1. INTRODUCTION The Petitioner, Donald R. Earl, hereby submits this reply to Menu Foods Income Funds’ answer as directed by the Court in its order dated August 26, 2008. 2. FACTUAL BACKGROUND One of the most persistent errors in the decisions entered in this matter to date is that those decisions are based on a void order entered in Federal Court, which order is also entirely irrelevant to this action. Menu Foods has based all its arguments on that decision, and the courts have improperly based the decisions in this case on those irrelevant arguments. It is known The Kroger Company removed all evidence material to this action from its stores and warehouses approximately one week after Menu Foods announced its March 16, 2007 recall. It is known, based on Menu Foods’ disclosures on product mix, that over half of that body of evidence consists of evidence material to this action. It is known those products have a 3 year shelf life and that retailers base their stocking of product, and inventory distribution controls, on how long they can safely hold a product based on its shelf life. It is known, based on disclosures made by Menu Foods, that even after 4 months, lot numbers from individual production dates were available in quantities often numbering in the hundreds of thousands. CR 26 (a)(1) requires only that “the information sought appears reasonably calculated to lead to the discovery of admissible evidence”. Based on what was known, as stated above, it is impossible to deny the request to obtain samples met this requirement. This Court should take additional notice of the fact that due to the manner in which Menu Foods railroaded motions through the courts, Earl was denied any opportunity to obtain documentation on what inventory was returned to Menu Foods, denied any opportunity to view the storage facilities, and denied any opportunity to hire his own experts to calculate alternate methodologies for conducting discovery on this body of evidence. The trial court based its decision to disallow observance of these important procedural rights on the costs claimed by Menu Foods to store evidence, 95% of which was irrelevant to this case. Earl has repeatedly made clear his interest is in the remaining 5%, which is a small fraction of the burden claimed by Menu Foods in the trial court. Menu Foods argues this Court should take judicial notice of the fact Earl had no interest in conducting discovery on the vast majority of evidence being held by Menu Foods. It certainly should. This Court should also take judicial notice of the fact that the cost, if any, related to maintaining this small minority portion of the evidence being held, was a proportionally small part of the burden claimed as a basis for denying allowance of the ordinary course of the discovery process. This Court should also give consideration to the fact Menu Foods first actions on claiming a state of “emergency” existed, did not take place until half a year after it had been served notice of the summons and complaint filed in this action. This Court should give additional consideration to the fact Menu Foods began negotiations on preservation of evidence with plaintiffs in the Federal action 4 months prior to taking any similar steps in this case. Menu Foods argues the matter is moot because a stay was not entered. The fact is Menu Foods acted unlawfully both in obtaining an order that was void on its face, and in illegally destroying material evidence. Rule and law specifically prohibit destruction of evidence. A stay was not necessary to legally ensure its preservation. 3. LEGAL AUTHORITY AND ARGUMENT Under RPC 3.4(a), the motion for permission to destroy evidence was not properly before the trial court or any court involved in this matter. The rule reads: “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” (emphasis added) If this Court should fail to take judicial notice of every fact and legal argument is this matter except one, this is the point it should give its most careful consideration. If there is a single fact in this situation the record demonstrates beyond dispute, it is that counsel for Menu Foods has at all times aggressively counseled and assisted, aided and abetted, the destruction of evidence material not only to this case and similar civil cases across the United States and Canada, but to criminal actions that can and should be prosecuted against Menu Foods for manufacture and transport in interstate commerce of adulterated food. RPC 3.4(a) and related law, unconditionally prohibits attorneys from engaging in such tactics. Moving for a stay was not necessary. Counsel for Menu Foods was well aware the order was void and any action taken to destroy evidence was clearly and specifically prohibited by rule and law. Under US Code, Title 21, § 331: “The following acts and the causing thereof are prohibited: (a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded. (b) The adulteration or misbranding of any food, drug, device, or cosmetic in interstate commerce. (c) The receipt in interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise… (g) The manufacture within any Territory of any food, drug, device, or cosmetic that is adulterated or misbranded.” Provisions of RCW 69.04.04 are essentially identical to the Federal statute. Under US Code, Title 18, § 1519: “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.” Under RCW 9A.72.150: “(1) A person [an attorney or Menu Foods] is guilty of tampering with physical evidence if, having reason to believe that an official proceeding is pending or about to be instituted and acting without legal right or authority, he: (a) Destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its appearance, character, or availability in such pending or prospective official proceeding” Under RCW 9A.28.040: “(1) A person [Menu Foods] is guilty of criminal conspiracy when, with intent that conduct constituting a crime [destruction of evidence] be performed, he or she agrees with one or more persons [attorneys] to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.” Under RCW 9A.28.020: “(1) A person [an attorney] is guilty of an attempt to commit a crime if, with intent to commit a specific crime [destroy evidence], he or she does any act which is a substantial step toward the commission of that crime.” Under RCW 9A.28.030: “(1) A person [Menu Foods] is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he offers to give or gives money or other thing of value to another [an attorney] to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed.” Under RCW 9A.76.050: “As used in RCW 9A.76.070, 9A.76.080, and 9A.76.090, a person [an attorney] "renders criminal assistance" if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person [Menu Foods] who he knows has committed a crime… he: (2) Warns such person of impending discovery or apprehension; or (3) Provides such person with… means of avoiding discovery or apprehension; or (4) Prevents or obstructs, by use of… deception… anyone from performing an act that might aid in the discovery or apprehension of such person; or (5) Conceals, alters, or destroys any physical evidence that might aid in the discovery or apprehension of such person” Under RCW 9A.76.175: “A person [an attorney] who knowingly makes a false or misleading material statement to a public servant [a judge or commissioner] is guilty of a gross misdemeanor. "Material statement" means a written or oral statement reasonably likely to be relied upon by a public servant [a judge or commissioner] in the discharge of his or her official powers or duties.” 48 states, including Washington State, plus the District of Columbia, have adopted the Model Rules of Professional Conduct as established by the American Bar Association. Under US Code 28, Rule 74(C), the rules of professional conduct, including RPC 3.4(a), are a matter of law: “[attorney] “misconduct” shall include… acts or omissions, individually or in concert with any other person or persons, that violate or attempt to violate the rules of the bar of the state in which an attorney is licensed to practice.” RCW 2.48.220 and RCW 2.48.230 contain substantially similar provisions. The motion submitted by Menu Foods in Federal court seeking the destruction of evidence is prohibited by rule and law. That court erred in granting the motion. The motion submitted by Menu Foods in the Court of Appeals for permission to present a motion to destroy evidence in the trial court is prohibited by rule and law. The Court of Appeals erred in granting the motion. The motion submitted by Menu Foods in the trial court for permission to destroy evidence is prohibited by rule and law. The trial court erred in granting the motion. That these grave errors have not been corrected in previous litigation on review does not lend credence to the argument that the errors should not be corrected. Correcting errors, as justice demands, is the sole purpose of the checks and balances in our system of law. It is the ultimate responsibility and duty of our highest courts. Justice and law require that the trial court decision be reversed. IN SUM, the trial court did not have jurisdiction or discretion to entertain a motion to destroy evidence. The motion was improperly before the court as a result of misconduct and misrepresentations on the part of counsel for Menu Foods. The order entered by the trial court was not a lawful order and the order is void. Failure to vacate the order of February 15, 2008 deprives the Petitioner of the ability to pursue otherwise available remedies and rights related to the unlawful actions and/or professional misconduct on the part of Menu Foods and/or its counsel. Courts do not have authority to contravene State and Federal laws enacted by legislative bodies for the purpose of preserving evidence. As a matter of law, the trial court order permitting destruction of evidence must be overturned. The criteria of RAP 13.5 is met and review should be accepted. 4. CONCLUSION For the above reasons, the Petitioner, Donald R. Earl, respectfully requests this Court accept review and reverse the trial court order permitting destruction of evidence. Dated: September 22, 2008, Respectfully submitted by: ____________________________ Donald R. Earl (pro se)