...given the lack of clarity as to what Plaintiffs actually plan to prove, Renfroe can only guess as to how Plaintiffs will attempt to meet their burden of proof against Renfroe. As a result, Renfroe cannot possibly identify every single occasion that might conceivably arise at the trial of this matter that could potentially require Renfroe to reference the documents that were stolen by the Rigsbys or the fact that the McIntoshes’ former counsel were disqualified by this Court. (emphasis mine) [Response to Plaintiff McIntosh re: Motion in limine to preclude...mention of alleged "stolen" documents...]

A lack of clarity would be expected given the effort and expense Renfroe and State Farm have invested in creating confusion.  Renfroe wasn't a named defendant in the initial Complaint - IMO at the insistence of the Rigsby sisters; but, save that thought for another day.  However, Renfroe was added when the amended McIntosh complaint was filed.

What a surprise.
Who could foresee
I'd come to feel about you
What you'd felt about me?

While I don't know how the McIntoshes intend to meet the burden of proof against Renfroe; I'm confident Merlin and Nicholson have a plan.  It's just flat hard to miss the Renfroe-State Farm relationship and equally hard to believe Renfroe would have forgotten Isn't it rich? Are we a pair?

Isn't it bliss?
Don't you approve?
One who keeps tearing around,
One who can't move.

Moving - off the subject of "stolen" [sic] documents, that is - should provide the missing clarity. After all, there's no need to guess with the easily accessed law documenting nothing was stolen - even evidence collected before a qui tam case is considered, is protected according to my related research.

Of course, if I'd played mind games with Judge Walker and Judge Senter and convinced them the documents were stolen, I'd be a wreck about now- worried one or both of them would figure out we'd had our way with them and solved the problem - or so we thought at the time Judge Senter entered this Order.

Although plaintiffs may prevail on the merits of their claims for additional policy benefits and other extracontractual damages, including punitive damages if they establish bad faith on the part of State Farm or its agents, in the absence of any evidence that the plaintiffs relied upon State Farm’s damage assessment I can see no basis for a claim of fraud.It follows that Renfroe cannot have “aided and abetted” a fraud that did not occur.

Accordingly, I will grant both Renfroe and State Farm a partial summary judgment dismissing the plaintiffs’ claims of fraud and “aiding and abetting.” I will also grant Renfroe a partial summary judgment dismissing the plaintiffs’ claim for breach of “a duty of undivided loyalty.”

Don't you love farce?
My fault, I fear.
I thought that you'd want what I want -
Sorry, my dear.

The partial summary judgment was related to count seven of the amended complaint:

Negligent Performance of Renfroe's Undertaking Of Duty of Undivided Loyalty to Plaintiffs

the Court observed that under applicable Mississippi law, an independent adjustor does not owe the insured a fiduciary duty, a duty to act in good faith, or even a duty of reasonable care.

Judge Senter appropriately centered his decision around Renfroe's Code of Conduct and the related duties of an adjustor to the insured; but, I wish he'd taken a closer look at the ambiguity around the term "independent adjustor" as case law that doesn't clearly define the term, may or may not be applicable.

However, if adjustors are as independent as Senter suggests, then I see a conflict between the duty claimed by Renfroe in Alabama and the position Renfroe took in this Mississippi case.

Just when I'd stopped Opening doors,
Finally knowing The one that I wanted was yours,
Making my entrance again With my usual flair,
Sure of my lines, No one is there.

That conflict pales in comparison to these comments from the Response filed by Renfroe.

At this time and based on the current state of the record, Renfroe does not anticipate that it will attempt to introduce testimony by either Cori or Kerri Rigsby at trial.

Nor does Renfroe intend, based on the current state of the record, to introduce or rely on any documents which Cori or Kerri Rigsby are believed to have stolen from Renfroe or State Farm. Further, assuming neither the Rigsbys nor the stolen documents are referenced or relied upon by any other party in any way at trial, Renfroe does not intend to make reference to the Rigsbys, documents, the stolen documents themselves, or the disqualification of Plaintiffs’ former counsel.

Why, pray tell, is Renfroe so insistent on taking depositions from the Rigsbys? I have an idea and I bet its likely what keeps Renfroe guessing.

Isn't it rich?
Isn't it queer?
Losing my timing this late In my career?
And where are the clowns?
Quick, send in the clowns.
Don't bother - they're here.

qui tam translates to [he] who sues for the King and himself.  In our country...We the people are King; and, our homes - humble, grand, or Katrina cottage - our castles. The proper title of the Katrina qui tam case would be Nowdy, Sop, Belle... ex rel Rigsby. Of course,  it would have to include another 300 million plus names and that's just not possible.

Consequently, we the people are presented by the single name USA.

Not only did the Rigsbys' counsel honor all of us, they honored Judge Senter as well. They filed their Response with State Farm still holding all of the documents they requested through normal channels of discovery - holding on even after the Rigsbys' counsel filed an emergency motion with a scaled down the set of documents requested!

Class versus Crass

If you recall, there were three sets of dispositive motions detailed in this earlier post.  This Response is to the first set that seeks to dismiss the qui tam claim on the basis of lack of jurisdiction. One of the three statutory requirements related to jurisdiction is that the Relators must be an original source of the information provided the government.

Can you imagine having to make that case with the information still in State Farm's possession?

I certainly can't; not with a case this big; but, these guys are so comfortable with the knowledge base that this response reads like a conversation - not that they had much choice  without documents.  I'm guessing at least one member of the team has a photographic memory and just loves to read insurance case law.

They didn't even mention not having the documents until the very last item of the very last section - one paragraph, copied below with all emphasis mine.

As the Relators discussed in their Reply in Support of Discovery, they are the original sources of documents and information that they no longer have in their possession. Docket entry [221] at 3-5. Although the facts and authorities described above demonstrate that the Rigsbys do not even need to be an original source, and, in any event are an original source for the allegations regarding the details of State Farm’s fraudulent scheme, which includes the McIntosh, Mullins, and Vela-related claims, the Rigsbys respectfully submit that they will be able to provide even more information that will further support their status as original sources when State Farm produces documents pursuant to the Rigsbys’ expedited discovery requests. Indeed, the Rigsbys believe that those documents will reveal further specific instances of fraud, as will general discovery that will be taken in this case.

Class versus crass

Read this response if you don't ever read another document we link.  It tells the story of a very complex scheme in considerable detail, yet in a very simple way.

It's a story that I happen to believe is also a very simple truth - one that's been purposefully distorted and skillfully manipulated to not only discredit the Rigsby sisters and their qui tam claim; but also, IMO, to secure favorable rulings from the courts here and in Alabama.

The reason you have to link and read is that the rest of this post belongs to Cori and Kerri - a little space - just one example - but enough to let you see how testimony the Rigsby sisters have given in depositions has been distorted and manipulated as I and others contend.

State Farm cites Kerri Rigsby’s deposition testimony in Marion v. State Farm, No. 06-cv-969, to argue that there was no fraud in the McIntosh case because she believed at the time that there was at least $250,000 of flood damage to the McIntosh home. Mot. to Dismiss at 16.

In that deposition, Kerri Rigsby testified that she believed there was a significant amount of flood/water damage to the McIntosh home from Hurricane Katrina.

But Kerri, who is not an engineer, also testified that she initially reached those conclusions at a time when she still believed State Farm’s carefully fabricated storm model.

Indeed, she testified that State Farm presented the Haag Report to its adjusters and claims handlers as scientific fact and claimed that the storm surge had preceded Katrina’s devastating winds. McIntosh Depo. of K. Rigsby, May 1, 2007, 239:16-240:7.

Kerri further testified that she “bought right into the presentation [of the Haag report],” and “believed everything they told [her].” Id. at 240:3-5.

Most importantly, Kerri admitted in her May 2007 deposition that she should not have approved the payment of the McIntosh flood claim. Id. at 238:6-17.

McIntosh is more central to and significant in the qui tam case than I realized.  So the clarification achieved by putting testimony in context is important for purposes other than just setting the record straight as you'll see in the response.

Class versus Crass

Click that link and start reading.  Meanwhile, I can't think of a better way to end than with the opening statement of the response drafted by the Rigsby sisters' legal team.

The Rigsbys are quintessential whistleblowers who, as insiders with direct and independent knowledge, put the government on the trail of State Farm’s fraud. Accordingly, the Court should deny State Farm’s motion and turn its attention to the central issue in this case: State Farm’s fraudulent conduct.

NOTICE of HEARINGS: FINAL PRETRIAL CONFERENCE set for 9/8/2008, 1:30 P.M., before District Judge L. T. Senter Jr., JURY TRIAL set for 10/6/2008, 10:00 A.M., before District Judge L. T. Senter Jr.

Needless to say, the homestretch is posing a challenge.  It certainly is for non-lawyer me.  SLABBED is more than a year younger than the case and there are currently 1298 docket entries to plow through.  A good number of these entries will or seek to limit what the jury will be allowed to consider.  In the legal world these limitations are the result of what is known as a motion in limine.

...a motion, made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial... Usually it is used to shield the jury from possibly inadmissible and harmful evidence.

However, the Complaint (October 06) and its amended version (May 07) alone reflect a very simple, straight-forward case; albeit, one that slowed by the burden of 1296 other docket entries.  Believe it or not, the Complaint (amended) actually brought to mind the Rossmiller quote that I used in a recent post.

...tort law can and does impose liability for concurrent causes of damage, so limitations on that theory of causation, some will say, are inherently ambiguous.

Read the amended version, or re-read as the case may be, and see if you don't agree -  and if the irony of Scruggs proving Rossmiller's point isn't too much for you, check out my post.  Understanding the case from that point forward is a matter of cross-referencing various motions and orders with the amended Complaint.  A partial listing in suggested order is listed below:

• Order (April 08) disqualifying the Rigsby sisters and any related evidence not obtained through normal channels of discovery

• Order (April 08) granting and denying certain motions without prejudice - this is a big one that you can't miss as it lists the status of previously filed motions including, but not limited to, the granting of the following:motions filed by Defendant State Farm:

(1) preclude evidence of media reports regarding the Rigsby sisters; (2) preclude the testimony of Kerri Rigsby (or any other witness) expressing a legal opinion or conclusion that fraud occurred in adjusting the plaintiffs’ claim; (3) the issue of punitive damages will be tried separately from the issue of actual damages, although plaintiffs may refer
to punitive damages in the voir dire examination of the potential jurors; (4) exclude testimony in the form of legal opinions or testimony concerning the proper interpretation of the insurance contract at issue in this case...[as]...the interpretation of the policy being a matter of law; (5) exclude from evidence reference to any grand jury proceedings or government investigation of the actions of State Farm following Hurricane Katrina; (6) exclude evidence concerning Mississippi Senate Concurrent Resolution 574 concerning the Rigsby sisters; and (7) establish that the plaintiffs’ receipt of flood insurance benefits constitutes a judicial admission that flood damage occurred and precludes the plaintiffs’ denying that at least the amount of damage represented by the flood insurance payment was caused by flooding

• Defendant's motion to renew certain motions (August 08) - filed by State Farm last Friday relative to the Order listed above and separately filed motions in limine related to the following expert witnesses of the Plaintiff's.

Ralph Sinno; Keith Blackwell; David Favre; Patrick Fitzpatrick, and Richard Henning

• Plantiff's motions in limine (August 09)- also filed last Friday; three total:

(1) to preclude defendant's counsel from mentioning or soliciting testimony about the McIntosh's receipt of grant money for damage to their residence; (2) to preclude defendant's counsel from commenting on the absence of certain witnesses from trial or their failure to testify; and (3) to preclude defendant's counsel from any testimony, reference or mention that Cori and Kerri Rigsby "stole" documents while adjusting claims for State Farm and preclude defendants from elicting any testimony, reference, or mention of the disqualification of Plaintiff's former counsel.

Defendant State Farm filed two new motions in limine on Tuesday (September 08)- evidence, once again, of the need for a refresher in How to Win Friends and Influence People - (1) to exclude Plaintiff's undesignated expert witness Tim Ryals; and (2) to exclude or limit testimony of Plaintiff's expert witness Ralph Sinno (deposition included as exhibit).

No doubt, you, too, see Mr. Sinno listed twice.  It wasn't until I'd completed the post Wind damage really sucks and linked the past post on Lisanby v USAA that I realized Mr. Sinno was the engineer who testified for the Lisanby's in that case.

Little wonder State Farm wants to exclude his testimony. However, I simply don't agree with their conclusion.

Dr. Sinno should be precluded from testifying at trial entirely because his opinion is irreconcilable with the Plaintiffs’ conclusive judicial admission of flood damage.

State Farm is basing that conclusion on this claim:

Dr. Sinno’s opinion, as expressed in his Rule 26 report and deposition, is that wind was the cause of all of the damage to Plaintiffs’ home. Yet, this opinion is flatly inconsistent with Plaintiffs’ judicial admission and impermissible under the Court’s ruling.

I don't find Dr. Sinno's opinion inconsistent at all.  He is an engineer, a scientist, and in no way bound to tailor his professional opinion to the language of insurance policies.

If his professional opinion is inconsistent with the Court's ruling as State Farm's attorneys claim, Judge Senter will know that without their adamant insistence his thinking supports their position.

With two states of ambiguity, I wouldn't guess what anyone is thinking.

Now about that mule - if you get the bit too tight...

State Farm’s Response Memorandum severely complicates a simple request made by the Relators pursuant to this Court’s August 6, 2008 Order.

Einstein lives on in the Relators' Reply supporting their Motion for Expedited Document Requests and addressing objections raised in State Farm's Response.

Any fool can make things bigger, more complex, and more violent. It takes a touch of genius - and a lot of courage - to move in the opposite direction.

It took fewer than five pages of text (with footnotes and obligatory form deleted) for the Rigsbys counsel to make a simple but compelling argument supporting their simple request - and "a lot of courage" to move in the opposite direction with the ease apparent in the document filed today.

The Relators tried to make their request as simple and clear as possible by mirroring the words of Judge Acker’s preliminary injunction.

To make this even simpler for State Farm, however, the Relators are willing to streamline their request even further to the following: the set of documents that State Farm received pursuant to Judge Acker’s July 1, 2008 order.

This request now consists of nothing more than whatever discrete set of documents State Farm in fact received. Accordingly, State Farm can no longer argue regarding the scope of the request.

More than just courage, this "opposite direction" demonstrates the confidence the Rigsbys new counsel have in the merits of the qui tam claim.

The Relators are true whistleblowers. They are insiders who personally witnessed the events that form the basis of their complaint and the alleged fraud at issue. State Farm’s weak attempt to paint them as outsiders with no knowledge independent of public sources must fail.

The Relators’ knowledge of State Farm’s fraud is “direct and independent” because their allegations are based on what they saw, heard and recovered when they were claims adjusters...For example, the Relators (1) saw and heard Lecky King order adjusters to submit false claims; (2) were instructed by Lecky King to ‘hit the limits” when adjusting flood damage claims; (3) saw and recovered inconsistentengineering reports; and (4) supervised adjusters when the adjusters incorrectly attributed damage to flood rather than wind.

The knowledge the Relators obtained while working for State Farm and E.A. Renfroe is direct and independent...

State Farm...argues that the documents sought by the Relators are irrelevant because only documents disclosed to the government prior to the filing of the initial complaint are relevant to the original source inquiry.
State Farm’s legal position -- that the “original source” material is forever frozen at the time of the filing of the initial complaint – is inconsistent with Supreme Court precedent...It is undisputed that the Relators disclosed the False Claim Documents, including the data dump documents, before filing the amended complaint.

But for the unusual circumstances of this case, the Relators and their counsel would have access to all documents that were disclosed to the government.

Relators' counsel next point points out the obvious:

As State Farm has raised the issue of whether the Relators are original sources, State Farm cannot legitimately contend that the Relators and their counsel should not be able to use all documents disclosed to the government to respond to the dispositive motions. (emphasis mine)

What does the "good neighbor" think its conduct does other than show a corporate-wide commitment to delay - a self-slabbing of the integrity (or lack of same) in handling legal matters and settling policy claims - and just how do they reconcile their reliance on Senter's order to in their opposition to the Relators motion with conduct contrary to his clearly stated intent to decide the merits of these motions expeditiously?

Do they really expect anyone to believe a company that would file a motion contrary to common sense thinking and create a two-to-three week delay for a federal judge would think twice about delaying the processing and payment of claims?

In a text only order, Judge Walker set limits on next week's deposition of the Rigsby sisters - if the shock of being granted this measure of respect doesn't render the sisters speechless, each will answer question for a total of 2.5 hours when depositions are taken next week.

State Farm remains limited to the narrowly defined one-hour Walker previously ordered.  His text only Order granting in part and denying in part Renfroe's Motion to Compel depositions of Cori Rigsby and Kerri Rigsby gives Renfroe little more:

E.A. Renfroe & Company, Inc. shall be allowed one and one-half hours to depose each of the Rigsbys.

Questioning shall be as to areas not covered in prior depositions, although questioning as to areas previously covered shall be allowed if new information and/or documents have surfaced.

There's a lesson here that should not be lost. Who has something to hide, the Rigsby sisters or the duet of Renfroe-State Farm?

...the Rigsbys do not object to Renfroe deposing them on September 3, subject to the same limitations imposed on State Farm. Indeed, because this Court has already held that those deposition topics are timely for State Farm due to the circumstances, the Rigsbys presume that the same would be true for Renfroe.

Renfroe opposes any suggestion that the Relators should be given leave of court to conduct expedited discovery from any party at this stage of the litigation...which is clearly improper as shown in State Farm’s response.

What's to hide? What and who do the duet want to remain "undiscovered" before Judge Senter considers the dispositive motions that could keep evidence hidden forever?  Maybe Dana and Tammy - the friends [sic] of the Rigsby sisters who recently amazed us with the incredible memory and fluid delivery of  recall in depositions.

The Hardison deposition gives a straightforward account of fraud by State Farm even though she does not appear to realize it.

Q. How did that help — how did snapped pine trees above the ground, how did that assist you in making your determination whether the damage was done by wind or the damage was done by water?
A. Actually, the determination would be made by the surge levels and the wind velocity speeds that the office had.

No doubt, the Rigsby's new counsel - the literal brain trust of lawyers forming a legal team with IQ scores high enough to double its size - has ample need to discover more about depositions that follow the script of the dispositive motions filed by State Farm ad Renfroe.

Me, well I'm still trying to figure out how depositions taken in a case filed in another state had a basis for delving into matters that could only matter in Mississippi - that and what else Renfroe and State Farm are so desperate to hide.

An article by George Haggerty, Esq., from the Summer, NYSBA New York Real Property Law Journal.

This article starts with an opinionated introduction; but soon settles down to an excellent analysis of the applicable law on this timely topic of economic interest to both lawyer and non-lawyer title agents. See if you can figure out where you fit in.

News release: "U.S. lawyers are free to outsource legal work, including to lawyers or nonlawyers outside the country, if they adhere to ethics rules requiring competence, supervision, protection of confidential information, reasonable fees and not assisting unauthorized practice of law.

Those are the conclusions of the American Bar Association Standing Committee on Ethics and Professional Responsibility, which describes outsourcing as a salutary trend in a global economy. Many lawyers do outsource work, using lawyers or nonlawyers as independent contractors, hiring them directly or through intermediaries and on temporary or ongoing bases, says the committee.

Outsourcing can reduce client costs and enable small firms to provide labor intensive services such as large, discovery intense litigation, even though the firms might not maintain sufficient ongoing staff to handle the work, according to a new ethics opinion issued today. Ethics Opinion 08-451 details ethics obligations of lawyers and firms that do elect to outsource legal work.

State Farm filed a Response and Memorandum Wednesday singing the verse about the stolen [sic] documents and broken [sic] seal a little bit louder and a little bit worse. in opposition to the Rigsbys motion to propound expedited document requests.  Needless to say, they weren't singing to a choir here - not with that songbook; not with all of the contradicting information readily available to those willing to search.

(1) courts have held that employees with a good faith reason to believe their employer is engaged in unlawful conduct “[have] a legitimate interest in preserving evidence of [their employer’s] unlawful employment practices.

(2) the court also dealt with the issue of whether a former employee could be compelled to return materials taken from the employer that might demonstrate fraud. The court responded in the negative, finding less onerous ways of preventing this information from being used...

(3)...it is paramount to recognize that the duties of confidentiality and loyalty are qualified and must acquiesce to matters of public interest irrespective of whether those duties flow from an express confidentiality agreement or a common law fiduciary duty.

(4)...a claim for conversion cannot be found where the owner has not been deprived of title or right to use the property. The gravamen of the tort of conversion is the deprivation of the possession or use of one’s property... possession of copies of documents...does not legally rise to an interference with the owner’s property sufficient to constitute conversion.

(5) Even if the confidential documents constitute “property” of a type subject to conversion, holding the Relators responsible for engaging in conduct for the purposes of pursuing an FCA claim would undercut a statutorily protected right and further undermine the pivotal purpose of the FCA to uncover false and fraudulent claims on the United States.

(6) ..the Congressional intent in creating the 1986 FCA amendment for whistleblower protection is plain—to encourage the detection and exposure of potential frauds against the United States Treasury.  Thus, private agreements, whether entered into as a condition of employment, during the course of employment, or in settlement of claims outside of the FCA framework, that would frustrate this public interest and Congressional objective are generally unenforceable.

(7)...the [Congressional] Committee explicitly stated that "[b]y providing for sealed complaints, the Committee does not intend to affect defendants' rights in any way." Id. For these reasons, protecting the rights of defendants is not an appropriate consideration when evaluating the appropriate sanction for a violation of the seal provision.

(8) Nothing in the Act requires a qui tam relator to make supplemental disclosures to the government. However, Rule 26 does require supplemental disclosures, and, even in those cases where the Department of Justice has not intervened, it is probably wise to continue to supply the Department of Justice with supplemental information which might impact its decision regarding intervention.

(9) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government [General] Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.

(10) By picking a case with no dispute over the preliminary issue of whether a public disclosure occurred, the Supreme Court had no opportunity to clear up any of ..[the]...confusion [from Appeals decided by the various district courts]. The Rockwell opinion actually ended up adding to the confusion. It held emphatically that the “allegations or transactions” that define a public disclosure are not the same as the “allegations” in the complaint for which the Relator must be the original source..

(11) Court’s ruling...[in Rockwell was]...very fact-specific...[but while it]...provided the first decision on the public disclosure jurisdictional bar, it also left critical issues of statutory interpretation for later cases. Issues avoided include: [1] sufficiency of public disclosure to trigger the jurisdictional bar; [2] quantum of direct and independent knowledge necessary to be an original source...

Judge Senter's scheduling Order provided for discovery specific to the dispositive motions filed in the case.  I have no idea if the Notice of Intervening Supplemental Authority also filed today will be considered an additional dispositive motion or decided separately.

If counsel represents to the Court that it will be necessary to take discovery in order to prepare responses, rebuttals, or supporting memoranda, I will require that the discovery requests be specific and that they be directly relevant to the issues framed by these motions.

The eleven motions he identified fall under these three categories - one of each category linked below, noting there was only one version of the Motion for Summary Judgment listed in his order.

• Motion to Dismiss for Lack of Jurisdiction
• Motion to Dismiss for Failure to State a Claim
• Motion for Summary Judgment on Relators’ Claim for Retaliatory Discharge

The catch-all I posted earlier included State Farm’s Response to the Rigsbys motion requesting an extension of time to respond to the dispositive motions.  This document claimed the reasons set forth in the Response and Memorandum of this post supported the State Farm position that no discovery was necessary for the Rigsbys to respond to the dispositive motions.

Although expanded in the Memorandum, the reasons set forth appear in both documents.  Those listed below are from the Response with any related reference from my afternoon/evening of research - once again noting that I'm a reader and not a lawyer.

(1) Not Directly Relevant and Necessary. The “data dump” documents are not even tangentially related, let alone “directly relevant” to the issue of whether the Rigsbys are “original sources” as the term is used in the qui tam provision of the False Claims Act. This is so because the FCA expressly requires a relator to disclose all original source material to the government “before filing an action under this section.” Here, the Rigsbys did not even obtain the “data dump” documents until after this lawsuit was filed. Thus, they are not relevant to determining whether the Rigsbys are original sources.  Re: # 8

(2) Improper Attempt to Launder Stolen Property. The Rigsbys are seeking to improperly use discovery to circumvent this Court’s ruling that “[the stolen documents are not going to come into evidence in this case (or in any other case under my control as judge] unless the party sponsoring the document can show
that the document was acquired through the ordinary channels of discovery.”  Re: # 1,2,4,5

(3) An Attempt to Misuse This Action to Evade the Renfroe Injunction. The Rigsbys are seeking to use discovery in this Action as a vehicle to circumvent Judge Acker’s injunction in Renfroe. Re: # 1,2,4,5

(4) Flawed in Construction. Even if the Rigsbys’ proposed discovery was “specific and . . . directly relevant to the issues framed by these motions[,] and not an impermissible attempt to launder stolen property, it would still be subject to objection for at least two reasons: (1) it seeks the production of materials – in part – that State Farm cannot currently identify; and (2) it seeks the production of some materials that the Rigsbys may never have reviewed.
(5) Further Exposes the Rigsbys’ False Testimony. The Rigsbys’ use of Exhibit A to their proposed discovery further exposes the falsity of prior testimony regarding the “data dump.”

State Farm's claim at four (4) tests the limits of believability given the recognized expertise of their former qui tam attorney, Tony Dewitt.  Although State Farm contended otherwise, at some point in the disqualification process, Dewitt claimed the need to clarify the testimony the Rigsby sisters had given in depositions and pointed out there had been no opportunity for that to take place.

Ignoring a differing view of reality is not uncommon for State Farm.  For example, their defense relies heavily on Judge Acker's contention the documents were stolen [sic] when even my limited research suggests otherwise. With that case in mediation, the Scruggs appeal soon to be considered, and the likelihood Judge Senter will make an exhaustive review as he's done in the past, over-reliance on Judge Acker's decisions may be a more apt description.  I continue to be amazed he continued Renfroe v Rigsby once he was aware of the qui tam claim.

State Farm paints with a broad brush.  Their view of discovery appears to overlook the Relators are acting without the Government's involvement and the related impact that has on discovery.  Likewise, their broad brush approach overlooks relevant evidence in plain sight on the docket - as well as the law established in the FCA defining public disclosure..The claim was sealed on April 26, 2006, but the government didn't request a six month extension of the 60 day period until July 5, 2006 (70 days) and the request was not granted until early December (December 6, 2006)

Consequently, I await with interest the response from the Rigsby sisters qui tam attorneys and wonder if they will point out what some consider to be the significant impact of the Rockwell decision -defendants fending off substantive discovery - or if they think it so obvious no mention is needed.

second verse same as the first, a little bit louder and a little bit worse

In Shows v State Farm, Magistrate Judge Linda Alexander issued an Order granting the pending Motions to Sever, incorporating the language requested in Renfroe's related unopposed motion, and authorized the transfer of these cases to Judges Walker and Senter.

The motions are unopposed by any party, subject to the understanding that E. A. Renfroe & Company, Inc., Gene Renfroe, or Jana Renfroe, shall not be named as defendants in the amended complaints filed by the Summers and Simpson, and that the amended complaints do not include a RICO conspiracy or civil conspiracy claim relating to their Hurricane Katrina insurance claims. The Court finds that the motions are well advised and should be granted.

Is the ease with which it appears these plaintiffs dropped claims against Refroe an indication of anything other than the nature of the claims? Something to think about - particularly if you're one of the Renfroes.

The leading candidate for snark-of-the-week thus far is State Farm's Response to the Rigsby's motion requesting an extension of time to prepare a response to various State Farm motions.

...no discovery is necessary “in order [for the Rigsbys] to prepare responses, rebuttals, or supporting memoranda,” to the pending dispositive motions.

The raw arrogance took my breath away as did the the reasons set for earlier in other documents that I'll cover in my next post.  Meanwhile, State Farm wasn't done with their "agreement" to a brief extension.

Given that State Farm’s dispositive motions have been pending for almost five months without a response and that the Rigsbys have known of their response deadlines since August 7, 2008, State Farm does not believe the Rigsbys’ request for an extension of time is consistent with this Court’s expressed intent “to reach the merits of all the pending motions as soon as it is practical to do so.”

Despite the above and while State Farm maintains its opposition to the Rigsbys’ proposed discovery, State Farm does not oppose a brief extension of the specific deadlines set forth in this Court’s August 7, 2008 Scheduling Order.

I'll ask the obvious question: WTF could they have done in those five months since they're not lawyers and had none? Delusional distortion, btw, is what I call filing a response to suggest such - particularly when State Farm knows these dispositive motions were filed as a part of their legal strategy to disqualify the Rigsbys attorneys.

Next up, McIntosh with a Order issued by Judge Senter formally dismissing Forensics Engineering as a defendant.  Last, but by no means least, is a Renfroe Reply opposing the Rigsbys response in opposition to the Renfroe motion to compel depositions.

Renfroe was prevented from resuming the Rigsbys’ depositions until now for the same reasons that State Farm Fire & Casualty Company was prohibited from doing so: Renfroe did not receive the first of the documents recovered from Cori Rigsby’s computer until August 2008.

The parties and the Rigsbys agreed at the prior depositions that Renfroe’s questioning of them was not concluded at the time of the recess of their November 19-20, 2007 depositions and that the depositions would be resumed by Renfroe at a later date and time. See Exhibit 3 attached hereto.

Maybe so; but, what is it that State Farm counsel did that Renfroe counsel didn't do?  Who had the job of making the court aware?  Someone got State Farm's name in the hat, so to speak.

It's simply intellectually dishonest, IMO, to claim the Rigsbys’ opposition completely fails to address any of the salient points raised in Renfroe’s emergency motion when clearly they did.  Failing to give someone the answer they want is not failing to address the points. It seems to me the salient point someone failed to address was filing the appropriate motion in a timely manner.

That's all I've caught for this catch-all update.  Post on the larger State Farm filing in the qui tam case coming next; but, not coming shortly as there's a lot to cover.

Before going any further, I want to explain how this motion relates to my remarks about the use of psychological defense mechanisms in the Reply filed by State Farm - the monster that hit Pacer last Friday.

What we're dealing with is a corporate bully - functioning like a man who beats his wife and says it's her fault for making him mad. Bullies have victims. I'll attempt to explain how that victim can be justice after this section of text from the motion showing the bully in action.

Clearly, State Farm did not enter Exhibit “C” or its other newly-submitted documents because they were necessary to its arguments in support of its original Motions to Compel. If these documents were truly relevant to State Farm’s Motions, they should have been attached as exhibits to the Motions themselves.

Moreover, State Farm makes only two references to the documents in its Second Reply Brief, one of which is a string “citation” to nearly 3,000 pages of documents for the broad and generalized proposition that Zach Scruggs had e-mail contact with certain media representatives.

The attachment of these documents, and their continued presence on the Court’s docket, thus prejudices the Scruggses, serves no permissible purpose, and constitutes an abuse of the Court’s resources and the electronic filing system.

I contend that in these Katrina cases, the immediate victim may have been Zach, Dick, one of the Rigsby sisters, or even disqualified counsel; however, the ultimate victim has been justice.

I hinted at such in a late afternoon comment referencing the "stolen" documents because of the protection provided under the Fair Claims Act. The corporate bully we're dealing with here knows the law and, therefore, knows the data dump documents weren't stolen and should not have been returned; but, knowing the law did not stop the bullying and just look at the impact and ill gotten advantage that resulted.

IMO, the risks is just as grave with the current promotion of the "seal was broken". Mayo-Mallette stands up to the bully in this motion. Let's hope justice stands as tall because the stakes are even higher - the Constitution and the right granted by the Fifth Amendment.

State Farm filed its Second Reply Brief on August 22, 2008. This Second Reply Brief contains arguments and exhibits that were not presented to the Court in either of State Farm’s Motions or its First “Reply” Brief...

In its Second Reply Brief, State Farm argues that the Scruggses have waived their Fifth Amendment objections to the questions asked at their depositions because of the production of documents mandated by the Court [Document 1272, at 7-10].

This argument was not briefed by State Farm in either of its Motions to Compel or in its First “Reply” Brief and, even if it was peripherally raised, it was not supported by any evidence. Courts in this Circuit do not consider arguments raised for the first time in a reply brief...

A legal strategy designed to deny citizens their Constitutional rights makes a mockery of our system of justice - and that's exactly what this motion is attempting to stop.

“Waiver of the privilege against self-incrimination may not be easily found … and will only be inferred in the most convincing and compelling circumstances.” (citations deleted)...

Furthermore, only voluntary testimony or disclosure of information amounts to an implied waiver.

Here, the Scruggses’ production of documents on which State Farm relies was not voluntary – they were
compelled to produce the documents by the Court over their Fifth Amendment objections.

Thus, the Scruggses’ involuntary document production does not amount to a waiver. Indeed, the involuntary nature of the Scruggses’ document production distinguishes this case from the one case that State Farm cites in support of its waiver theory.

Once the witness voluntarily opens the door, the court may open it completely and scrutinize every exposed matter.” (citations omitted). The Scruggses, on the other hand, did not “voluntarily open[] the door” to the matters contained in the documents they were ordered to produce.

The Court, at this point, can not make the Scruggses whole.

Richard F. Scruggs and D. Zachary Scruggs respectfully request this Court to immediately and permanently strike the arguments and exhibits that were raised for the first time in State Farm’s Second Reply Brief in support of its Motions to Compel. Alternatively, the Scruggses request an additional ten (10) days after this Court’s ruling on this Motion to Strike in which to respond to these arguments and exhibits. The Scruggses request such other relief as the Court deems appropriate.

What relief is possible? That I do not know but some needs to be offered.

However, the Scruggses won that round but Renfroe obviously felt and Yogi said, you wouldn't have won if we'd beaten you.

Judge Alexander handed Renfroe the defeat - and one might say they took the hint.

For a subpoena ad testificandum, those factors are: (1) the relevancy of the proposed testimony; (2) the need for the testimony; (3) the breadth of the subpoena; (4) availability of the testimony by other means; (5) burden on the subpoenaed party in obeying the subpoena. Collapsed down to its essence, the inquiry is one of balancing burden against benefit. (emphasis added)]

Now, do you see it? Smoke and mirrors - by reducing the document request, they created the impression of a more narrow inquiry than either intended to conduct. Had they not, it is highly likely the Scruggs would have prevailed on the basis the intended discovery was overly broad as restated in Judge Walker's order.

Plaintiffs’ assert the Defendants’ document requests are broad and “would undoubtedly cover many documents protected by attorney/client privilege and work product protections.”

However, Judge Walker couldn't see through the smoke to see the mirror.

...counsel for the Defendants reviewed the outstanding motions and have advised the Court as to those remaining discovery matters they consider essential to protect their clients’ interests. State Farm requests that the Court rule upon nine of its original 25 document requests from the Scruggses.

Consequently, Judge Senter's related opinion and order suggests the smoke blew his way as well.

The letter in question did no more than narrow and make more specific the documents b eing requested, abandoning sixteen of twenty-five original document requests.

State Farm and Renfroe- exhibiting a classic Freudian defense mechanism in documents filed to compel the Scruggses to answer all questions - now claim adandoning the documents did not limit their inquiring into those matters as evident in the recent Reply filed by State Farm.

A recurring theme running throughout the Scruggses’ papers is the erroneous assertion that the scope of their depositions was somehow limited by State Farm’s document requests. See, e.g., Doc. 1262 at 3-6, 27. They could not be more wrong. It is a fundamental fact of civil practice that depositions are often taken on all manner of subjects without a single document request listed in the deposition notice. (emphasis added)

Sop keeps telling me that one of these days, Judge Senter is going to catch on and go ballistic - if it this smoke and mirrors looks like deja vu all over again from the bench, this might do it.

..."I'm just very disappointed with the court," said Alex Alston, a highly respected Jackson attorney who can speak out because he has retired. "It looks like if the court wanted to do anything, it would err on the side of disclosure."

Diaz called the court's decision not to publish his opinion "unprecedented." But Supreme Court Justice Jess Dickinson, who is also from the Coast, told the Sun Herald on Friday that Diaz's dissent came in a case the court voted to send back to the trial court. No opinion was issued with the majority vote, he said, and there was nothing in the order to dissent to.

Dickinson said he wanted to respond to the Sun Herald's inquiry because "it's just absurd for him to think that any of us would prevent him from having the right to dissent in a case where the court's issued an opinion."

Diaz, Alston and former Supreme Court Justice Chuck McRae, who also is from the Coast, said justices have written dissenting opinions based only on court orders. Diaz voted against the majority's decision and wanted to explain why.

"I've done it in several cases and other justices have, too," McRae said. "I think it is unprecedented for a majority to quiet the vote of a justice because they don't like what he is saying on a dissent. A justice has a constitutional right to explain his vote. They are all equal and they can't muzzle a justice for that."

You can bet there will be more ruckus to come, too. Dickinson and Diaz are both from the Coast. Diaz is up for re-election in November.

...In a 2006 case, Dickinson wrote an opinion for the majority saying the statute of limitations on a wrongful death claim starts at the time of the injury, not the death.

Alston said that opinion reversed common sense and 150 years of case law.

Diaz had hoped the court would keep the Veterans Board case and overrule the 2006 decision. He wrote in his dissent: "The obvious result is that a wrongful death action may expire before the decedent does. This judicially created rule is without foundation and, frankly, absurd."

Dickinson said the court called a meeting to decide whether Diaz's dissent should be published, but Diaz failed to show and explain himself. Diaz said he sent his vote and explained his position in an e-mail.

Sop reported Diaz attended Gene Taylor's recent town hall meeting with Congressional leaders on the Coast.  I imagine we'll hear more from both Dickinson and Diaz between now and November.

Clarion Ledger carried the following story by Jerry Mitchell on the controversy:

The split between some members of the state Supreme Court now appears to be a chasm.

A majority of the high court voted this week to bar a dissent Justice Oliver Diaz Jr. wrote in an appeal on a wrongful death case, only to reverse themselves Thursday afternoon, allowing the opinion to be included in the file. Diaz said that vote didn't take place until after news media calls.

"I'm speechless," Diaz remarked. "Never before has a majority voted to prohibit a dissent in Mississippi."

Until this problem arose, relations had "never been spiteful," he said.

What happened is part of a larger problem, he said. "They have at least five votes to do anything they want to do. That has led to the attitude that they have the power to do anything they want to do. They wanted to test the theory of whether they were able to stifle dissent. I think they have gravely misunderstood the power they have."

Contacted for comment, Justice Jess Dickinson said, "My only comment would be that the concern here was that Justice Diaz was not dissenting to the order - and in fact agreed with it - but rather was expressing his opinion on issues, which were pending in the case, but which were not before the court at this time. The concern is if the case is later appealed, his opinion of those issues has already been published to the public. I don't think that's appropriate."

Diaz called Dickinson's characterization "completely and patently false and untrue."

The story continues:

Matt Steffey, professor at Mississippi College School of Law, called what happened "unusual, but not irregular."

Because the court is a sovereign body, "it's entitled to change its mind," Steffey said. "That's not to say I wouldn't be upset if I was Justice Diaz, but I think the court probably has the authority to set the policy."

He can see both sides of the issue, he said. "I think there's a real tension between a judge's right to dissenting opinions and a general prescription of issuing advisory opinions."

There has been a philosophic split in the court for some time regarding its handling of torts on appeal. Diaz and sometimes Graves often find themselves alone in dissents.

On Friday, Randolph said he and other justices believed because the order rejecting the interlocutory appeal included no opinion, a dissent did not belong.

"I've been on the court four and a half years, and I've never had anyone request to attach a statement to the lower court," he said. "I thought it would be inappropriate to include any statement and to do anything other than send it back to the trial court."

Because a trial has not taken place, justices lacked enough evidence on which to base a decision, he said. "I felt with some of the issues that it would be premature to rule on those issues because the record was not complete."

In fact, Diaz had a chance to meet with all the other justices on the matter but did not show up, Randolph said. "Nobody's trying to quell anybody's rights to exercise their constitutional right to dissent, to express their opinion in the case."

Diaz responded that he and two other justices did not show up Tuesday morning for the emergency meeting because they had only 15 minutes' notice. "Within an hour, I voted by e-mail and explained my vote as to why I thought they were wrong," he said. "They ignored my e-mail and my vote."

Maybe one of our lawyer-readers can explain. There are bound to be rules about who is invited, how much time is allowed others, and so forth - and how the one-hour provided under Walker's order translates to such an open-ended invitations.

Other questions: Both notices state the depositions are "for all purposes" but don't the rules Judge Senter set for qui tam discovery make related questions off limits? Another, if the sisters can not be witnesses in the McIntosh case, what use is their testimony?

State Farm's notice, actually amended notice one per sister, was on the docket today. The text follows below with the Renfroe notice thereafter - emphasis added to both pointing our text related to these comments.

PLEASE TAKE NOTICE that on Wednesday, September 3rd, 2008, at 9:00 a.m., at the office of Bryan, Nelson, Schroeder, Castigliola & Banahan, 1103 Jackson Avenue, Pascagoula, Mississippi, the Defendant, STATE FARM FIRE & CASUALTY COMPANY, in the above entitled action will take the deposition of the CORI RIGSBY as a witness for all purposes, upon oral examination pursuant to Rule 30(b)(1) and (4) Federal Rules of Civil Procedure, before a Court Reporter or some other Notary Public, who is a disinterested and unrelated officer authorized by law to administer oaths and also before a certified videographer. The Deposition will continue from day to day until completed. You are invited to attend and cross examine. (emphasis added)

Renfroe obviously presumed their emergency motion was a slam dunk and filed their invites with their motion - check out the bold text (emphasis added). Be sure to pull up the notice linked here and take a look at the invitation list!

PLEASE TAKE NOTICE that on Wednesday, September 3, 2008, at 1:00 p.m., or immediately following the deposition of Cori Rigsby and of Kerri Rigsby by the defendant State Farm Fire and Casualty Company, at the offices of Bryan, Nelson, Schroeder, Castigliola & Banahan, 1103 Jackson Avenue, Pascagoula, Mississippi, the separate defendant, E. A. RENFROE & COMPANY, INC., in the above entitled action will take the deposition of KERRI RIGSBY, as a witness for all purposes, upon oral examination pursuant to Rule 30(b)(1) and (4) of the Federal Rules of Civil Procedure, before a Court Reporter or some other Notary Public, who is a disinterested and unrelated officer authorized by law to administer oaths, and also before a certified videographer. The deposition is a continuation of the previous deposition of Kerri Rigsby begun on November 20, 2007, in which Renfroe conducted questioning on record for approximately 2 hours and 9 minutes, and will continue from day to day until completed. You are invited to attend and take part in the examination, as you may deem fit and proper.

Claimsguy commented the other day that anything goes as far as questions as long as the question could lead to discoverable evidence; but surely there is some limit - particularly since the issue before the court is the conduct of State Farm, Renfroe, et al in handling the McIntosh claim.

Surprising event # 1 came from the Mississippi Supreme Court. The MSC granted the Interlocutory Appeal filed by Dick Scruggs as well as the Motion for Reconsideration of the Interlocutory Appeal filed by the other former member firms of SKG - surprising enough to generate Rossmiller's mildest post yet about a Scruggs related event that alone was a surprising and welcome event.

News editor Patsy Brumfield had the story for the Daily Journal and Alyssa Schnugg followed in the Oxford Eagle story reported on the blog folo.

The Mississippi Supreme Court has granted Richard “Dickie” Scruggs and former Scruggs Katrina Group attorneys a hearing to decide whether a lawsuit involving Hurricane Katrina litigation should go to arbitration.

In April, Circuit Court Judge William Coleman ruled the law firm of Jones, Funderburg, Sessums, Peterson and Lee is entitled to fees and possibly punitive damages arising from their case against the Scruggs Katrina Group for $26.5 million in legal fees from Hurricane Katrina-related litigation. Coleman ruled in favor of the Jones firm because the lawsuit over legal fees led to the attempt by members of the Scruggs Law Firm to bribe Circuit Court Judge Henry Lackey — the original judge presiding over the lawsuit.

MSC's website provided little information and no clues about what will be considered - clues come instead from a folo reader commenting on the Eagle story.

I really doubt they will disagree with the Court’s rulings on sanctions against Scruggs, but I could be wrong. The part that has always interested me is whether the S.Ct. will set a precedent that joint venturers who didn’t bribe anyone can be sanctioned for bribery.

I've included the announcements from the MSC website at the end of the post in the interest of moving on to the more recent Surprising Event #2 - Scruggs reached a settlement with Jones. Alyssa Schnugg has that story - linked here in pdf as the Eagle flies before the ink can dry and links disappear overnight.

The lawsuit against former trial attorney Richard “Dickie” Scruggs — that led to his being incarcerated — has been settled, Oxford attorney Grady Tollison said this morning.

“We settled Thursday morning,” Tollison said.

On behalf of Jackson law firm, Jones, Funderburg, Sessums, Peterson & Lee, Tollison filed a lawsuit in March 2007 against Scruggs and other former members of the now defunct Scruggs Katrina Group. Jackson attorney Johnny Jones claimed his firm was pushed out of the Scruggs Katrina Group and only offered a fraction of what was owned to them for the firm’s work on several Hurricane Katrina-related cases...

Also listed in the suit are the Barrett Law Office, Nutt & McAlister and Lovelace law firms — which were all part of the SKG when it was formed.

Tollison said his client has also settled with the Nutt & McAlister Law Firm. He said he expects to go to trial against the Barrett and Lovelace firms.

“We’re attempted to settled with them,” Tollison said. “But my feeling is, we’re headed for trial.”

Not for a while, I would think as the MSC orders included a Stay. Frankly, I wonder what settlement would be appropriate with the Lovelace firm. If you recall, there is correspondence from Lovelace that offers support to Jones in the dispute.

Surprising event #3 may not be worth a mention but it caught my eye as I was reading about the MDI mediation program after Judge Senter's ruling in Boyd v State Farm.

As it turns out, it was not worth mentioning - a case of mistaken identity on my part - and references to the non-event have been deleted and my apology added.

Nonetheless, there are relationships in the litigation that are too close for comfort - and not all of them have been subjected to the same examination as others.  I suspect that day will come when there's a surprise #3 worth reporting and we'll have it when it does.

Here are the MSC notices with emphasis added:

Lafayette Circuit Court; LC Case #: L07-135; Ruling Date: 02/26/2008; Ruling Judge: William Coleman; Disposition: Petition for Interlocutory Appeal filed by petitioners is granted. All proceedings in cause no. LO7-135,Lafayette County Circuit Court, are stayed pending this Court's decision in this appeal. Easley, J., not participating. Order entered.

Lafayette Circuit Court; LC Case #: L07-135; Ruling Date: 04/16/2008; Ruling Judge: William Coleman; Disposition: Motion for Reconsideration of Order Denying Petition for Interlocutory Appeal and for Stay of Proceedings filed by Petitioners is granted. The Petition for Interlocutory Appeal and for Stay of Proceedings filed by Petitioners is granted. All proceedings in cause no. L07-135, Lafayette County Circuit Court, are stayed pending this Court's decision in this appeal. Easley, J., not participating. Order entered.

The court denied his motion, saying, "Minor has failed to establish by clear and convincing evidence that he is not likely to pose a danger to the safety of the community if released."

Minor was imprisoned before his 2007 conviction because he violated the terms of pre-trial release when he drank alcohol to excess. U.S. District Judge Henry T. Wingate, who presided over the trial, found Minor a potential danger to the community.

Minor, ordered to complete an alcohol treatment program, said he has been sober since April 2006.

The Sun Herald's story provides the familiar background in the brief story posted now with promises of more to follow.  I'm going to find and post the full decision. I'll be back shortly .

UPDATE:

I'll keep looking but I've begun to believe it may be a docket note that I'm looking for and not a document. As I read around the blogosphere looking for more information, I noted comments that showed a shocking ignorance about the disease of alcoholism.

If the decision to deny his request for release during appeal considered his conduct without considering his illness, as appears to be the case, I suspect we'll hear a lot more about this decision.

I'll continue to search and update as more information becomes available.

"Men, this stuff that some sources sling around...is a crock of bullshit. The General paused and looked over the crowd. "You are not all going to die," he said slowly. "Only two percent of you right here today would die in a major battle...

A man must be alert at all times if he expects to stay alive. If you're not alert, sometime, a German son-of-an-asshole-bitch is going to sneak up behind you and beat you to death with a sockful of shit!"

Patton's grim expression did not change. "There are four hundred neatly marked graves somewhere in Sicily", he roared into the microphone, "All because one man went to sleep on the job". He paused and the men grew silent. "But they are German graves, because we caught the bastard asleep before they did".

As you'll see, Senter's opinion/order was a victory for the public and a defeat for none of the parties involved - and no one should suggest otherwise. Read it for yourself - if not for the information, for pleasure of reading a textbook-worthy opinion.

At some point, this action has to be resolved on its merits, and the enormous sideshow that has developed around the identity of Relators’ counsel and the wrongful taking of these documents has to stop. By previous order, I have set a briefing schedule for the dispositive motions now pending, and I am sure there are other motions yet to come. I would like to reach the merits of these motions and indeed the merits of this action as soon as possible. The parties and the public deserve no less.

Before looking at several key passages, I offer this refresher on the preceding motions reported on Slabbed for those who feel the need: Maison Heidelberg, local qui tam counsel for the Rigsby sisters, filed a motion for leave to contact disqualified counsel; State Farm sent in buzzards with a band saw-motion in opposition; and Heidelberg filed a response that IMO showed a firm grasp of Senter's previous opinions.

I can understand why new counsel is seeking the Court’s approval for the actions they are considering. Conferring with disqualified counsel carries a substantial risk of engendering additional litigation related solely to that interaction and thereby distracting both the parties and the Court from the merits of this case. But this motion must be denied because it does not present a justiciable controversy. The motion calls on the Court for an advisory opinion, a ruling on matters that have not yet occurred and may never occur...

The Court is neither inclined nor empowered to advise counsel whether and in what circumstances conferences with other attorneys may be appropriate or whether and in what circumstances documents should be obtained and reviewed. An opinion concerning these matters would amount to an advisory opinion. The Relators’ new attorneys need do no more than read the file in this case and in McIntosh...to see the litigation history relevant to the decisions they are contemplating

State Farm suggests that it would be appropriate for the Court to enter an order requiring new counsel to limit the documents they may acquire so that no documents (in electronic form or in any other form) covered by Judge Acker’s injunction come into the possession of the Relators’ new attorneys. State Farm asserts that all of the copies of the documents covered by this injunction have not been returned to counsel for Renfroe in accordance with the terms of the injunction. State Farm also suggests that it would be appropriate to require the Relators’ new attorneys to file affidavits similar to those I required of Provost Umphrey, LLP, in other Katrina litigation.

None of this seems appropriate to me. There is no showing in this record that the Relators’ new attorneys are acting in violation of this Court’s or of Judge Acker’s previous orders, and there is no showing State Farm might suffer unfair prejudice from any of the actions Relators’ new counsel propose to undertake.

I am going to decline the invitation of the Realtors to pre-approve any of their proposed trial preparation strategy, and I am going to decline the invitation of State Farm to set boundaries that are impossible to effectively monitor and enforce...

Accordingly, the Relators’ motion [204] for leave to take possession of Relators’ files and for leave to confer with disqualified counsel is hereby DENIED on the grounds that it seeks an advisory opinion. Counsel are free to prepare this case as they see fit, and the Court will take up, in due course, any justiciable controversy that may arise as this case proceeds to a resolution on its merits.

Like a Patton before Normandy addressing his troops:

One of the bravest men that I ever saw was a fellow on top of a telegraph pole in the midst of a furious fire fight in Tunisia. I stopped and asked what the hell he was doing up there at a time like that. He answered, "Fixing the wire, Sir".

I asked, "Isn't that a little unhealthy right about now?" He answered, "Yes Sir, but the Goddamned wire has to be fixed". I asked, "Don't those planes strafing the road bother you? And he answered, "No, Sir, but you sure as hell do!"

Judge Senter clearly intends to similarly bother people - expecting a similar result.

Now, there was a real man. A real soldier. There was a man who devoted all he had to his duty, no matter how seemingly insignificant his duty might appear at the time, no matter how great the odds.

And you should have seen those trucks on the road to Tunisia. Those drivers were magnificent. All day and all night they rolled over those son-of-a-bitching roads, never stopping, never faltering from their course, with shells bursting all around them all of the time.

All of the links in the chain pulled together and the chain became unbreakable."

I can think of nothing more worthy of our collective desire than for Katrina litigation to be an unbreakable chain of justice and, applauding Judge Senter, I close as did General Patton:

Ahh, I feel much better! See Ya!

Nowdy

Maybe so; but, I rather suspect the Rigsby sisters called in the troops after State Farm filed an emergency motion to compel their Alabama attorneys to schedule depositions in the Mississippi McIntosh case.

The only other action on McIntosh today was a text only order issued by Judge Walker denying the Scruggses motion for leave to file excess pages in response to the questions posed in Oxford when their depositions were taken recently.

No written order will follow according to the docket entry; so, we're left to imagine what Judge Walker was thinking. I'll go first with my guess - he's waiting for Ms. Nicholson to file the Order mentioned in her letter to the Court. Me, too! The woman flat has a way with words.

The Plaintiffs intend to file a Motion for a Protective Order that (1) opposes the re-setting of the depositions; (2) asks the court to explicitly set out and limit the scope of the depositions, if they are allowed, preventing further abuses by State Farm; and (3) asks the court to limit the amount of time State Farm is allowed to depose the Scruggses. (emphasis added)

If and when State Farm attorneys take any depositions from the Rigsby sisters, I suspect it will be a very civil affair, far unlike Oxford.

If you read the biographies linked when Gilbert Randolph filed to enter the Rigsbys' qui tam case, you won't be concerned about the odds - these three attorneys for the sisters versus the even dozen listed for State Farm. It actually sounds like a pretty even match if you go by IQ and not body count and there were some might smart folks on the State Farm list; but check those biographies if you haven't.

Common perception seems to be Hood was grandstanding in 2005 and his recent settlement announcement was just his taking another bow.

Evidence suggests otherwise, however, and makes the case that Hood was standing on the law when he filed suit; but, take a look - first at the allegations Hood made in the lawsuit as summarized by the Insurance Information Institute.

Adam Scales, Washington and Lee law professor and U-Conn visiting professorformer chair of the AALS section on insurance (American Association of Law Schools), provided commentary: How Will Homeowners Insurance Litigation After Hurricane Katrina Play Out?The Key Dynamics, the Mississippi Lawsuit, and the Courts' Likely Views.

Over a century ago, an insurance executive observed that, "the insurer proposes, but the court disposes." As the nation reels from Hurricane Katrina and its aftermath, insurance companies and policyholders now living in shelters would do well to reflect on this fundamental characteristic of insurance law...

On its face, the Mississippi complaint is rather broad. In response to it, insurers suggest the suit is nothing less than an attempt to rewrite contracts after the fact. They note the irony that Mississippi regulators earlier approved the very agreements now claimed to be "unconscionable."

Although it is unlikely that all of its claims will be upheld, Mississippi has a strong chance to blunt the force of the flood exclusion. For at the core of this dispute is the legal doctrine of "proximate cause."

Proximate cause has long been the bane of law students required to learn it, and lawyers and judges required to apply it. Needless to say, it is an object of singular delight to law professors.

Proximate cause describes a relationship between events sufficient to trigger a legal consequence. So suppose a car accident leads to a rather unusual injury. The driver (and his insurer) may be liable if a court finds the injury to have been "proximately caused" by the driver's negligence. Or suppose the "proximate cause" of a loss is something firmly excluded from insurance coverage; then the insurer is not liable...

Hoods lawsuit was filed September 15, 2005 and Scales commentary published four days later on the 19th. Almost a year later, August 2006, a New York times column, Katrina: Small Clause, Big Problem, suggests the proximate cause of problems Hood experienced with his lawsuit was the now all too familiar ACC clause.

Since at least the mid-1980’s, insurers have been putting into their home insurance policies “anti-concurrent causation’’ clauses that effectively eliminate coverage that insurers promise to provide when selling their policies. But most people skip over the legalistic language — if they read their policies at all. And until Katrina, there had never been such an outpouring of challenges.

“There’s no question that the anti-concurrent clause is bad for policyholders,’’ said Adam F. Scales, an associate professor who teaches insurance law at the Washington and Lee University School of Law, in Lexington, Va. “It’s not fair because it defeats policyholders’ reasonable expectations.’’

Insurers counter that they need the clause to protect themselves from being drawn into paying for floods, earthquakes or mudslides and other widespread calamities that are beyond their scope and that they specifically refuse to cover...

Robert P. Hartwig, the chief economist at the Insurance Information Institute, a trade group in New York, said the insurers priced their policies in the expectation that they would not be paying for damage in combination with flooding. Otherwise, Mr. Hartwig said, premiums would be much higher and some insurers might decide not to offer coverage on homes at all in certain areas...

The insurers say they spell out their terms of coverage in their policies. But even lawyers representing insurance companies say customers do not always understand the limits of their coverage.

“When you look at anti-causation language, it just doesn’t look that important,’’ said Randy J. Maniloff, a lawyer at White & Williams in Philadelphia who represents commercial insurance companies but is following insurance developments along the Gulf Coast. “They don’t appear to be words of substance. But they’re actually enormously important.’’

The insurers point out that in most states, insurance regulators approve the language in their policies. (emphasis mine)

That certainly was the case in Mississippi - and one of the reason's then Commissioner George Dale's close relationship with the industry became a major issue in his campaign for re-election and subsequent loss in the primary.

“The regulators look a lot more carefully at rates than they do at policy terms,’’ said Gary S. Thompson, a lawyer at Reed Smith in Washington who represents commercial policyholders but also follows home insurance issues. “It’s really the courts that cause insurance companies to go back and re-examine their coverage terms.’’

Obviously, Mr. Thompson was unfamiliar with the 5th Circuit! We haven't seen companies re-examining their coverage terms - or their preference for the regulatory system quoted in my earlier post on Hood and the record.

While Hood's ethics have been consistently questioned since he filed suit, what little mention I found of the the ethics of the ACC came from the highly respected Sam Friedman:

Litigation and policy debates among state and federal lawmakers have exploded over the controversial anti-concurrent-causation clauses in homeowners policies--which deny coverage for most, if not all windstorm losses when excluded flood-related damage is also involved.

Consumer advocates call the clause confusing at best, and at worst a “trap door” to deny insureds their legitimate coverage.

• Is the ACC clause ethical on its face?

• Has it been ethically-implemented by the industry in the wake of Hurricane Katrina?

• Is there anything that can be done to more fairly exclude flood damages without leaving policyholders high and dry after a windstorm catastrophe?

Have those questions been answered? I think not. Neither has the issue of regulatory change that changes law and goes undetected until a state's chief law enforcement officer attempts to enforce the law.

UPDATE: Here's a document that supports claims that Hood has been doing his job as the state's chief law enforcement officer.

Before the storm, there wasn't a prettier stretch of highway in America. I'm convinced of that. With the Gulf on one side and one beautiful home after another on the other, it was a sight to behold.

The Gulf side is as beautiful as ever; but, not so the other where all that remains of many of those beautiful homes is a drive way and an otherwise vacant, weed-filled lot.

By the time we headed into the Bay-Waveland area, I'd seen more slabs that I could count and was feeling like an empty lot myself, the experience was so draining.

What made it so draining and me so sad was how much those vacant lots looked like those I saw right after the storm almost three years ago.

If this slab was the place I once called home, I can only imagine that I would have been overwhelmingly sad; leading me to believe that the empty lots on the Coast leave others empty and sad – depression is the clinical term.

According to cognitive-behavioral psychologists, depression in humans may be similar to learned helplessness in other animals, who remain in unpleasant situations over which they'd initially had no control.

Once we began to eat, meet, and greet, it wasn’t possible to be sad; and I bounced back and took these pictures the next day. However, others on the Coast are having more than the just a brief depressing experience like my encounter with the empty lots. WLOX, Biloxi television, ran a related story the day before I arrived.

The bricks and mortar cost of the hurricane is obvious. But the emotional turbulence kicked up by Katrina is far more difficult to measure.

Jeff Bennett is director of the Gulf Coast Mental Health Center.

"I like to call it malignant malaise. Dealing with insurance companies, crooked contractors, still trying to get back into your house, insurance rates going up. People are having problems with that," said Bennett.

He says we've probably "hit the peak" in the number of Katrina related mental health problems. But those issues are likely to surface for years to come.

"People were displaced and our support systems disappeared. Our neighbors who used to be there for years and years, in some cases are gone. And people have trouble with that. They look next door and their buddy is not their anymore."

This past year we've seen a 30 percent increase in the number of calls we're receiving from the community related to depression and suicide," said Randy Kirksey, who has been a therapist at Memorial Behavioral Health for 17 years.

He says nearly three years after the hurricane, storm related stresses and anxiety continue to mount, often becoming unbearable for many. "Although they have started rebuilding their homes or trying to rebuild their homes, or they may be still looking for a place to live, cause we still have a lot of families displaced, the stress level is high," says Kirksey

The Times Picayune ran a similar story a few days later.

Social worker J. Chris Barrilleaux says he sees fewer cases of post-traumatic stress disorder, and more clients suffering from depression as they continue to be bogged down with insurance hassles, home repairs and other obstacles to the full restoration of their pre-hurricane lives.

"The inability to finalize, to put closure on an event, brings depression," Barrilleaux said.

Today, the Times reported the results of a recent Kaiser Foundation survey that revealed more about post-Katrina mental health concerns.

The survey of 1,294 New Orleans adults, conducted from March 5 to April 28, offers troubling signs regarding attitudes in the city, noting that reported stress levels are rising, perceived job opportunities are limited and more people, especially young adults, are considering relocating.

Nine in 10 of the respondents lived in the city when Katrina hit. Among those individuals, 41 percent said their everyday lives are still somewhat to very disrupted by Katrina, and 53 percent said their general level of stress has worsened.

Post-Katrina mental health can become a legal issue in a policyholder claim as part of the damage cited by a plaintiff, typically as a claim for mental anguish.

Mental Anguish is the mental suffering like fear, anxiety, depression, grief etc. faced by a person during an event, period, action or situation. A person can claim damages for mental anguish if it was logically connected to the incident.

In cases involving Katrina policyholder claims, it is not the anguish caused by the hurricane a court would recognize as damage - the insurance company didn't cause the storm. Instead, the proximate cause of the anguish would be the disputed claim such as the depression from insurance hassles quoted by the Times.

The rule of proximate cause also applies as an element in mental anguish. And it is accordingly held that a plaintiff in such action must not only show the mental anguish suffered by him was proximately caused by the defendant’s default but that such default was such that would bring suffering to a reasonable human being in the defendant’s situation.

I can't imagine a policyholder reaching the point of filing suit without some degree of depression. What concerns me more, however, are those who gave up - the learned helplessness of the settled but unsatisfied.

Learned helplessness theory is the view that clinical depression and related mental illness result from a perceived absence of control over the outcome of a situation.

Beck's Cognitive Theory of Depression explains how the mental anguish of depression develops in those policyholders that are paid less than expected for the coverage they purchased - an explanation known as Beck's Cognitive Triad.

Underlying these feelings is the belief that purchasing insurance is a protection when disaster strikes. Consequently, when the result of filing a claim is exposure and not protection, it is only normal to feel inadequate at some level - I must not have filled the form out correctly or I knew I should have explained it better .

However, if attempts to resolve what is initially perceived as a misunderstanding fail, it would be difficult not to feel a sense of defeat and personal failure. If no other source is available for what insurance was expected to provide, a loss of hope in the future - the belief it will never be better - is understandable.

Three years after Katrina, it's the rebuilding that we don't see that is contributing to what we can't see - the mental health of those whose tomorrows are like their yesterdays. Hope - slabbed.

I thought no more about this until several weeks back when I found myself trying to explain to an aghast American lawyer how and why it is that even a simple collection case of what is really a minimal amount of money could thrive for as long as two years – and that’s if you’re lucky. If you were really lucky, you’d be dealing with parties who’d rather settle than go to court. But then again, that means less income for you.

As one of my favorite book character likes to say, “Bags! Nothing is ever easy.”

If you thought I didn’t warn you about law school – just wait until you get out and start practicing. There are even more surprises in store for you outside Malcolm Hall. As far as my limited experience
goes, though, here are some things that might be good to remember…

Don’t sweat the small stuff. Nothing has irked me more than individuals who make such a big deal out of irrelevant details. Details are important, of course. But there are hierarchies and priorities there just as anywhere else. If it’s really not fatal to your case, don’t lose sleep over it. It’s really not worth it. And it’s really not worth beating yourself, a colleague, or a subordinate up over.

Be clear on your ethical standards. So lawyers are liars, they say. And I admit that much of legal advocacy involves stretching some truths as far as we can take it. It’s our job, after all, to make a good case. But a good case is made by good and thorough background work and research, and it’s those detailed loopholes in that unheard-of-case that took you hours to find that can help you. You look for precedents; you don’t create them.

All too often I’ve come across lawyers too free with using their creativity to – dare I say it – create previously non-existing pieces of evidence. When you ask them why, they’ll either laughingly tell you that it’s just a trick of the trade, how it’s part of being a lawyer, and how many cases they’ve actually won by making stuff up. Never mind that I could have thought of at least two legal arguments in our favor that would have been worth looking into.

Never mind that a justification to the tenor of “That’s the way it has always been” is a cop-out any which way you look at it. I could say that it’s treason to our faculty of reason, this propensity to toe the lines of legality and illegality, and the avoidance of a good logical argument, but then again who am I to complain? It’s not my case. It would be the opposing counsel’s problem to prove otherwise. Such decisions we make on our own though, in the privacy of our inner worlds. When the circumstances call them into question, they’d better be solid enough for you to stand on, whatever way you choose to play it.

Keep a healthy life inside and outside the legal community. Lawyer friends are essential. If only because any complaints you have would only come across as whining to everyone else. It’s no use trying to vent to non-lawyers, you’ll just get hit back with “Well, I have problems, too…,” or something of that sort. Most of them will probably think you’re being overly dramatic. Talk to fellows in the legal community and you’ll get the proper kind and amount of moral support you need. We all feel the difficulties of the profession keenly, most likely having gone through the same things ourselves.

Just as important, too, is to keep a healthy life outside of the legal circle. This is a challenge for most fulltime practitioners, considering the hours we keep. On the other hand there are others who simply love being a lawyer and whom you can’t fault for their passions. What cannot be denied is that there is a world teeming with life outside of the law, and we can choose to enrich ourselves from it if we really want to.

Some people think that being a lawyer confers an automatic dignity on a person. I wouldn’t give too much credence to that particular mindset. I’m a lawyer, and I still keep a healthy level of distrust about the other lawyers I deal with. I’ve known people (non-lawyers) who keep a healthy level of distrust about all the lawyers they’ve ever dealt with – including me. What glamour it does confer on a person is very breakable. Shatter that illusion and it would be very difficult to repair. It would be best not to open yourself up to such attacks to begin with. At the end of the day, you still have to decide just what kind you want to be.

The new rules take effect because the legislature offered no objection this past legislative session to the new rules proposed by the Ethics Commission.

Under the old rules which allowed political action committees to give money to one another, the original contributor of money could become hidden as there was no end in one committee giving money to others and back again.

The rules on gifts to law makers and state elected officials had permitted gifts up to $300.00 per calendar year. That figure has been changed to $100.00. Also, law makers and state elected officials had been required to report gifts only in the value of $50 or more. One of the new rules taking effect with the other rules requires lobbyists to report spending more than $10 on a state official or aide during each six-month period.

Of the $207,764 spent last year on legislators by lobbyists, records show that 24% of that went to season tickets to Oklahoma University and Oklahoma State University football games. More than 90 legislators received O.U. season football tickets. The season ticket costs $379, with the University paying $300 last year and the legislator paying the balance of $79.00. Now, O.U. will be allowed to pay only $100 of the cost of each ticket, and the legislator or elected state official will have to pay the $279 balance.

As citizens in Oklahoma, we want our elected officials to be impartial in their decisions and not influenced by hidden gifts. So this is good for our state and for all those who are affected the elected officials decisions.

Lobbyists spent more than $200,000 for legislators in the year 2007, mostly on meals, gifts and tickets. This was a 20% increase over the previous year, according to Ethics Commission records.

I suspected that Judge Acker was waiting on issuing his order on Scruggs's motion because he was going to have to do something reasonable but didn't really want to.  My guess was correct! 

The court voiced its incredulity and its concern over granting the said motion without caveat.  The court made clear that the motion will be granted only with the court's disclaimer of any belief that there will remain any right by Scruggs and/or by the Rigsbys to appeal and/or to recover from Renfroe the amount of the satisfied judgment in the event of a successful appeal by anybody.

But he was extremely impressed with Scruggs and counsel's brief filed with the Eleventh Circuit filed on June 19, 2008 quoted in the memo:

"A civil contempt order in final and appealable when 'a fine or penalty is imposed within a time certain that may not be avoided by some other form of compliance.'" [omit citations here]

Scruggs correctly anticipated the July 8, 2008 opinion of the 11th Circuit in Securities and Exchange v. Kirland [omitting citations here] in which the Court virtually repeated, as follows, what was said in Scruggs's brief:

An order that imposes a fine or penalty for contempt that must be obeyed within a certain period and may not be avoided by some other form of compliance is immediately appealable. (emphasis supplied)

What Scruggs proposes is in reality no more than a loan to Renfroe, contingent on the outcome of Scrugg's appeal...

This court should not relieve the Rigsbys of exposure to sanctions for not paying the $65,000 judgment if the Rigsbys can still appeal and if successful, get some or all of Scrugg's money back from Renfroe.  It this is what happens as a result of this court's granting of Scrugg's motion, this court expresses its regret in advance."

The rest of the memo/opinion is a curiosity and I believe I got the final judgment down where the clerk is ordered to write a check to Renfroe's attorneys with interest and the balance left over with interest written out to Scruggs's attorneys. And ultimately the motion is granted. But the court is perplexed.

The court cannot, of course, discern all of Scruggs's motives. Their motion may be a gallant and magnimous gesture or the fulfillment of an enforceable contract, or a self -interested ploy. Whatever it is, Scruggs cannot seriously be asking for this courts imprimatur on a conditional, non-final, illusory satisfaction of a judgment against four jointly obligated judgment debtors . . . while the other two remain vulnerable to execution and/or sanction for non-payment and who have not appealed or obtained a stay.

Scruggs's motion expressly seeks "satisfaction of the civil contempt sanctions" against all four entities against whom joint $65,000 judgment was entered. The Rigsbys understandably want whatever favorable consideration they can get from Scruggs and/or this court. The court does not want to in