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the Court of Appeals did not find that this Court’s evidentiary
hearing or findings of fact on the misconduct of respondent’s
attorneys were inadequate or did not otherwise comply with its
mandate in DuFresne. Nor did the Court of Appeals address much
less find error in this Court’s denial of Izen’s discovery
requests or order us to conduct an evidentiary hearing regarding
the continued misconduct alleged by Izen.
During the proceedings on remand from the Court of Appeals
opinion in Dixon V, this Court, in an order issued October 12,
2004, allowed petitioners’ renewed discovery requests (that the
Court had originally denied in the proceedings on remand from
DuFresne) for the limited purpose of ascertaining respondent’s
understanding of the origins and nature of the Thompson
settlement. With one exception,9 the Court ordered the
9This Court sustained respondent’s invocation of the
deliberative process privilege to deny petitioners access to the
material described in item 123 of respondent’s privilege log,
because the material was not probative of respondent’s
understanding of the origins and nature of the Thompson
settlement. Item 123 consisted of a chronological file of 16
volumes comprising more than 1,200 items and 5,000 pages created
and maintained by respondent’s counsel Henry E. O’Neill
(O’Neill). However, in note 2 of the Oct. 12, 2004, order, the
Court anticipated and cautioned that the documents and materials
in item 123 might be required to be produced at some later time
in connection with pending and proposed motions for leave to file
motions to vacate decisions in cases in which stipulated
decisions have been entered that may raise questions regarding
the adequacy of respondent’s disclosure of the misconduct of
McWade and Sims and the procedural status of the test cases.
That subject will be addressed in pending proceedings on the
motions for leave to file motions to vacate stipulated decisions
(continued...)
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