A. IDENTITY OF PETITIONER The Petitioner, Donald R. Earl, asks this court to accept review of the decision or parts of the decision designated in Part B of this motion. B. DECISION On August 22, 2008, the Superior Court of Jefferson County, Washington denied the Petitioner’s CR 60 motion to vacate the judgment entered on February 15, 2008, the Petitioner‘s motion to produce discovery if the CR 60 motion was granted, the Petitioner‘s oral motion to restrain further destruction of evidence, and granted Menu Foods motion for attorney fees. C. ISSUES PRESENTED FOR REVIEW Issue 1: Menu Foods obtained an order in Federal court, which in part permitted the destruction of evidence material to cases not part of that action. In obtaining this order, Menu Foods represented to that court that there were no parties with an interest in testing the pet food evidence slated for destruction. Menu Foods then used that order as prima facie evidence that discovery in a multitude of unrelated actions should be denied. Did counsel for Menu Foods Income Fund engage in misconduct in the course of obtaining orders permitting destruction of evidence material to civil and criminal investigations, pending or potential? Issue 2: Does any court have discretion to permit destruction of evidence material to a multitude of civil actions, pending or potential, and criminal investigations, pending or potential, which are not subject to that court’s jurisdiction? Issue 3: Does an order as described in Issue 2 violate the due process rights of a large class of pending or potential litigants and/or damage the public interest in seeing just punishment for unlawful acts? Issue 4: The Plaintiff has sought discovery of the evidence in question, in strict compliance with rule and law, in the course of exercising the Plaintiff’s constitutionally protected right to due process. Does the liberal granting of CR 37 sanctions chill a litigant’s constitutionally protected right to pursue legitimate discovery that is within the letter and intent of relevant rule, law and precedent? Issue 5: Does an attorney engage in professional misconduct, pursuant to RPC 3.4, in counseling destruction of evidence while any litigation relevant to that evidence is pending or immediately foreseeable? Issue 6: On CR 60 motion, the Plaintiff brought issues not previously raised in the trial court, pursuant to the requirements of RAP 7.2(e). In holding the motion was moot, due to the destruction of the discovery material sought, does a court abuse its discretion in failing to vacate an order, for cause shown, when doing so alters the status quo and the ability of the aggrieved party to pursue otherwise permitted remedies? Issue 7: Does a trial court abuse its discretion in failing to issue an order to restrain further destruction of evidence when litigation relevant to discovery of that evidence remains pending or potential? Issue 8: Menu Foods sought protection orders in a multitude of actions across the US and Canada. RPC 3.3 requires candor toward the tribunal. Does an attorney engage in professional misconduct in failing to disclose the existence of similarly situated parties with an interest in obtaining discovery on material subject to a protection order? Issue 9: Does the destruction of relevant evidence have a broad impact on the rights and privileges of a large class of citizens harmed by products produced by Menu Foods and the ability of those citizens’ to exercise their right to due process in current or foreseeable litigation? Issue 10: Menu Foods had been storing pet food evidence for nearly a year before filing emergency motions to permit its destruction. Menu Foods has a third of a billion dollars in annual sales and stores product as a normal part of the expense of its daily operations. Because of their size, large corporations may potentially claim excess cost burden on many discovery issues, particularly in relation to individual actions. When discovery issues essentially amount to a disparity in wealth between a large corporation and an individual plaintiff, do orders entered on that basis violate the plaintiff’s right to equal protection under the Fourteenth Amendment of the US Constitution? D. STATEMENT OF THE CASE On December 18, 2007, in US District Court, a decision was entered to limit the retention of certain pet food evidence in the possession of Menu Foods. A motion to amend the order was filed on April 10, 2008, which provided for the retention of an estimated 1.7 million containers of recalled pet food. No provision was made in that order to retain unrecalled pet food samples, which are material to Earl‘s case and numerous other similar cases across the US and Canada. Menu Foods entered into negotiations with plaintiffs in the Federal action beginning in October of 2007. Menu Foods did notify parties in other pending actions that it intended to seek the destruction of evidence material to those cases until after it obtained the Federal order based on its misrepresentations to that court there were no parties with an interest in testing the unrecalled pet food. After waiting until 5 months after negotiations began in the Federal action, Menu Foods pushed motions through the Court of Appeals, and subsequently the trial court, claiming a state of emergency existed and that it would be prejudiced if Earl was allowed time to respond to the motions. The record in the Federal action shows that at the time Menu Foods claimed it would be prejudiced by a delay of as little as one week, it was in fact engaged in secret negotiations with plaintiffs in the Federal action to amend the December 18, 2007 order, that those negotiations would not be concluded for two more months, and that at the time Menu Foods claimed it would be prejudiced by a one week continuance due to storage costs, it was in fact holding inventory voluntarily while engaged in negotiations with plaintiffs in the Federal action. A document filed by Menu Foods, the Mifflin Declaration, (Appendix A) shows Menu Foods leveraged the order obtained ex parte in Federal court as a basis for denying discovery of unrecalled product in a multitude of cases across the US and Canada. The declaration shows disposal of the evidence was completed on July 29, 2008. It is not known when the evidence destruction efforts began, or how much had already been destroyed at the time Menu Foods began filing protection orders in cases across North America. Earl was not permitted to view the facilities to determine the condition of the evidence, or if the evidence was still being held. Federal law makes a distinction between adulterated products that have never left the possession of a manufacturer, and products that have entered interstate commerce. The samples Earl sought to obtain are those where the chain of custody shows it was the actual pet food offered to consumers by retailers. Earl previously filed a motion for discretionary review related to this matter, which is currently pending final resolution in this Court, case number 81674-3. Earl filed the CR 60 motion in the trial court in order to meet the requirements of RAP 7.2(e) that post judgment issues must be heard by the trial court before they may be presented for review. Section 3 of the Statement for Direct Review is incorporated by reference herein. E. ARGUMENT WHY REVIEW SHOULD BE ACCEPTED Earl seeks review of this matter subject to the provisions of RAP 2.3(b)(2): "The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act" Issues 1, 5 & 8: Menu Filed the “Mifflin Declaration in the trial court (Appendix A). In that document, Menu Foods describes how it used the Federal order to obstruct discovery in a multitude of cases across North America. It describes how numerous plaintiffs, similarly situated to the Plaintiff in this case, sought to protect their right to conduct discovery on the body of evidence known as unorganized inventory, and, that in all cases where plaintiffs contested the destruction of this critical, relevant evidence, the basis for denying those requests was the order obtained in Federal Court, which was obtained through Menu Foods representation to the Federal Court that, “This Unorganized Inventory is of no discernable use to any party interested in future testing of the product.” The declaration shows that upon obtaining this order, Menu Foods immediately initiated litigation to prevent discovery of this evidence, in a multitude of cases, where contrary to representations made to the Federal Court, Menu Foods clearly knew plaintiffs intended to obtain this evidence on discovery. In all of these cases, Menu Foods states the orders obtained were based on the Federal order, which was obtained initially through Menu Foods representations to the Federal Court that parties to these actions, including the Plaintiff, did not exist. Furthermore, Menu Foods withheld information from the Plaintiff and the trial court as to the existence of these other individual actions. Not only was the Plaintiff’s request for discovery reasonable based on the needs of this individual action, accommodations could easily have been made to coordinate and consolidate the sought after discovery with these other actions. RPC 3.4 defines professional misconduct on matters of discovery: “FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;… (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;… Comment [1] The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. [2] Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen.” (emphasis added) RPC 8.4 provides additional guidance on misconduct: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice;” By the plain language of the Rules of Professional Conduct, counsel for Menu Foods engaged in misconduct in representations it made in obtaining the protection order and counseling Menu Foods to destroy the evidence while litigation was pending in this and other cases. In “In re Disciplinary Proceeding Against Kuvara, 149 Wn.2d 237”, citing, “In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 766, 801 P.2d 962 (1990)”, the court ruled: "[C]onduct deemed prejudicial to the administration of justice has generally been conduct of an attorney in his official or advocatory role or conduct which might physically interfere with enforcing the law." Issues 2 &3: In Menu Foods official financial report released on May 30, 2007, Menu Foods states: “Lawsuits have been initiated against the Fund and certain of its subsidiaries in the United States and Canada, which seek to recover damages on behalf of the named plaintiffs and a purported class of affected pet owners. Furthermore, the U.S. Food and Drug Administration is conducting an investigation of the situation. The offices of two United States' Attorneys have informed Menu that it is the target of criminal investigations for possible violations of the U.S. federal Food, Drug and Cosmetic Act. It is possible that additional actions or investigations may arise in the future.” Adulteration of food, including pet food, and the sale and transport of adulterated food, including pet food, is a criminal offense under both Washington State and Federal statutes. Destruction of evidence is a criminal offense under both Washington State and Federal law. New evidence presented to the trial court on CR 60 motion shows a composite of three more samples of pet food produced prior to the recall period by Menu Foods tested positive for cyanuric acid (Appendix B). This is in addition to a pre-recall sample of pet food Earl had tested, which showed similar adulteration (Appendix C). On oral argument, (Appendix D) Earl described a report released by UC Davis (Appendix E), which showed the epidemic pet poisonings could not have been caused by melamine alone and that substantial quantities of cyanuric acid were required to produce the crystals which proved lethal to an estimated quarter million pets. The body of evidence Menu Foods destroyed would have shown Menu Foods was illegally spiking pet food with cyanuric acid during most or all of 2006, and that in many cases the cyanuric acid being used was cross contaminated with other toxins such as acetaminophen, which is lethal to cats. In addition to the issues related to how important this evidence was to pending civil actions, civil courts do not have the authority to approve destruction of evidence material to criminal investigations. Issue 4: Subsequent to the August 22, 2008 hearing, Menu Foods has submitted a motion for attorney fees totaling $8355.59. Under the plain language of rule, law and related precedent, Earl has at all times acted on the good faith belief that he is lawfully entitled to obtain discovery on the evidence in question. At this late date, Earl is dismayed at the decisions that have been entered in this matter that on their face are at odds with the letter and intent of the rules which govern the process and the facts of the case. In essence, if these sanctions are imposed, they will amount to nothing more, and nothing less, than punishing the innocent victim of corporate malfeasance in the exercise of his right to due process. Issue 6: Earl first learned Menu Foods had disposed of the evidence in question in its response to the motions filed in the trial court. The trial court made no rulings on the motions other than to endorse Menu Foods’ response across the board. Menu Foods asserted the CR 60 motion was moot as it had destroyed the evidence. Regardless of whether or not the evidence may be obtainable, the fact remains Menu Foods obtained the order as the result of misrepresentations and professional misconduct. Failure to vacate the order for cause shown precludes Earl from seeking appropriate remedies. The order should be vacated. Issue 7: The Mifflin Declaration (Appendix A) states the evidence in question was “disposed”. It is unknown how, where or when it was disposed of, or if any of it is still remains in a discoverable condition. Menu Foods has not disclosed any of that information. The trial court should have taken steps to prevent further destruction of the evidence as long as those questions remained unanswered. Issue 9: See section 3 of the statement for direct review. Issue 10: When an individual is harmed by the acts of large corporations, there is often no recourse other than to pursue the action on an individual basis. Unless the wrongful acts are the subject of widespread media coverage, they do not attract the attention of class action attorneys. While the theory behind the class action process is basically good, the practical application often is not. Class action plaintiffs are rarely made whole and the defendants are rarely held fully accountable. By their nature, individual actions are not likely to involve large sums of money, which again makes it difficult for the injured party to obtain professional representation. Corporations with extensive resources may devote huge sums to prevent a case from reaching a stage of development where it might attract class action attorneys, while at the same time claiming huge burdens of cost in response to any request for discovery. In this case, Menu Foods has claimed it would have cost $3.8 million to produce the requested discovery material, and presented the courts with the argument that it had to be all or nothing, and that all is too expensive. Menu Foods claimed it would incur costs of $3,000 per day if Earl was allowed to engage in any of the normal procedures which constitute a litigant’s right of access to the courts. The end result amounts to economic discrimination and unequal protection under the law. Poor people can sue poor people. Middle class people can sue other middle class people or small companies. Rich people can sue other rich people and large companies. BUT, poor or middle class people can’t sue rich people or large companies. This is not equal protection under the law. It places the rich above the law and leaves them at liberty to damage large cross sections of the public, without being held accountable. The harm caused eventually becomes business as usual and, to whatever extent they are ever called on to answer for wrongful acts, that becomes a part of normal operating expenses. When there is a disparity of wealth between opposing parties, the courts should exercise care in affording all sides equal protection, and not infringe on the right to due process of the financially less advantaged party. F. CONCLUSION For the reasons stated in Part E, the Petitioner respectfully requests this Court grant direct review of this matter and reverse the trial court decisions designated in part B. Dated September 4, 2008. Respectfully submitted by: ______________________________ Donald R. Earl (pro se)