Insurance Law

McIntosh v. State Farm update, June 2

By David Rossmiller

The latest filings in the McIntosh case's latest flare-up over discovery issues includes this interesting question posed in State Farm's brief in response to Dickie and Zach Scruggs' objections to Judge Walker's order compelling production of certain documents:

Yet continuing their quest not to produce any documents, despite the substantial reduction in their scope, the Scruggses have filed another objection with this Court, thus causing one to wonder: What information could possibly be contained in those documents that the Scruggses so desperately want to keep from ever seeing the light of day?

The briefing for discovery fights in cases involving Scruggs and the former Scruggs Katrina Group provides some of the best details available as to Scruggs' methods of conducting litigation.  For example, read this passage from the same State Farm brief: 

Laboring under the misimpression that Judge Walker was required to address each and every ground asserted by the Scruggses – and, by extension, the Rigsbys and the Plaintiffs – they complain that Judge Walker did not address their argument that the subpoena implicates their Fifth Amendment right against self-incrimination. See Doc. 1201 at 8. Incredibly, the Scruggses go so far as to suggest that “[t]hese objections are even more compelling now in light of the Scruggses’ guilty pleas in the criminal matter pending in the Northern District, for which they still await sentencing.” Id. (emphasis added). Having already confessed guilt, it is difficult to comprehend how the mere production of documents in an unrelated civil matter somehow increases the risk that they will incriminate themselves. That they have already done – in open court.

The Scruggses’ speculation that producing the documents “may” subject them to some undefined outcome in the civil case pending before Judge Acker in Alabama or a more severe sentence in the Northern District for their roles in the bribery of a judge – as if that offense, which strikes at the heart of the judicial system, does not already carry a stiff penalty – does not demonstrate that Judge Walker’s ruling was clearly erroneous or contrary to law.

Yet one need not read too far between the lines to recognize the apparent subtext. Scruggs has already came perilously close to a contempt citation for failing to follow the Order of Chief Judge Mills in the Northern District of Mississippi, which denied Scruggs’ motion to quash State Farm’s subpoena for his deposition in State Farm v. Hood, No. 2:07-cv-188-DCB-MTP (S.D. Miss.). Judge Mills found that despite the fact that “the court’s intent [in its order] … should have been clear to all parties,” Scruggs “appears to have used” certain language in the order “for tactical purposes, to limit” State Farm’s rights – conduct which Judge Mills ruled “is clearly unacceptable, and the court will not tolerate any further attempts to violate its … order,” and that “[a]ny future non-compliance… will be dealt with as contempt.” See State Farm v. Hood, No. 3:08-cv-00012-MPM (N.D.Miss. Feb. 4, 2008) (Doc. 18); McIntosh Docs. 1131, 1131-2.

Sham consultant arrangements with the Rigsbys, discussions with material witness Brian Ford about a consultant agreement, "whistleblowers" illicitly taking records, playing keep away with documents with the assistance of state law enforcement officials, dubious assertions of attorney-client privilege to prevent question at depositions, all of these things happened, and more, during Katrina litigation.  I wonder what the answer is to the question posed above -- what might be in the documents requested? For instance, what would be revealed in the production of documents as to the identity of the supposed source in Bloomington feeding State Farm information to Scruggs? That there wasn't one?  Maybe.  Time will tell the story. 

Incidentally, here's a letter to Judge Walker from counsel for E.A. Renfroe, the Rigsby sisters' ex-employer, about these discovery disputes. 

Full post as published by Insurance Coverage Law Blog on June 02, 2008 (boomark / email).