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  • Jim Ferraro

Battling the Bully Before the Trial

The two defendants made a tactical decision to split up their responsibilities when it came to providing certain types of evidence. The chemical titan DuPont took responsibility for all the science in the case, while Pine Island Farms took responsibility for defending against the alleged exposure to the DuPont product. Fortunately, this created a very defined separation between the science and the exposure to the product. The subsequent failure of the two defendants to allow for any overlap between the science and exposure would eventually play right into our hands.

Before we could get into any real discovery, we had one monumental, overriding task that required intervention by the judge. The problem we faced was an entirely unreasonable pretrial witness list served to us by DuPont and Pine Island. DuPont hit me with an initial list of over three hundred possible witnesses, hoping that the number and sheer workload involved would scare the crap out of me.

The case was brought before Judge Amy Steele Donner, a well-respected and highly seasoned judge who I thought would be very fair, given the many years of experience she’d had on the bench. She was known to be a no-nonsense judge, which was exactly what a case like this required.

By listing so many witnesses and knowing that we had the right, need, and necessity to depose each and every one them, our opponents were attempting to kill the case up front by making it impossible to pursue because it would require taking depositions every single day of the week except Sunday for over a year. But if they were going to play hardball, so was I.

Our first attempt to schedule depositions of the first few witnesses on the list was met with a total lack of cooperation and obstruction from both defendants. This led us to create a paper trail of communications with counsel documenting our attempts and their obstruction. This, in turn, led to us filing a motion before Judge Donner requesting judicial assistance in scheduling over three hundred witnesses for deposition.

At the hearing before Judge Donner, I showed up with a proposed schedule of depositions that laid out a five- or six-day-a-week plan spanning four countries over the course of the next year. The judge could tell the list was a tactic to bury us in discovery and forced the defendants’ hand. She put their feet to the fire and demanded that they provide the addresses, especially for those who didn’t have one listed for every single witness on their list, and she also gave us permission to set up the schedule over the course of the next year. And she made that final list of witnesses, including proper names and addresses, due within one week. She also warned both sides that if we couldn’t agree on when things were going to happen, she was going to set strict deadlines. She made it clear that she wanted all the pretrial work completed within the next year or two at the latest. I told the judge I was ready to start and was willing to work every day, even if it meant going out of business. I stood straight-facedly in front of her and called DuPont’s bluff every bit as much as she did.

A week later, they came back with a witness list that had been pared down to eighty-five people. After we had gone through the list with Judge Donner, we’d gotten it down to a total of sixty-three people, still located in four different countries. Little did I know at the time that my DuPont litigation (inclusive of the Castillo case and those of the twenty-nine Scottish families) would require forty trips to London over the next decade.

All in all, I’d say we won that battle.

Now the real work began.

I continue my reports of the Castillo trial preparation in my next post.

You can find a lot more about the story of this case in my book Blindsided, from which this blog post is adapted.


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