Legal Advisory

: Tellez v. Dole Food Company Inc

Contact: Crystal Rockwood, Rockwood Communications, cell: 562-682-6482

Key Legal Questions and Answers in Dole Banana Case

LOS ANGELES (July 13, 2010) --

What's lost in the widely publicized Dole bananacase, from a legal perspective, is the

unprecedented

nature of Judge VictoriaChaney's ruling to keep the identity of all Dole witnesses secret AND to keeptheir testimony secret as well.Despite that secrecy, she used that testimony to throw out the

Mejia

case lastyear and is using it to do the same thing here in

Tellez

. Yet, that secrecy hasprevented the plaintiffs from investigating these outrageous and specious claims-- making it impossible for them to defend themselves in either case. It has alsoallowed the witnesses for Dole to "commit perjury with impunity," according toSteve Condie, an attorney for the plaintiffs. Among other things, Chaney usedthis testimony to "prove" a conspiracy by the plaintiffs to commit a fraud on thecourt -- even though no such conspiracy occurred. Condie notes that this level of secrecy has never happened before in a civil case.Various steps to conceal the identity of some witnesses who testify in somecases from the public have been taken, but the prohibition against anyinvestigation of testifying witnesses or their stories by one side is never done.And concealing the identity of all of the witnesses is likewise unprecedented. And that seems to fly in the face of our entire adversarial justice system and it

violates

the plaintiffs' right to due process. Likewise, Mark Sparks, a Texas lawyer at Provost Umphrey LLP who representsplaintiffs in other cases against Dole, has unfairly been implicated in this so-called "fraud." As a result, he has not only faced false, paid-for allegationsagainst him but his clients have also been injured as well -- as cases filed by himin other venues (such as Florida) have been tainted as a result of JudgeChaney's decision in California. He, too, is fighting for his

innocence

and the dueprocess rights of his own clients --all of which have been ignored in JudgeChaney's court where, apparently, she is ruling about lawyers and clients whoaren't even before her. Here are some cases in which access has been restricted and some brief commentary from Steve Condie. (See below.) No judge, however, has ever gonethis far and prevented one side from even defending itself. That's

unprecedented

From Steve Condie:

It goes without saying that the presentation of evidence secured in the manner that the “John Doe” testimony was gathered in the Mejia case in a criminal trialwould blatantly violate the Constitutional rights of the defendant under the SixthAmendment.

“....[N]umerous decisions of both the United States SupremeCourt and the California courts establish that whenever nondisclosure of awitness's identity will prevent the effective investigation and cross-examination of a crucial witness, the confrontation clause precludes the prosecution from relying upon the witness's testimony at trial while refusing to disclose the witness'sidentity. As the United States Supreme Court has explained: "[W]hen thecredibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness'[s] name and addressopen countless avenues of in-court examination and out-of-court investigation.To forbid this most rudimentary inquiry at the threshold is effectively toemasculate the right of cross-examination itself."(Smith v. Illinois (1968) 390 U.S.129, 131 [88 S.Ct. 748, 750, 19 L.Ed.2d 956], italics added, fn. omitted.)(Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1125-1126) “...[T]hestate's legitimate interest in protecting individuals who, by chance or otherwise,happen to become witnesses to a criminal offense cannot justify depriving thedefendant of a fair trial. Thus, when nondisclosure of the identity of a crucial witness will preclude effective investigation and cross-examination of that witness, the confrontation clause does not permit the prosecution to rely uponthe testimony of that witness at trial while refusing to disclose his or her identity. As this court observed more than 40 years ago, "however praiseworthy was the prosecution's motive in protecting the [witness] from the threat of reprisal[,] [s]uchmotives and purposes cannot prevail when, as here, they inevitably result,intentionally or unintentionally, in depriving the defendant of a fair trial." (Id at 1151)

While the specific protections placed in our nation’s Constitution for defendants in criminal trials are not entirely congruent with the dictates of dueprocess in a civil case, the fundamental right to a fair trial is no different. TheFourteenth Amendment to the United States Constitution contains the privilegesor immunities clause, the due process clause and the equal protection clause:"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive anyperson of life, liberty, or property, without due process of law; nor deny to anyperson within its jurisdiction the equal protection of the laws."With regard toprecedent in civil cases, the closest thing I've found is the case of

Planned Parenthood Golden Gate v. Superior Court

(2000) 83 Cal.App.4th 347, 369.