Drummond Company, Inc. v. Collingsworth et al
Filing
668
MEMORANDUM OPINION AND ORDER - The Special Master has submitted five Reports and Recommendations regarding the application of the crime-fraud exception to the attorney-client and work product privileges. (Docs. # 569 , 572 , 590 , 622 , 633 ). This matter is before the court on Defendant Terry Collingsworth's objections to those Reports and Recommendations. (Doc. # 634 ). Signed by Judge R David Proctor on 3/18/2021. (KEK)
FILED
2021 Mar-18 PM 03:28
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DRUMMOND COMPANY, INC.,
Plaintiff,
v.
TERRENCE P. COLLINGSWORTH,
individually and as an agent of Conrad &
Scherer, LLP; and CONRAD & SCHERER,
LLP,
Defendants.
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Case No.: 2:11-cv-3695-RDP
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MEMORANDUM OPINION AND ORDER
The Special Master has submitted five Reports and Recommendations regarding the
application of the crime-fraud exception to the attorney-client and work product privileges. (Docs.
# 569, 572, 590, 622, 633). This matter is before the court on Defendant Terry Collingsworth’s
objections to those Reports and Recommendations. (Doc. # 634).
I.
Background
Lest we forget why the parties and the court are going through this arduous process, a quick
reminder may be in order. It came to the parties and the court’s attention that Collingsworth, a
Defendant in this case and Plaintiffs’ counsel in a number of cases against Drummond Company,
Inc. (which is the Plaintiff in this case), had made payments to certain witnesses related to those
prior cases against Drummond. “Drummond served discovery requests about the methods
Collingsworth and his litigation team had used in the alien tort cases to secure testimony from the
witnesses, including information about any payments made to the witnesses.” Drummond Co., Inc.
v. Conrad & Scherer, LLP, 885 F.3d 1324, 1330 (11th Cir. 2018). This court determined that those
witness payments were a proper subject of discovery in this case. (Doc. # 64 at 3-4).
During the course of this litigation and other matters, Collingsworth “repeatedly made
knowingly false representations in pleadings, affidavits, correspondence, and open court [which]
rise[] far above the level of mere discovery violations.” (Doc. # 417 at 17). The years-long series
of false representations are set forth in detail in the court’s December 7, 2015 Memorandum
Opinion and Order at pages 8-17. (Doc. # 417 at 8-17).
Collingsworth and Conrad & Scherer asserted that much of the discovery into witness
payments was precluded by the attorney-client privilege or the work product privilege. (See, e.g.,
Doc. # 62). In response, “Drummond asked the court to hold that the crime-fraud exception vitiated
Collingsworth and C&S’s claims of attorney-client privilege and work product protection.”
Drummond, 885 F.3d at 1331. This court “made a preliminary determination that the crime-fraud
exception may apply to overcome their assertions of privilege and attorney work product
protection and ordered a special master to perform an in camera review to determine whether the
crime-fraud exception does apply.” Id. at 1327. Specifically, the court “determined that the crimefraud exception’s first prong was satisfied as to three crimes: fraud on the court1, witness bribery,
and suborning perjury.” Id. at 1332. The court certified its order for immediate appeal. (Doc. # 417
at 49).
Fraud on the court is a particular type of fraud “which does[,] or attempts to, defile the court itself, or is a
fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial
task of adjudging cases.” Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (internal marks omitted).
Fraud among parties, without more, or fraud that can be exposed at trial, such as perjury, is not fraud on the court. Id.
Instead, fraud on the court involves “the most egregious misconduct, such as bribery of a judge or members of a jury,
or the fabrication of evidence by a party in which an attorney is implicated.” Gupta v. U.S. Atty. Gen., 2014 WL
685403, at *1 (11th Cir. 2014) (internal marks omitted). Thus, fraud on the court generally involves “‘an
unconscionable plan or scheme’ to improperly influence the court’s decision.” Gupta v. Walt Disney World Co., 519
F. App’x 631, 32 (11th Cir. 2013) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978)).
1
2
Collingsworth and C&S filed separate petitions with the Eleventh Circuit, seeking
permission to file interlocutory appeals from this court’s order. Drummond, 885 F.3d at 1334. Two
different motion panels ruled on the petitions. Collingsworth’s petition was denied. (Doc. #457).
A separate motion panel granted Conrad & Scherer’s petition, but limited review to the following
two questions:
1. Can agency principles be used to impute the application of the crime-fraud
exception to an agent’s principal where the principal has separately-held privileges
as a co-defendant in the suit and there is no finding that the exception applies
directly to the principal?
2. Can agency principles be used to impute the application of the crime-fraud
exception to an agent’s principal where the agent is operating as an attorney and
there is no finding that the client’s behavior triggered the crime-fraud exception or
that the exception applies directly to the principal?
(Doc. # 453).
Conrad & Scherer then filed a motion to confirm exclusive jurisdiction over this court’s
December 7, 2015 order; which was granted by a third motions panel. That panel expanded the
scope of appellate review (see id. at 2) (“[T]he entire Order is before us on appeal.”) and divested
this court of jurisdiction over all aspects of the order (id. at 4). (See id. at 4) (“This means that the
district court lacks the authority to order any further discovery of the materials that are the subject
of its crime-fraud Order, unless we direct that it may proceed as to a portion of those materials.”).
After briefing and oral argument, the merits panel concluded that interlocutory review was
only appropriate to address one aspect of this court’s order. Id. at 1328. Therefore, it vacated in
part as improvidently granted the third motion panel’s order. Id. It elected not to review the
question of whether this court erred in applying agency principles to conclude that Conrad &
Scherer intended to commit a crime or fraud and created attorney work product or made
communications in furtherance of the crime or fraud because it did not present a pure question of
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law suitable for review on an interlocutory basis under § 1292(b).2 Id. The merits panel did address
the following question:
[W]hether the crime-fraud exception may be applied to overcome C&S’s assertion,
as a defendant in this case, that its materials related to other lawsuits where it served
as counsel are protected as attorney work product when the firm’s clients in those
lawsuits were innocent of any wrongdoing.
Id. As the court concluded:
the crime-fraud exception may defeat work product protection in this circumstance.
We thus affirm the part of the district court’s order determining that the crime-fraud
exception could be applied to overcome C&S’s claim of work product protection
for materials related to lawsuits where C&S served as counsel despite the fact that
its clients were innocent of wrongdoing.
Id.
The parties mutually agreed that it was appropriate to appoint a Special Master to oversee
discovery in this action. The parties also stipulated that T. Michael Brown, Esq. of the law firm
Bradley Arant Boult Cummings LLP should be appointed as Special Master. (Doc. # 128). The
Special Master has performed an in camera review of certain categories of documents that
Defendants contend are protected by the attorney client privilege or work product protection.
Pursuant to the Eleventh Circuit’s directive, and because this court had already found that there
had been a prima facie showing that Defendants had engaged in criminal or fraudulent conduct,
The Special Master reviewed the documents to determine whether each document “(1) reflects a
2
Actually, the court concluded that Conrad & Scherer was subject to the crime-fraud exception based upon
agency principles and its own conduct. As the court noted in its December 7, 2015 order:
it would be incredulous to believe that no one at Conrad & Scherer other than Collingsworth knew
of the payments made to witnesses in this case. Payments were delivered on a monthly basis by the
firm, using the firm’s money, and through the firm’s normal approval process as documented in the
firm’s business records. (Doc. #405 at 1-4). As of May 23, 2011, at a minimum, Terrence
Collingsworth, Bill Scherer, Richard Drath, Billy Scherer, Susana Tellez, Lorraine Leete, Victoria
Ryan, Pauline Kroper, and Danielle Kisslan had all received written notice that El Tigre and Samario
had been paid. (See Doc. #402 at 1-4).
(Doc. 417 at 20 n.15).
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communication used to further a crime or fraud or was closely related to it or (2) was created to
further a crime or fraud or was closely related to it.” Drummond, 885 F.3d at 1339, n.14. The court
instructed, and the Special Master acknowledged, that when evaluating the second prong of the
crime-fraud exception, the requirement that the document or communication be made in
furtherance of or related to fraudulent conduct “should not be interpreted restrictively.” In re
Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1227 (11th Cir. 1987). See also Doc. # 417
at 5; Doc. # 569 at 21, n.10.
The Special Master has submitted five Reports and Recommendations. (Docs. # 569, 572,
590, 622, 633). In each of his Reports and Recommendations, the Special Master organized his
recommendations by category, and listed the documents in each category in the exhibits thereto.
The Special Master has reported that documents listed in Exhibit A constitute attorney work
product and/or attorney-client communications, do not facially fall under any exception to the
work product protection or attorney-client privilege, and are therefore privileged. The Special
Master has reported that documents listed in Exhibit B should be produced pursuant to the crimefraud exception because they reflect documents and communications that relate closely to or are
in furtherance of the alleged criminal and/or fraudulent activities that were the subject of the
court’s previous order. (Doc. # 64). The Special Master has reported that documents listed in
Exhibit C should be produced because they do not constitute work product or attorney-client
communications, or because the claimed privilege has been waived through disclosure to a third
party. In the first three Reports and Recommendations, the Special Master identified another
category of documents, listed in Exhibit D, for which he recommended production after the
redaction of certain privileged information.
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In light of (1) the sheer number of documents claimed as privileged by the Defendants, (2)
the fact that Drummond has generally challenged the claim of privilege as to each and every
document logged (thus requiring the Special Master to review more than 18,000 documents), and
(3) the number of objections raised by the parties to the Special Master’s reports and
recommendations, the court required the parties to review and recertify their objections to the first
three Reports and Recommendations. The purpose of this process was to reduce the number of
documents at issue. Unfortunately, these efforts did not prove particularly helpful. The parties have
also filed objections to the last two reports and recommendations issued by the Special Master
after the recertification order.
II.
Applicable Law and Standard of Review
As the Eleventh Circuit has explained, the crime-fraud exception to the attorney-client and
work product privileges:
allows a party—in rare circumstances—to obtain discovery that otherwise would
be protected by the attorney-client privilege or the attorney work product doctrine.
The crime-fraud exception applies when a two-part test is satisfied:
First, there must be a prima facie showing that the client was engaged in
criminal or fraudulent conduct when he sought the advice of counsel, that
he was planning such conduct when he sought the advice of counsel, or that
he committed a crime or fraud subsequent to receiving the benefit of
counsel's advice. Second, there must be a showing that the attorney's
assistance was obtained in furtherance of the criminal or fraudulent activity
or was closely related to it.
[In re Grand Jury Investigation, 842 F.2d 1223, 1226 (11th Cir. 1987)]. Stated
simply, the crime-fraud exception removes the “seal of secrecy” from attorneyclient communications or work product materials when they are made in
furtherance of an ongoing or future crime or fraud. [United States v. Zolin, 491 U.S.
554, 56 (1989); see Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 14–22 (11th
Cir. 1994)] (recognizing that the crime-fraud exception “applies to work-product in
the same way that it applies to the attorney-client privilege”). When the crime-fraud
exception applies, an attorney’s opinion work product is discoverable. Cox, 17 F.3d
at 1422.
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Drummond, 885 F.3d at 1335. “[F]or the crime-fraud exception to apply, a court must find that the
specific document or testimony that the court is ordering to be produced reflects work of the
attorney that was performed in furtherance of the criminal or fraudulent activity or that was closely
related to it.” Drummond, 885 F.3d at 1338 (emphasis added). In remanding the case for the
Special Master’s in camera review of documents, the Eleventh Circuit specifically instructed: “[t]o
conclude that the crime-fraud exception applies to require disclosure of any specific document, the
special master must find that the document either (1) reflects a communication used to further a
crime or fraud or was closely related to it or (2) was created to further a crime or fraud or was
closely related to it. Id., at 1339, n.14 (emphasis added) (citing Cox, 17 F.3d at 1422; In re Grand
Jury Investigation, 842 F.2d at 1227). This is not merely the applicable law, this is the law of this
case.
Federal Rule of Civil Procedure 53 sets forth the appropriate standard of review for a
district court in reviewing recommendations made by a Special Master. Rule 53(f)(3) provides as
follows:
Reviewing Factual Findings. The court must decide de novo all objections to
findings of fact made or recommended by a master, unless the parties, with the
court's approval, stipulate that:
(A) the findings will be reviewed for clear error; or
(B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) will be final.
Fed.R.Civ.P. 53(f)(3). Rule 53(f)(4) controls the court’s review of legal conclusions:
Reviewing Legal Conclusions. The court must decide de novo all objections to
conclusions of law made or recommended by a master.
In acting on a report and recommendation, the court must afford the parties an opportunity
to be heard. Fed. R. Civ. P. 53(f)(1). “The requirement that the court must afford an opportunity
to be heard can be satisfied by taking written submissions when the court acts on the report without
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taking live testimony.” Fed. R. Civ. P. 53, Advisory Committee’s note to the 2003 amendments.
The court may “adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the
master with instructions.” Fed. R. Civ. P. 53(f)(1). Consistent with Rule 53, the court will review
all objections to the Special Master’s privilege findings based upon the correct standard of review.
III.
Analysis
There are currently five Reports and Recommendations of the Special Master to which the
parties have filed objections or re-certified objections:
1.
February 14, 2019 Amended Report and Recommendation Regarding Claims of
Privilege Over Documents Logged as “Bucket 2” on Defendants’ Privilege Logs (Doc. #
569);
2.
February 28, 2019 Amended Report and Recommendation Regarding Claims of
Privilege Over Documents Related to Ivan Otero (Doc. # 572);
3.
September 23, 2019 Report and Recommendation Regarding Documents
Potentially Related to Witness Payments (Doc. # 590);
4.
March 25, 2020 Report and Recommendation Regarding Witness Payments (Doc.
# 622); and
5.
June 1, 2020 Report and Recommendation Regarding Certain Uncategorized
Documents (Doc. # 633).
The parties have re-certified their objections to the first three Reports and Recommendations and
have filed objections following recertification to the last two.
A.
Collingsworth’s Objections
In an attempt to reduce the number of documents at issue in relation to the court’s crimefraud review, the court directed the parties to “attest[] that these re-certifications have been made
in good faith taking into account Eleventh Circuit precedent and the law of the case.” (Doc. # 620
at 2-3). Defendant Collingsworth filed one Certification of Objections to Reports and
Recommendations, which contains a general objection to all five of the Special Master’s Reports
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and Recommendations. (Doc. # 634). Alternatively, however, he states that he “joins in [Conrad
& Scherer’s objections] and adopts them as if fully incorporated.” (Doc. # 634 at 3).
Prior to his re-certification, Collingsworth identified documents over which he maintains
objections to the Special Master’s first two Reports and Recommendations. At the court’s direction
(Doc. # 586), he provided copies of the documents which are the subject of his objections to the
court for in camera review. Also at the court’s direction, Collingsworth filed a Declaration in
Support of Certification of Objections.3
1.
The General Objection
Collingsworth’s Certification states that “for all documents in the Exhibit Bs to the five
R&Rs, Defendant Collingsworth renews and certifies his objections to the improper application of
the second prong of the crime fraud test, whether a specific document was ‘in furtherance of’ a
crime or fraud.’” (Doc. # 634 at 2) (emphasis in original). This statement of the “law” reveals
Collingsworth’s refusal to apply the legal standards applicable in this Circuit and already
pronounced as the law of this case. To reiterate, the law of this case, according to the Eleventh
Circuit, is that “for the crime-fraud exception to apply, a court must find that the specific document
or testimony that the court is ordering to be produced reflects work of the attorney that was
performed in furtherance of the criminal or fraudulent activity or that was closely related to it.”
Drummond, 885 F.3d at 1338 (emphasis added).
Collingsworth asserts, without providing any concrete examples tied to any particular
documents, that “the Special Master applied the overbroad ‘related to’ test rather than the required
‘in furtherance of the criminal or fraudulent activity or was closely related to it’ standard.” (Doc.
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Although the parties were to certify that their objections were made in good faith according to Eleventh
Circuit law, Collingsworth’s declaration states that all of his “objections … were made in good faith based on Eleventh
Circuit precedent concerning the scope of the second prong of the crime fraud test as well as based on precedent from
other Circuit Courts and other authority applying that standard.” (Doc. # 634-1 at 1-2) (emphasis added).
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# 634 at 7). Collingsworth argues that the Special Master’s “application of the standard continues
to be overbroad” and that “the proper standard of whether a specific document is ‘itself in
furtherance of the crime or fraud.’” (Id. at 8-9) (emphasis in original). For this formulation of the
crime-fraud test, Collingsworth cites cases from the Second and Fifth Circuits. But, it is the
Eleventh Circuit’s formulation that is binding on this court. Collingsworth’s assertions are
bottomed on an inapplicable standard, and they completely ignore the “or was closely related”
standard that our circuit has confirmed applies in this case. (Doc. 634 at 9-18).
Indeed, a careful review of it shows that Collingsworth’s entire Certification utterly
discounts the “closely related to” prong of the Eleventh Circuit’s test. And, it ignores the
disjunctive “or” between the “in furtherance of” prong and the “closely related to it” prong.
Drummond, 885 F.3d at 1338. It also incorrectly seeks to restrictively apply the second prong.
Schroeder, 842 F.2d at 1227. “Generally, the relatedness requirement ‘should not be interpreted
restrictively.’” Gutter v. E.I. Dupont De Nemours, 124 F. Supp. 2d 1291, 1314 (S.D. Fla. 2000)
(quoting Schroeder, 842 F.2d at 1227). Because Collingsworth’s objection rests on an improperly
narrow application of the relatedness prong, his general objection is OVERRULED.
2.
Documents Provided for In Camera Review
The court next turns to documents provided by Collingsworth for in camera review.
Document CSPRIV413500 is an Attorney Cooperation Agreement between Ivan Otero
and Terry Collingsworth dated January 27, 2009. Ivan Otero is the “Colombian attorney who
served as the intermediary for payments from [Conrad & Scherer] to El Tigre and Samario and
from van Bilderbeek to Blanco.” Drummond, 885 F.3d at 1333. The Agreement references certain
funds provided to Otero that will be “used to assist key witnesses with any security measures they
need [] to allow them to provide evidence for the case.” Defendants have consistently characterized
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the payments made to witnesses in this case as “security payments.” Of course, there is substantial
evidence to the contrary.4 Because the document is an agreement pursuant to which witness
payments were to be made, the court concludes that this document quite clearly reflects a
communication that is at the heart of the issue in this matter. Thus, the court quite easily concludes
that the document is discoverable because there is sufficient evidence that it was in furtherance of
“a crime or fraud or was closely related to it” and/or “was created to further a crime or fraud or
was closely related to it.” Id., at 1339, n.14. Therefore, Collingsworth’s objection to the
determination that Document CSPRIV413500 is subject to the crime fraud exception is
OVERRULED.
Document CSPRIV413501 appears to be a contract between Collingsworth and a client,
Rafael Garcia Torres dated November 20, 2008. Although it is in Spanish, it does not appear to
“reflect a communication used to further a crime or fraud or was closely related to it,” nor does it
appear it “was created to further a crime or fraud or was closely related to it.” Id., at 1339, n.14.
However, such agreements are generally not privileged. See Armor Screen Corp. v. Storm Catcher,
Inc., 2009 WL 2767664, at *2 (S.D. Fla. Aug. 31, 2009) (“the communication of factual
information, such as reports containing a litigation’s status, fee agreements, and retainer
agreements are generally not protected by the attorney-client privilege”) (citing O'Neal v. United
States, 258 F.3d 1265, 1276 (11th Cir. 2001)) (“it is the law of this Circuit that information
involving receipt of attorneys’ fees from a client is not generally privileged”). Indeed, the “great
4
For example, and this is but one example, on May 22, 2011, Collingsworth emailed lawyers at the Parker
Waichmann firm and informed them that he had already paid Otero, Samario, and El Tigre $5400 in cash and that
Conrad & Scherer would be making monthly $2700 payments to Samario and El Tigre “until we get the deps in the
can.” (Doc. #174-6). Bill Scherer and Richard Draft (then the CEO of Conrad & Scherer) were copied on the email
and it was forwarded to Bill Scherer’s son, Billy Scherer. (Doc. #174-6; Doc. #311-2 at 232:1-25). Making “security
payments” to a witness until his deposition is concluded, and then ceasing those payments once the “deps [are] in the
can,” is hardly consistent with security concerns for that witness.
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weight of authority ... refuses to extend the attorney-client privilege to the fact of consultation or
employment, including the component facts of the identity of the client and the lawyer.” Howell
v. Jones, 516 F.2d 53, 58 (5th Cir. 1975).5 Therefore, Collingsworth’s objection to the
determination that Document CSPRIV413501 is due to be produced is OVERRULED.
Document CSPRIV441001 is a two-page e-mail chain between Collingsworth and
Lorraine Leete, a lawyer and member of Collingsworth’s litigation team, regarding methods of
providing security for Ivan Otero, including whether and how to provide funds for an armored car
versus temporarily relocating Otero. Although the communication is between two lawyers, it
appears to relate to business and practical matters, rather than any legal or strategic matters. See In
re Vioxx Prod. Liab. Litig., 501 F. Supp. 2d at 797 (citing In re CFS-Related Securities Fraud
Litigation, 223 F.R.D. 631 (N.D. Okla. 2004) (“Business advice, unrelated to legal advice, is not
protected by the privilege even though conveyed by an attorney to the client.”)). Therefore, it does
not appear to be a privileged communication. Collingsworth’s objection to the determination that
Document CSPRIV441001 is due to be produced is OVERRULED.
Document CSPRIV469107 is an e-mail chain dated September 25, 2012, entitled “CS and
$$$”, with the original e-mail from Collingsworth to Leete and other lawyers involved in the
Drummond case, and possibly other cases. The e-mail concerns a conversation between
Collingsworth and Conrad & Scherer’s CFO, Richard Drath, regarding “payments for offices in
Columbia, security for Ivan, etc.” Although the communication is between lawyers, it appears to
relate to business and financial matters, rather than legal or strategic matters. See In re Vioxx Prod.
Liab. Litig., 501 F. Supp. 2d at 797 (citing In re CFS-Related Securities Fraud Litigation, 223
F.R.D. 631 (N.D. Okla. 2004) (“Business advice, unrelated to legal advice, is not protected by the
5
The decisions of the former Fifth Circuit handed down before October 1, 1981, are binding in the
Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
12
privilege even though conveyed by an attorney to the client.”)). Therefore, it does not appear to be
a privileged communication. Moreover, even if it were privileged (and again, it is not), the
document relates to payments to Otero, who facilitated payments to witnesses; therefore, it may
constitute a communication that “was created to further a crime or fraud or was closely related to
it.” Drummond, 885 F.3d at 1339, n.14. Therefore, Collingsworth’s objection to the determination
that Document CSPRIV469107 is due to be produced is OVERRULED.
Document CSPRIV469125 is an e-mail chain between Collingsworth, Richard Drath,
William Scherer, Lorraine Leete, and others regarding budgets for cases against Drummond,
Chiquita, and Dole. While the budgets may be privileged as revealing case strategy, the e-mails
themselves provide no details that reflect any case strategy. The only detail mentioned in the emails is the salary of a particular employee who had received a raise.
Although the
communications are between lawyers, they appear to relate to business and financial matters, rather
than legal or strategic matters. See In re Vioxx Prod. Liab. Litig., 501 F. Supp. 2d at 797 (citing In
re CFS-Related Securities Fraud Litigation, 223 F.R.D. 631 (N.D. Okla. 2004) (“Business advice,
unrelated to legal advice, is not protected by the privilege even though conveyed by an attorney to
the client.”)). Because it does not appear to be a privileged communication, Collingsworth’s
objection to the determination that Document CSPRIV469125 is due to be produced is
OVERRULED.
Document CSPRIV520559 is a four page document entitled “Specific Categories of
Requests” which appears to be an attorney or paraprofessional’s analysis of responses to
interrogatories and requests for production of documents seeking information regarding “payments
to, or other improper influence of, witnesses.” The document quotes extensively from evidence
either already produced to Drummond or filed with the court regarding security for witnesses. The
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court finds that the document is due to be produced in its entirety, without redactions, because its
provisions are “closely related to” the alleged crimes or frauds related to fraud on the court, witness
bribery, and suborning perjury. Therefore, Collingsworth’s objection to the determination that
Document CSPRIV520559 is due to be produced is OVERRULED.
Document CSPRIV520948 appears to be a memorandum from Collingsworth to his
counsel in this case regarding the “Human Rights Cases” and appears to be attorney-client
privileged or work product. However, portions of the document discuss payments for security and
witness payments. Those sections are closely related to or in furtherance of the crime of witness
bribery. Other portions of the document discuss responses to discovery requests and questions
from the court about security payments and those are closely related to the alleged fraud on the
court. Both of these portions are due to be produced under the crime-fraud exception. The
remainder of the memorandum may be redacted as work product. Therefore, Collingsworth’s
objection to the determination that portions of Document CSPRIV520948 are due to be produced
is OVERRULED.
Document CSPRIV521233 is a memorandum among Collingsworth’s legal team dated
July 2, 2012 regarding document production and would appear to attorney-client privileged.
However, portions of the document discuss the production of documents related to payments to
Colombian witnesses and families. These portions are closely related to the crime of witness
bribery. Other portions of the document discuss the disclosure of payments to witnesses and are
closely related to or in furtherance of the alleged fraud on the court. Both of these portions should
be produced under the crime-fraud exception. The remainder of the memorandum may be redacted
as work product. Therefore, Collingsworth’s objection to the determination that portions of
Document CSPRIV521233 are due to be produced is OVERRULED.
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Document CSPRIV521873 is four pages in length and appears to have been prepared by
Collingsworth’s legal team discussing responses to discovery requests related to witness payments.
The Special Master reported that the first page, which pertains to production of payment-related
documents to Drummond, is closely related to the alleged crime of witness bribery and to the
alleged fraud on the court and should be produced. He recommended that the remainder of the
document should be redacted as work product. The court agrees that the first page is closely related
to witness bribery and fraud on the court and should be produced. Therefore, Collingsworth’s
objection to the determination that the first page of Document CSPRIV521873 is due to be
produced is OVERRULED.
Document CSPRIV522923 is ten pages in length and consists of an e-mail chain among
Collingsworth’s legal team during the period October 28 through November 2, 2011. Some of the
e-mails discuss payments to witness and witnesses’ security needs. The Special Master reported
that the e-mails are closely related to or in furtherance of the crime of witness bribery and should
be produced. The court agrees. Although the remainder of the document may be redacted,
Collingsworth’s objection to the determination that the portions identified by the Special Master
of Document CSPRIV522923 are due to be produced is OVERRULED.
Having reviewed the documents submitted to it by Collingsworth for in camera review, the
next question is what should occur with the documents submitted by Conrad & Scherer for in
camera review. Those documents, over which Conrad & Scherer still maintains an objection, will
be addressed in a separate order.
3.
Production of Subject Documents
Because Collingsworth’s Certification of Objections (Doc. # 634) (1) is primarily based on
law that is not applicable in the Eleventh Circuit and not the law of this case, and (2) seeks to apply
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an improperly narrow interpretation of the relatedness requirement of the crime-fraud exception,
his blanket objections are OVERRULED. The Special Master SHALL produce to Drummond all
documents that (1) he has reviewed and recommended be produced pursuant to the crime-fraud
exception, and (2) over which Conrad and Scherer has not re-certified an objection.
There are approximately 1,800 to 1,900 documents which the Special Master has not yet
reviewed, but over which Conrad & Scherer has withdrawn its claim of privilege. (Doc. # 641 at
18; Doc. 641-10). Conrad & Scherer has not already produced these documents because
Collingsworth has objected to the production of any documents not yet subject to a report and
recommendation by the Special Master. (Doc. # 641-9). That is, in light of Conrad & Scherer’s
withdrawal of its privilege claims over these documents, but for Collingsworth’s blanket objection
to their production, the documents would have already been produced. (Doc. # 641-10).
Drummond argues that the Special Master should also produce these 1,800 to 1,900 documents.
(Id.). At this time, the court will not order production of these documents. However, Collingsworth
SHALL revisit whether he seeks to maintain any objection to their production and, if so, state
specific objections. And, because Collingsworth’s objection is the sole hindrance to the production
of these documents, the court will set a hearing to address these documents separately.
4.
Interlocutory Appeal under 28 U.S.C. § 1292(b)
Despite the fact that this court and the Special Master have applied the second prong of the
crime-fraud exception as defined by the Eleventh Circuit in this case, Collingsworth asks this court
to certify for interlocutory appeal this court’s October 2019 application of the test to four
documents. (Doc. # 634 at 22).
Appellate review is generally postponed until after the entry of final judgment.
Certification is reserved for truly exceptional cases. Judicial Watch v. Nat’l Energy Policy Dev.,
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233 F.Supp.2d 16, 20 (D. D.C. 2002). “A party seeking certification pursuant to § 1292(b) must
meet a high standard to overcome the strong congressional policy against piecemeal reviews, and
against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.” Id.
(internal quotations and citation omitted). Because Section 1292(b) “is a departure from the normal
rule that only final judgments are appealable,” it “must be construed narrowly” and invoked only
in “rare circumstances.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002).
A court may certify an issue for interlocutory appeal if three requirements are met: (1) “a
controlling question of law” must be present; (2) there must be a “substantial ground for difference
of opinion” as to the controlling question; and (3) “an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292(b). “The
preconditions for § 1292(b) review [] are most likely to be satisfied when a privilege ruling
involves a new legal question or is of special consequence, and district courts should not hesitate
to certify an interlocutory appeal in such cases.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
110–11 (2009). As the parties are keenly aware, the court has already certified a § 1292(b) appeal
in this case. After initially ruling on the application of the crime-fraud exception, the court granted
the Defendants’ motions and certified an interlocutory appeal. The Eleventh Circuit has given us
its answer. This court has applied the Eleventh Circuit’s ruling here. The privilege issues here do
not involve new legal questions. Rather, they involve a straight forward application of the Eleventh
Circuit’s prior ruling. See Drummond, 885 F.3d at 1339 n.13 (“To the extent that [Collingsworth]
disagrees with the district court’s application of the crime-fraud exception under the facts of this
case, it would be quibbling with the way that the district court balanced the clients’ interests in
secrecy against the need for disclosure in these particular circumstances, which would not raise a
pure issue of law appropriate for review under § 1292(b).”).
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The rulings made by the court regarding four documents -- over a year ago6 -- do not
involve rare or exceptional circumstances or pure issues of law which might warrant certification
pursuant to § 1292(b). Nor would an interlocutory appeal materially advance the ultimate
termination of this litigation. Therefore, Collingsworth’s request for an interlocutory appeal under
§ 1292(b) is DENIED.
B.
Drummond’s Objections
Drummond has asserted 1,426 objections to the Special Master’s Reports and
Recommendations. (Doc. # 666 at 3). Ruling on those objections would require the court to review,
in camera, those 1,426 documents, a time consuming process.
Because of the posture of this case, the court has prioritized review of the documents over
which Collingsworth and Conrad and Scherer have asserted objections. It has approached the
objections in this manner because where Collingsworth and Conrad and Scherer have objected to
the Special Master’s Reports and Recommendations, the court’s review serves to potentially
preserve appropriate privilege assertions. In contrast, in connection with Drummond’s objections
to the Special Master’s Reports and Recommendations, the issue is whether Drummond is entitled
to the production of documents that the Special Master has already recommended not be produced
because they are privileged and do not fall within the crime-fraud exception. Therefore, the court
“There is no time limit in the statute or in any applicable rules for seeking the district judge’s
permission to appeal under 1292(b) ... [b]ut a district judge should not grant an inexcusably dilatory
request.” Richardson Elecs., Ltd. v. Panache Broad. of Pa., Inc., 202 F.3d 957, 958 (7th Cir. 2000)
(citations omitted). “In the context of requests for interlocutory appeals, timely requests for
certification are calculated in days, not months.” Fabricant v. Sears Roebuck & Co., 2001 U.S. Dist.
LEXIS 24518 (S.D. Fla. 2001) (unjustified delay of forty-six days rendered motion untimely) citing
Richardson, 202 F.3d at 958 (two month delay rendered motion untimely) and Morton College Bd.
of Trustees v. Town of Cicero, 25 F. Supp. 2d 882, 883 (N.D. Ill. 1998) (thirty day delay rendered
motion untimely). See also Ferraro v. Sec’y of U.S. Dep’t of Health & Human Servs., 780 F.Supp.
978 (E.D.N.Y. 1992) (delay of almost two and a half months militated against the granting of
certification for interlocutory appeal).
6
Bell v. Sys., 2005 WL 8158592, at *1 (S.D. Ala. Feb. 10, 2005).
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prioritized rulings on Defendants’ objections and has not yet concluded its review of any of
Drummond’s objections.
On March 8, 2021, in an effort to facilitate the court’s review and rulings with respect to
the Reports and Recommendations, Drummond withdrew all of its objections to the pending
Reports and recommendations that the court has not yet reviewed. (Doc. # 666 at 3).Therefore,
Drummond’s objections to the Special Master’s Report and Recommendations are OVERRULED
as withdrawn.
C.
Conrad & Scherer’s Objections
The court will address Conrad & Scherer’s objections by separate order.
DONE and ORDERED this March 18, 2021.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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