Recall-tainted Menu Foods destruction of a huge amount of evidence is having a potentially devastating impact on at least two ongoing court cases.

The company last year settled a $24 million lawsuit that grew from the largest pet food recall in U.S. history. The case was heard in New Jersey and parties are still wrapping up various items on the docket, but now a Washington state litigant is charging that the company illegally destroyed thousands of samples of food, potentially leaving him without evidence to pursue his claim.

During discovery for the New Jersey suit, the defendants collected thousands of cases of pet food — both recalled and non-recalled — in their warehouse. In December 2007, the defendants claimed that preserving all of these samples was an unnecessary waste of time and money. The court agreed, and allowed the defendants to destroy all but 500 units of recalled pet food.

Relying on a research model compiled by their expert, a Purdue statistics professor, the defendants claimed that these units would provide sufficient evidence for any future suits relating to the recalled food. The courts order allowed the destruction of all other unorganized product, including food not implicated in the New Jersey recall but directly related to at least two other suits pending at the time.

Donald Earl, a plaintiff in a Washington state suit against defendants Menu Foods and the Kroger supermarket chain, filed a motion objecting to the orders in January 2008. Earls suit involved cake style cat food, which does not contain gluten and was not implicated in the March 2007 recall. Laboratory tests of Earls food showed that it was contaminated with acetaminophen and cyanuric acid, nitrogen-based chemicals often used to artificially boost a foods apparent protein content. Neither chemical was discovered in the recalled food.

Criminal prosecution

Earls objection says that the defendants are highly motivated to destroy as much evidence as possible, to limit liability outside the recall period, as well as to avoid possible criminal prosecutions for violations of the Food, Drug, and Cosmetics Act.

In his pleadings, Earl contends that the defendants grossly exaggerated the time and money it would take to organize and store all of the samples, and points out that it was defendants own lack of care which created the burden in the first place. Moreover, Earl asserts that he did not receive notice of the evidence-destruction agreement until January 2008, a full month after the court approved the plan. Despite his allegations, the court dismissed Earls objection without comment in February 2008.

Earl also filed a motion in Washington state court, where his own suit was pending. That court rejected his claim in February 2008.

Menu accuses Earl of pursu[ing] a protracted campaign of baseless appeals and of whipping up scurrilous allegations of misconduct against Menu Foods counsel. In October 2008, the Washington court awarded Menu almost $5,000 in attorneys fees and expenses relating to Earls litigation.

Undeterred, Earl filed a second objection and motion to intervene in January 2009. Earl again claimed that the now-destroyed evidence was crucial to his own suit, and that he was substantially prejudiced by its disposal. Earls motion also alleged that Menu was well aware of the relevance of the non-recalled pet food when it asked for permission to destroy it.

The companys first quarter 2007 financial filing specifically stated that several lawsuits were pending in North America, and that the U.S. Food and Drug Administration had commenced a criminal investigation to determine whether the company violated the Food, Drug, & Cosmetic Act. The company noted that additional actions or investigations may arise in the future. Moreover, Menu was served with a summons in Earls Washington action in July 2007, months before they filed their New Jersey motion to destroy evidence.

Earls 2009 objection asserts that [a]n order permitting destruction of evidence is contrary to rule and law, is void, and must be vacated. The New Jersey Rules of Professional Conduct, based on national ethics standards for attorneys, forbids a lawyer from altering or destroying a document having potential evidentiary value. Earls motion points out that while the unorganized product is no longer relevant to the New Jersey case, it is directly material to his own suit.

Motion denied

In a two-page order issued in February, Judge Noel Hillman denied Earls motion to intervene, holding that Earl has not demonstrated that he has an interest in the unorganized inventory requiring that this Court vacate its prior orders regarding that inventory.

Model Rule of Professional Conduct 3.4(a) prohibits the destruction of any evidence with potential evidentiary value. Earl correctly notes in his 2009 objection that there is little case law relating to motions to destroy evidence, presumably because the overwhelming majority of practicing attorneys would prefer not to put their licenses at risk by filing such a motion in violation of the rule. However, most courts have adopted the rule that a party to a suit has the duty to preserve evidence when she is on notice of potential litigation.

A landmark case in this area is Fire Insurance Exchange v. Zenith Radio Corporation, a 1987 decision from the Supreme Court of Nevada. There, an insurer sued a TV manufacturer, claiming that a faulty set was the cause of the insureds house fire. The insurance company had not saved the TV, however, and the court dismissed the case. The court ruled that there is a duty to preserve evidence even when an action has not been commenced and there is only a potential for litigation.

With regard to Menus actions, the affected suit was more than potential — it had been occurring for some time. The company received notice of Earls lawsuit nearly six months before it filed its request to destroy evidence.

The companys actions also have the potential to adversely affect another class action suit. Blaszkowski v. Mars, filed in Florida in May 2007, alleges that several brands of pet food — including some made by Menu — contained ground up roadkill, blood, hair, and euthanized animals, among other items. The destroyed evidence from the New Jersey suit would likely have been directly material to this action as well.

The court undoubtedly had broad discretion to limit the amount of material produced during discovery, given the potentially vast amounts of possibly contaminated food. But Earl claims that it was another matter entirely for the court to order destruction of already-produced evidence, especially when it was potentially useful — and perhaps even critical — in at least two other cases involving a common defendant. Indeed, Earl contended that the evidence was unique and irreplaceable.

In any event, the courts have sided decisively with the pet food manufacturers, and there is no evidence that they will change their minds anytime soon.