1. INTRODUCTION The Petitioner, Donald R. Earl, respectfully requests direct review of the Superior Court order entered on August 22, 2008 denying post judgment motions brought under the provisions of RAP 7.2(e): 1. A CR 60 motion to vacate the February 15, 2008 order allowing destruction of material evidence. 2. A CR 26 motion to produce discovery. 3. CR 65 motion on oral argument to restrain further destruction of evidence. 4. Menu Foods motion for attorney fees. 2. ISSUES 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 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 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 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? 3. REASONS FOR GRANTING DIRECT REVIEW Pursuant to RAP 4.2(a)(4) the Supreme Court may grand direct review in cases “involving a fundamental and urgent issue of broad public import which requires prompt and ultimate determination.” An estimated 60% of US citizens have pets in their homes. The Menu Foods recall of 2007 was the largest recall in US history and resulted in the deaths of an estimated quarter million pets. The FDA alone received over 18,000 complaints from pet owners. Menu Foods received over half a million consumer complaints. In public statements made by the FDA, many of the complaints involved pet food manufactured by, but not recalled by, Menu Foods. Independent tests on pet food manufactured by Menu Foods shows its products had been adulterated with cyanuric acid and/or other toxins at least 7 months prior to the first date of production of recalled products. Public comments made by the FDA show wheat gluten used in the recalled products contained trace levels of cyanuric acid, which are typical of commercially available melamine, yet finished pet food products contained very high levels of cyanuric acid. UC Davis conducted a study on cats, the results of which were released in the Fall of 2007. The study showed no short term health effects resulted from the feeding of either cyanuric acid or melamine alone, yet the combination caused complete destruction of the kidneys within 24-48 hours, with lethal results in the following several days. Tests for protein content are based on the nitrogen content of protein. Melamine and cyanuric acid are both high in nitrogen, making them attractive substances to unlawfully boost the apparent protein content of food. Available evidence and information in the public domain indicates Menu Foods was intentionally, and unlawfully, spiking pet food with cyanuric acid in order to inflate the apparent protein content, and had been doing so for at least a year prior to the March 2007 recall announcements. Subsequent to the recall announcements, Menu Foods aggressively solicited the return of pet food evidence held by consumers. The Kroger Company took similar steps related to both recalled and unrecalled pet food. The Kroger Company, a nationwide grocery retailer, which in the normal course of its business, organizes and inventories over $66 billion dollars worth of products every year, returned this evidence to Menu Foods in so disorganized a manner as to make discovery far more burdensome than it would have been had it been managed in a manner typical of its normal procedures. Menu Foods, upon receipt of this evidence, subjected it to further disorganization and abuse, making discovery that much more difficult to accomplish. There are an apparently large, but unknown number of individual actions, including the Plaintiff’s, which relied on obtaining samples of this evidence. According to the PACER database, Menu Foods is a named party in some 500 civil actions at the Federal level. It is reasonable to assume a similar or higher number of individual actions are pending all across the US and Canada. Menu Foods has not disclosed the exact number of these pending cases, but documents filed by Menu Foods indicate the number is substantial. In a pet food suit seeking class action status in Florida, filings show there are over 2,000 pet owners expressing a desire to join the action, and that those cases will break up into a multitude of individual actions if class action status is not granted. In public statements made by Menu Foods, it acknowledges the existence of pending civil actions and criminal investigations, and the likelihood of similar future actions. Additionally, the MDL action pending in Federal court is currently in the opt out phase, with over 6,000 pet owners opting in, and potentially thousands opting out to pursue individual actions. Our courts should recognize the importance of preserving evidence when the destruction of the evidence affects the rights of such a large cross section of the population. In the absence of such recognition, Menu Foods has drawn a roadmap which may be followed in every future epidemic food poisoning event. This time it was pet food. The next time it may be breakfast cereal or baby food. According to the CDC over 300,000 US citizens are hospitalized every year as a result of food borne illness, and 5,000 of those die. We all have to eat. Every aspect of our food supply must be kept safe. Civil actions are often the only feasible mechanism to provide accountability for harm done. When that mechanism breaks down to the point it is less costly to do it wrong than it is to do it right, every person in this country is placed in harm’s way - everyone - those seeking justice as well as those dispensing justice. Sooner or later, it stops being just something that happened to someone else. For these reasons, this Court should accept direct review as the core issues are of grave and immediate public concern. Dated September 4, 2008. Respectfully submitted by: ______________________________ Donald R. Earl (pro se)