Insurance Law

Update on McIntosh v. State Farm case, May 19

By David Rossmiller

I've got a lot of catching up to do, but thanks to all those who e-mailed ideas for posts.  I'll work my way through those as time allows, but for now, let's look at Magistrate Judge Robert Walker's rulings on Friday in the Verdun-like battle of McIntosh v. State Farm. 

As you may recall, State Farm issued a number of discovery requests in this case last year when it noticed the depositions of Dickie and Zach Scruggs, and these depositions have been held up while various other things happened:

• Scruggs got indicted and pleaded guilty;
• Scruggs withdrew from the case and all other cases;
• the Katrina(less) Litigation Group, the rump successor to the Scruggs(less) Katrina Group, was disqualified from the case for ethics reasons:
• the Rigsby sisters were disqualified as witnesses for ethics reasons;
• the illicitly obtained State Farm documents were barred as evidence for ethics reasons, except where they had been obtained through lawful discovery; and
• the February trial date was postponed as totally impractical.   

Scruggs and the Rigsbys objected to this discovery, and in a series of rulings dating to December, including this one Friday, Walker has largely said these objections based on attorney-client privilege are bogus.    

Let's look at a paragraph from Judge Walker's ruling:

The Rigsbys appear to claim some protected interest in the State Farm documents they provided the Scruggses and law enforcement agencies. The Court has previously ruled that the Scruggses undertaking representation of the Rigsbys does not transform “everything [the Rigsbys] ... physically took from [Renfroe/State Farm] into privileged information...” Those documents are discoverable, and are not protected by attorney-client privilege or attorney work product. The Rigsbys attempt to be more specific in their objections to the subpoenas, but their opposition, like that of the McIntoshes, is essentially a broad claim that the subpoenas call for documents protected by privilege. As with the McIntoshes’ motion, the Court has simply not been presented sufficient information to hold that any particular document request infringes on any legitimate privilege. The Court is not omniscient and cannot bar discovery based on speculation that a request might lead to disclosure of privileged information. 

That is a remarkable position, isn't it? That the documents you illicitly take from someone are protected from discovery by that person?  Wow.  It's embarrassingly foolish, to put a word on it.  Lots of things are not covered by attorney-client privilege, including actions like taking documents and the documents themselves.  As said in the immortal Coen brothers movie The Big Lebowski, "This isn't Vietnam, there are rules." 

Let's look at something else, from Judge Walker's rulings on specific State Farm discovery requests. 

Request No. 23 seeks documents “picked up or otherwise retrieved by Richard Scruggs from a highly placed source at State Farm on a trip to Bloomington, Illinois, which Richard Scruggs referenced in a March 30, 2006 interview.” The Scruggses’ objection to this request is that it is “not reasonably calculated to lead to discoverable evidence” in the McIntosh case and that the documents are privileged “to the extent that they were provided by individuals who are clients or former clients of Messrs. Scruggs.” The Court has been provided nothing upon which to base a finding of privilege, and orders Richard Scruggs to produce the requested documents.

I don't recall this interview that is mentioned here.  What is this, a case of Scruggsian bombast and psychological warfare?  Who at Bloomington, the headquarters of State Farm, would have so lost any remaining impulses of self-preservation as to give documents to Scruggs?  No one, I suspect, but I guess we will find out, because the Court ordered Scruggs to turn over these documents.

As I said, I'll work my way through the stories that have piled up as I have time over the coming week, which will be another very busy one.  Catch you in the next post.

Full post as published by Insurance Coverage Law Blog on May 19, 2008 (boomark / email).