Three days after a Florida trial court judge signed this order in which she concluded that DuPont Co. had acted in bad faith, abused the judicial process and "purposefully set upon a course of conduct that has served as a complete denial of plaintiffs' right to have its day in court," DuPont settled 20 Florida cases against it in which growers claimed the company's fungicide Benlate caused crop damage. The judge's August 5 order struck DuPont's answer and entered a default judgment. As part of the settlement agreement, the parties' lawyers asked the judge to vacate the August 5 written order and to seal it. She agreed.

IN THE CIRCUIT COURT OF THE ELEVENTH 
JUDICIAL
CIRCUIT IN AND FOR DADE COUNTY, FLORIDA 
GENERAL
JURISDICTION DIVISION
CASE NO. 92-20006 (CA 23)

DAVIS TREE FARMS, INC., a
Florida Corporation; DAVIS
TREE FARMS NORTH, INC., a
Florida Corporation;

Plaintiffs,

vs.

E.I. DU PONT DE NEMOURS & COMPANY,
INC., a Delaware Corporation;
HELENA CHEMICAL COMPANY, a Florida
corporation; MAXWELL FERTILIZER AND
FARM SUPPLIES, INC., a Florida
corporation; ASGROW FLORIDA
COMPANY, a Florida corporation;
and CRAWFORD & COMPANY, a Georgia corporation;
Defendants.

ORDER ON PLAINTIFFS' MOTION TO STRIKE 
DEFENDANT DUPONT'S PLEADING THIS CAUSE came 
before the Court on June 21, 1996 on Plaintiffs' Motion to 
Strike Defendant DuPont's Pleadings and Enter Default 
Judgment. The Court has considered the motion, the record, 
and the arguments of counsel. It is hereby, ORDERED AND 
ADJUDGED as follows;

1. The allegations that came before this Court on June 21, 
1996, are that DuPont conducted a test in Costa Rica with 
Benlate 50 DF and ornamental plants in September, 1992. 
When the results of the test were unfavorable to DuPont, 
DuPont scientist ordered the plants to be destroyed, and then 
sought to conceal the nature of the test from Plaintiffs in this 
and other Benlate litigation.

2. These allegations are of a particularly serious nature 
because if true, they show that DuPont and its counsel have 
engaged in a deliberate pattern of discovery abuse and fraud 
before this Court. 

I. FINDINGS OF FACT

DuPont's Willful Refusal to Comply with Court Orders

3. Plaintiffs learned of possible tests in Costa Rica in early 
1996 and propounded interrogatories and requests for 
production designed to elicit information about the event.

4. Defendant responded to the interrogatories by giving 
unintelligible responses to production requests, agreeing to 
produce documents but never producing them, and claiming 
that the requested documents were privileged.

5. On April 23, 1996, this Court held a hearing on Plaintiff's 
request to produce documents related to the Costa Rican 
tests. At the hearing, the Court ordered DuPont to produce 
certain requested documents to the Plaintiffs, and to produce 
all documents over which DuPont claimed a privilege, for in 
camera inspection.

6. DuPont has repeatedly stated in depositions, filings, and in 
open court that it has waived work product privilege "in 
limited areas" with respect to the Monte Vista test site in 
Costa Rica. Examples of this stated waiver are as follows:

Mr. McGregor: Your Honor, we basically waived work 
product, and if we can get the issue of they claim this 
supposed field trial took place at the Monte Vista site and 
that is all transpired under this agreement with Welker that he 
showed to you and a confidentiality agreement with Cefalo 
and involves Mr. Vargas with respect to the Monte Vista site 
where this alleged field trial took place, then isn't that the 
issue that we're dealing with so they can look at it?

(Transcript of April 23, 1996 hearing, at 36-37).

The Court: It is opinion as opposed to fact. Therefore, if you 
put in memos facts such as we are going to conduct a field 
test, that is a fact. Or we have conducted a field test, that is a 
fact versus and opinion, is it not?

Mr. McGregor: That work product, I believe, has been 
waived with respect to Monte Vista. (Transcript of June 21, 
1996 hearing, at 20).

7. Despite acknowledging that DuPont waived work product 
privilege with regard to Monte Vista, and despite this Court's 
April 23, 1996 order, DuPont failed to produce the requested 
documents.

Among the documents DuPont was required to produce, but 
did not, were expense records of DuPont employees' trips to 
Costa Rica. In addition to an agreement with the Plaintiffs re: 
Additional time to comply with the order, DuPont filed two 
motions for extensions of time to produce the documents. 
Over Plaintiff's objections, this court granted DuPont's 
motion on May 31, 1996 and June 11, 1996.

8. On June 17, 1996, Plaintiffs filed a motion for an 
emergency hearing because DuPont still had not produced 
documents which plaintiffs needed to prepare for a deposition 
scheduled to take place the next day, and because a hearing 
on Plaintiff's Motion to Strike and Sanctions was scheduled 
for June 21, 1996. This Court had already continued and reset 
the hearing to accommodate Defendant's discovery 
production problems.

9. At the June 17, 1996 emergency hearing which was 
attended by all counsel telephonically, this Court entered an 
order requiring DuPont to produce all for the non-privileged 
documents requested by Plaintiffs within 24 hours, or be 
subject to a fine of $10,000 for each day DuPont delayed 
production. After 2 days, if DuPont had not produced the 
documents, this Court stated that it would strike DuPont's 
pleading without further hearing.

10. This Court issued such an order because it was apparent 
that DuPont had intentionally delayed the production for 
documents for which it had offered no legitimate claim of 
privilege.

11. Plaintiffs received some of the requested documents from 
Defendant in the morning of June 18, 1996. At 4:30 that day, 
Plaintiffs were notified that additional documents responsive 
to the Court's order were available for Plaintiffs to pick up at 
Defense counsel's office.

12. Plaintiffs received more documents on Wednesday, June 
19th and even as late as 3:15 p.m. on June 20, 1996.

13. This Court was clear in its order of June 17, 1996 
concerning production of documents. Additionally, when this 
court stated that Defendant was to produce the documents, it 
was clear that the documents were to be delivered to 
Plaintiffs, not simply made available for Plaintiffs to pick up.

14. At the June 21, 1996 hearing on Plaintiffs' Motion to 
Strike Defendant's Pleadings, Plaintiffs informed the Court 
that DuPont had failed to fully comply with the June 17,1 
996 order. Plaintiffs presented a cover letter dated June 20, 
1996, from DuPont producing relevant discovery. This 
denotes a blatant disregard for the Court's order to produce all 
documents within 24 hours.

15. Additionally, at the June 21, 1996 hearing, Plaintiffs 
provided the Court with some of the documents DuPont had 
produced in partial compliance with the order.

16. The documents provided by Defendant DuPont were such 
poor copies that they were completely illegible. Plaintiffs' 
counsel informed the court that when he contacted DuPont's 
counsel about the legibility of the documents, DuPont's 
counsel informed him that Plaintiffs' counsel could obtain 
better copies by going to Delaware and requesting them at the 
Benlate document depository.

17. DuPont has produced these same documents in camera 
for this court to examine. This court examined the quality of 
the copies produced in camera and found them to be perfectly 
legible and of good quality.

18. This production of illegible copies to the Plaintiffs further 
shows a blatant disregard of the June 17, 1996 order as well 
as the spirit of the discovery process.

19. DuPont's counsel offered no explanation or contradiction 
to Plaintiffs' assertion of DuPont's failure to comply with the 
June 17, 1996 order.

20. Accordingly, this court finds that DuPont willfully failed 
to comply with its April 23, 1996, and June 17, 1996 orders. 
DuPont shall pay the fine of $20,000.

Testing at the Monte Vista Site

21. At the June 21, 1996 hearing, Plaintiffs presented the 
testimony of Richard Cefalo, R.P. Welker, and Leon Vargas 
in support of their allegations that DuPont had conducted a 
field test involving Benlate. 

22. The testimony of the three witnesses corroborated one 
another's account of the events which took place in Costa 
Rica in September, 1992.

23. DuPont offered the testimony of Dr. Timothy 
Obrigawitch and Gerald Stephenson to rebut the testimony of 
Cefalo and Vargas. Dr. Obrigawitch is a scientist for DuPont 
and has testified in many of their Benlate trials. He was lead 
scientist for DuPont's Florida field trials. Mr. Stephenson is a 
salesman for DuPont who has been instrumental in 
investigating many growers' claims against Benlate.

24. These witnesses testified that they obtained the Monte 
Vista site simply to root some cuttings to bring into the 
United States at a later date, and did not conduct any tests. 
These witnesses denied many of the facts Cefalo and Vargas 
asserted about the project. 

25. DuPont's story concerning Monte Vista has changed 
several times throughout this litigation.

26. Mr. Stephenson and Dr. Obrigawitch gave several 
versions as to why they went to Costa Rica originally.

27. Neither Mr. Stephenson or Dr. Obrigawitch could 
specifically remember which of them requested the specific 
set up of the Monte Vista site. Neither of them could 
remember who specifically came up with the idea to root the 
cuttings.

28. In addition, Mr. Stephenson testified that he had falsified 
expense reports to DuPont. One meal he listed on his expense 
report, one he stated he had eaten with Mr. Cefalo and Mr. 
Vargas, was simply to recover money had had paid Mr. 
Cefalo for supplies while in Costa Rica in September 1992.

29. This Court finds that such testimony indicates Mr. 
Stephenson's unreliability as a truthful witness.

30. This court finds that the testimony of DuPont's witnesses 
Gerald Stephenson and Timothy Obrigawitch is unreliable.

31. Every witness for both Plaintiff and Defendant testified as 
to the presence of Leon Vargas at the Costa Rica site.

32. Mr. Vargas is a Costa Rican national with no interest in 
the outcome of the litigation.

33. The testimony presented by the witnesses in this case 
conflicts. This Court, having read the depositions of all 
witnesses filed in this case, finds that the testimony of Leon 
Vargas is persuasive, and represents the most accurate 
account of what occurred at the Monte Vista site in Costa 
Rica in 1992.

34. While the Court does not believe that memory is perfect 
after a span of four years, the documents Mr. Vargas 
produced at his deposition indicate that he understood the 
events at Monte Vista to be a research project involving 
Benlate, and that DuPont did not take any steps to dissuade 
him of that belief.

35. Leon Vargas' testimony, in conjunction with Cefalo's 
testimony and the documents produced in this case, indicate 
that DuPont contracted with R.P. Welker Plants to do 
research on Benlate in Costa Rica at the Monte Vista site.

36. These documents give further evidence that testifying 
was in fact performed.

37. Leon Vargas' invoice to DuPont for payment of services 
stated his activities as setting up an experiment in Monte 
Vista, and asked for fees for consultation regarding the 
effects of Benlate in ornamental plants.

38. The Welker Services Agreement specifically refers to a 
research project: "WHEREAS, DUPONT is desirous of 
conducting confidential research concerning the use and 
effects of its fungicide Benlate 50 DF;..."

39. DuPont employee Erik Seay's travel and expense report 
states the reason for travel to Costa Rica in September, 1992 
was "Benlate field test."

40. This Court is persuaded by evidence presented at the June 
21, 1996 hearing that testing occurred at the Monte Vista site 
in Costa Rica in the fall of 1992.

41. This Court finds that the documentary evidence taken in 
conjunction with the testimony of the witnesses indicates that 
there was a research project in Costa Rica involving different 
concentrations of Benlate 50 DF.

42. This Court finds that DuPont conducted an experiment or 
test, albeit not strictly adhering to scientific protocol, 
involving the effect of Benlate 50 DF on plants in Costa Rica 
in September, 1992.

43. This Court finds that DuPont destroyed plants treated 
with Benlate 50 DF when they turned black and began to die.

44. This Court finds that DuPont then sought to conceal 
information about the Monte Vista Site from Plaintiffs.

Statements to the Court

45. DuPont's defense hinges on semantic tricks which flout 
the Court's authority. DuPont's perception appears to be that 
if Plaintiffs and the Court do not mention the correct 
"buzzwords," then DuPont is free to deny any allegation it 
chooses.

46. At the June 21, 1996 hearing, DuPont supplied the Court 
with a child's version of Webster's dictionary definitions of 
"test" and "trial" to support its argument than it did not 
conduct a test or trial in Costa Rica.

47. DuPont's actions demean this Court authority. By asking 
it to adhere to dictionary definitions rather than examine the 
overwhelming evidence that an experiment did in fact take 
place, DuPont asks this Court to ignore the judicial process. 
This court does not need a dictionary in this case to guide its 
ruling; the evidence speaks for itself.

48. When questioned directly by the court on the nature of 
DuPont's actions at Monte Vista, in order to maintain its 
untenable position, Defense counsel addressed only those 
words Plaintiffs referred to in their requests for production.

The Court: Let me see if I understand this. Are you saying to 
me that because it wasn't rigorous, or because it wasn't a 
textbook field trial that it didn't take place, or are you saying 
to me we can't use these terms and, if they did something, it 
wasn't really a field trial even if they used Benlate?

Mr. McGregor: What I'm saying to you, You Honor, is that in 
response to the interrogatory that was asked, we said there 
were no tests, no trials, no investigations, no analyses. Our 
answer was truthful. Our answer was truthful in terms of as 
they've defined it as, the very beginning of their motion, 
Costa Rican Benlate field trials, field trials, which I will get 
to, You Honor, I promise you. Field trials, the Florida field 
trials, the Hawaiian field trials have a definition, and that 
definition isn't a test or trial, isn't too different than the one 
we learned as kids, which says you go through a process and 
you get some results. This was--

The Court: I don't think you've answered my question. 

Mr. McGregor: I'll try again, You Honor. 

The Court: My question is very simple, sir. If they went there 
and if what Mr. Vargas says is true, they did buy the Benlate, 
they did bring the Benlate and they did dip the plants in 
Benlate and they didn't use any kind of a control and the 
plants died and they threw then away, that would not be a test 
of any kind in your mind and you would be confident that 
you could say that to a court of law without lying?

Mr. McGregor: *That's correct, Your Honor, under the facts, 
under the facts in this case, that is correct.* They were 
rooting cuttings in Costa Rica. They were not doing any 
types of test of Benlate. The were not doing any type of field 
trial of Benlate. 

The Court: But did you hear what I said? Even if they dipped 
them in solutions of Benlate; now did you hear me say that?

Mr. McGregor: I did hear you say that, Your Honor. I heard 
you say that.

The Court: I want to make sure I understand you and you 
understood me.

Mr. McGregor: Okay.

(Transcript of June 21, 1996 hearing, at 100-101) (emphasis 
added).

49. DuPont counsel's blatant defiance of this Court's 
authority in refusing to depart from such semantical game 
playing is deliberately evasive and totally inexcusable. The 
Third District Court of Appeal has faced this situation as 
well, and has responded aptly:

"By contrast, the tortfeasor in the present case had coverage 
that was lower than [the plaintiff's] limits. Although 
Hartford's argument engages in the Alice-in-Wonderland 
practice of departing from the usual meaning of words, it 
does not take a leap through the looking-glass for this Court 
to conclude that the tortfeasor who injured [plaintiff] was 
'uninsured' to the extent those injuries exceeded the policy 
limits. See Lewis Carroll, Through the Looking Glass, (1872) 
('When I use a word, it means just what I choose it to mean - 
neither more nor less.')"

Hartford Insurance Co. v. Minagorri, 675 So. 2d 142, 143-44 
(Fla. 3d DCA 1996).

50. Defendant's refusal to acknowledge that the work in 
Costa Rica in September 1992 constituted an experiment, 
simply because Plaintiffs did not use the right works in their 
requests, demonstrates bad faith and contemptuous behavior 
on the part of DuPont and its attorneys in discovery. DuPont 
is unilaterally deciding the evidence by determining that 
words only mean what it chooses them to mean, "neither 
more nor less." Hartford Insurance Co. v. Minagorri, 675 So. 
2d at 144.

51. This court finds that DuPont engaged in willful and 
malicious behavior with respect to discovery concerning the 
research project in Costa Rica in September, 1992.

52 DuPont's argument, that the Motion to Strike simply 
hinged on one response to one request for production out of 
roughly 500, again demonstrates to this Court DuPont's utter 
disregard for the rules of discovery and ethical conduct. If 
DuPont has misled this Court and Plaintiffs and lied about 
the nature of their actions in Costa Rica, it is irrelevant if it is 
one interrogatory or one hundred; the result is the same.

53. This Court finds that DuPont intentionally withheld this 
crucial information, and denied its existence in an effort to 
prevent the disclosure to the Plaintiffs and this Court of its 
action in Costa Rica concerning Benlate 50 DR.

Destruction of Evidence

54. The plants at Monte Vista were destroyed sometime after 
the test was performed. Plaintiffs were unable to gather 
information on these plants.

55. Plaintiffs argue that they have been irreparably prejudiced 
because DuPont destroyed all evidenced from Monte Vista.

56. Dr. Timothy Obrigawitch ordered Mr. Cefalo to "dump" 
the plants when Cefalo told him of their deteriorated 
condition.

57. Mr. Cefalo then told Leon Vargas to "dump the plants." 
Soon after, Cefalo faxed Vargas, asking him to hold the 
plants and takes pictures of them. Mr. Vargas did not save the 
plants. 

58. DuPont argues that Mr. Cefalo's urgent fax requesting 
that Vargas not dump the plants shows that DuPont did not 
have control over the destruction of the evidence. Mr. 
McGregor: "... if they felt that there was something wrong 
with those plants, Your Honor, they wouldn't have dumped 
them. So who had control over that when you talk about 
destroying evidence?" (Transcript of June 21, 1996 hearing at 
115).

59. Again DuPont engages in the narrowest of semantic 
distinctions. It submits to this Court that although it was a 
DuPont run project, although Vargas was paid by DuPont, 
and although Dr. Obrigawitch had ordered Cefalo and Vargas 
to "dump" the plants, because Cefalo faxes an urgent 
message to Vargas asking him not to dump the plants, 
DuPont did not have control over the evidence.

60. With such legal gymnastics, DuPont again demonstrates 
its inability to be truthful to this Court, and seems to forget 
the entire body of law on agency.

61. DuPont has made claims in defending other litigation and 
before this Court that the results of the field tests exonerate 
Benlate 50 DF as the cause of crop damage.

62. Plaintiffs will have no opportunity to rebut or question 
the results of the Florida field trials by examining and 
utilizing the results from Monte Vista.

63. It is clear that DuPont has destroyed the evidence from 
the "Monte Vista research project." Plaintiffs will never have 
an opportunity to examine the plants, the medium, or the 
protocol. 

64. DuPont argues that since there is no trial date set in this 
case, Plaintiff are not irreparably harmed. Again DuPont asks 
this Court to ignore the magnitude of its actions. Simply 
because there is no trial date set does not mean that DuPont 
can attempt to conceal such evidence by destroying it and 
willfully disobeying the orders of this Court.

65. This court finds that DuPont's destruction of evidence and 
refusal to comply with discovery requests to prove same, 
irreparably harmed the Plaintiffs in this matter, and 
demonstrates their complete disregard for the canons of 
ethics and the rules of discovery. 

Leon Vargas Work Product Claim

66. DuPont has repeatedly sought to prevent Plaintiffs from 
obtaining information about its activities at Monte Vista.

67. In furtherance of this, it has delayed discovery, filing 
motions for protective order to prevent Plaintiffs from taking 
Leon Vargas' deposition, and then, a motion for return of 
Vargas work product and seeking sanctions against Plaintiffs' 
counsel.

68. DuPont did not assert a privilege over the testimony of 
Leon Vargas until after counsel had spoken with him before 
his deposition, and discussed his possible testimony. DuPont 
did not assert that Mr. Vargas was a non-testifying consultant 
until after counsel spoke to him about his testimony.

69. Over Defendant's protests, the Special Master in this 
action, allowed Mr. Vargas' deposition to proceed. 

70. During his deposition, Mr. Vargas testified that DuPont's 
counsel in another action has informed him that since he was 
a Costa Rican national, he could not be subpoenaed to testify 
in Florida, and didn't "really have to" give testimony.

71. At his deposition, Vargas clearly stated that he had not 
done any consulting for DuPont after his confidentiality 
agreement was signed. He also stated that he had never 
discussed trial strategies with DuPont.

72. This Court sees Defendant's motion concerning Vargas 
work product and its previous motion for protective order to 
be simply more examples of Defendant's tactics to prevent a 
full and fair exposure of the events at Monte Vista.

Chemdesign and Kirschner 

73. DuPont has attempted to thwart discovery in other areas 
of this litigation as demonstrated by its actions with respect 
to the depositions of Chemdesign Corporation and Theodore 
Kirschner. This Court has already sanctioned DuPont for its 
misconduct in this respect. However, this simply further 
proves the wilful pattern and practice DuPont has engaged in 
heretofore. 

Ethical Considerations

74. Attorneys are bound by the Florida Rules of Professional 
Conduct. They have a duty of candor to the judicial tribunal. 
See comment to Rule 4-3.3, Florida Rules of Professional 
Conduct, 1996). 

75. However, Rule 4-3.4 is particularly apt in describing 
DuPont's counsel's conduct in these proceedings: 

A lawyer shall not: (a) unlawfully obstruct another party's 
access to evidence or otherwise unlawfully alter, destroy, or 
conceal a document or other material that the lawyer knows 
or reasonably should know is relevant to a pending or a 
reasonably foreseeable proceeding; nor counsel or assist 
another person to do any such act. 

(Rule 4-3.4, Florida Rules of Professional Conduct, 1996). 

76. This Court finds that DuPont's counsel violated the letter 
of these rules in their conduct before this tribunal. 

II. Conclusions of Law

The reasonableness of a sanction depends in part upon the 
willfulness or bad faith of the party. The accidental or 
negligent destruction of evidence often justifies lesser 
sanctions directed toward compensating the victims of 
evidence destruction. The intentional destruction or alteration 
of evidence undermines the integrity of the judicial process 
and, accordingly, may warrant imposition of the most severe 
sanction of dismissal of a claim or defense, the striking of 
pleadings, or entry of a default. Trammel v. Bass, 672 So. 2d 
78, 84 (Fla. 1st DCA 1996) (citations omitted).

77. "Thus, in the case of the intentional alteration of 
evidence, the most severe sanctions are warranted as much 
for their deterrent effect on others as for the chastisement of 
the wrongdoing litigant."

Trammel at 84 (citations omitted).

78. In this instance the court is in the unique position of 
sanctioning a litigant which has been severely sanctioned in 
other courts, seemingly to no avail. By striking DuPont's 
pleadings, this court hopes that this will have a deterrent 
effect, not only on other litigants, but on DuPont's actions in 
other cases in the future.

79. "A drastic sanction that denies the availability of the 
court's processes is therefore appropriate to one 'who defiles 
the judicial system by committing a fraud on the court.'" 
Trammel at 84 quoting Aoudad v. Mobil Oil Corporation, 
892 F. 2d 1115, 1118 (1st Cir. 1989).

80. Courts have also upheld the sanction of striking the 
pleadings when litigants have "engaged in bad faith 'games 
playing' with the court and opposing counsel in delaying and 
thwarting the orderly process of discovery." HZJ, Inc. v. 
Wysocki, 511 So. 2d 1088, 1089 (Fla. 3d DCA 1987).

81. This Court finds that DuPont's conduct constitutes 
abusive litigation practices and specifically finds that such 
practices were done in bad faith.

82. This Court concludes that DuPont's conduct as set forth in 
the Findings of Fact herein demonstrates that DuPont 
engaged in intentional misconduct which abused the judicial 
process. 

83. This Court determines that DuPont has engaged in a 
systematic design to thwart discovery. This Court further 
finds that DuPont's conduct in this regard is so atrocious that 
it shocks the conscience of this Court. DuPont has destroyed 
evidence; it has delayed discovery; mislabeled documents at 
its document depository to thwart discovery; and it has 
produced totally illegible discovery. DuPont has purposefully 
set upon a course of conduct that has served as a complete 
denial of Plaintiffs' right to have its day in court. This Court 
has no choice but to strike DuPont's pleadings and enter a 
default judgment.

84. This Court hopes and believes that imposing this fine and 
striking the pleadings will impress upon DuPont and its 
counsel the importance of proceeding under the rules of civil 
procedure and canons of ethics.

85. These sanctions are limited solely to those items outlined 
above, and in no way reflect on DuPont or its counsel's 
further involvement in this case and the discovery process.

DONE AND ORDERED in Miami, Dade County, Florida 
this 5th day of August, 1996, nunc pro tunc as of June 21, 
1996. 

/s/AMY STEELE DONNER

CIRCUIT COURT JUDGE

cc: all counsel of record