSTIN: Good morning, Judge. Brent Austin on behalf of Sunbeam.

MR. GRAHAM: Good morning, your Honor. David Graham on behalf of the American Medical Association.

MR. CLINTON: Good morning, your Honor. Ed Clinton on behalf of the Association of American Physicians & Surgeons.

MR. AUSTIN: Judge, this motion is up on Sunbeam's motion to alter or amend the Court's November 3rd ruling, where the protective order in the case was vacated. The motion to alter or amend asks to have the protective order restored as to Sunbeam because Sunbeam had an agreement with the association that Mr. Clinton represents that they were not seeking to remove the protective order as to Sunbeam.

At the last hearing there were some issues that counsel for the AMA had to discuss with me. Those have been worked out. The AMA has no objection. Mr. Clinton has already stated that his client has no objection. Therefore, I would ask that our motion be granted.

MR. CLINTON: Your Honor, we do have an objection to the motion. When I initially entered into my agreement with Mr. Austin I was unaware that the parties had reached, essentially, a new agreement to return the documents in the litigation. What especially concerns my client is the sentence in the joint report filed by the parties on November 18th which says: (reading)

"The parties will, of course, also abide by their ethical obligations to the extent applicable to preserve the originals of their own documents." That seems to be an ambiguous sentence which leaves open the possibility that, once these documents are exchanged, that they will decide on their own that there are no such ethical obligations and that there will be no documents remaining. So, in other words, the documents will disappear. That's the concern that I have.

MR. GRAHAM: Your Honor, David Graham on behalf of the AMA.

On this particular part we are a little bit off to the side of this but there is another motion that this relates to. So, let me comment briefly.

First, your Honor has already ruled once with regard to the American Medical Association. I believe the ruling should be no different with regard to Sunbeam. There is absolutely no basis whatsoever for believing that the parties are going to disregard whatever ethical obligations they have. You have had our representations in that regard. You previously refused to issue any order in terms of that for precisely those reasons. As we pointed out, there is no basis for that.

"Indeed once the case has been dismissed and rights to appeal have lapsed, the parties are under no obligation, legal or practical, even to preserve discovery material they have obtained,"

a way of saying that that local rule had no applicability. That is the same situation here. The local rule has no applicability.

We pledged to your Honor in terms of the fact that we are cognizant of the ethical obligations we have and Sunbeam has done the same. Frankly, there is absolutely no basis for allowing this interloper to continue to occupy the time of this Court and of the parties with its own private agenda.

The AMA's counsel has already represented that they will take care of their documents. We should be out of this.

THE COURT: Any reply?

MR. CLINTON: Yes. Essentially, what they said is we will observe our ethical obligations "to the extent applicable," whatever that means. The problem is that we don't have a clear understanding with them whether they will produce documents.

THE COURT: Well, they certainly would be running a risk, wouldn't they, if they had a bonfire and threw all the stuff in the bonfire?

MR. CLINTON: I hope so but I just don't know.

THE COURT: They would run a double risk. Everything would be interpreted against them in a subsequent trial. It would be pretty dumb to do that/

I am aware of our Local Rule 18. That does permit, under certain circumstances, an interloper, as has been referred to, to come in and get documents at its own cost but that is generally, I think, applicable to the Chicago Sun-Times and the Chicago Tribune. When a case is going on, it would usually be a criminal case, and there are some exhibits that the press wants to get and put on television. So, they set up that rule. I don't think it is applicable here as a form of discovery.

Now, it seemed to me that, if your client has a claim against the AMA -- and they may very well have; I have no way of knowing that -- they should sue the AMA and then proceed with discovery.

Now, I think you appropriately came in to court here to see relief from the protective order because that protective order would, presumably, be applicable if you do file a lawsuit and try to proceed with discovery. Now, I have removed that protective order. If you see fit to bring some kind of a proceeding against the AMA, you are certainly free to seek whatever discovery unfettered by my protective order. They may, of course, seek a protective order in that suit. But it seems to me you have done all you can do in this suit, which is to get that thing out of the way.

So, the ruling will be -- again, counsel are aware of their ethical obligation. They certainly would, probably, be somewhat reluctant to have a bonfire on the evidence. I am certainly going to take them at their word as officers of the court. Apparently your only disagreement with Sunbeam's request to have the protective order remain in effect against that was based on this ambiguity, as you saw it. So, I am going to, based on your agreement with Sunbeam, grant Sunbeam's motion and alter and amend my previous order to leave in place to the extent it is applicable to Sunbeam's documents.

What else was there? Anything else?

MR. GRAHAM: I think your Honor has ruled on it tacitly but, technically, today there was also AAPS's motion to restrain AMA and Sunbeam from transferring documents among each other.

THE COURT: Certainly there is no protective order. So, they are certainly free to exchange documents and do whatever they want. They are aware of their ethical obligations.

Certainly, if you file suit against the AMA, you are free to subpoena Sunbeam and obtain any documents you desire subject, of course, to -- I guess you might have to come back, if you wanted Sunbeam's documents, because of the fact that that protective order, at least as far as Sunbeam, is still in effect.

So, I guess that terminates it.

MR. GRAHAM: I believe so.

MR. AUSTIN: Thank you, your Honor.

MR. GRAHAM: Thank you, your Honor. MR. CLINTON: Thank you, your Honor. (WHICH were all the proceedings had in the above-entitled cause.)