Who wouldn’t in their place? With Judge Acker already mad as a hatter, it’s hard to find fault with the Scrugges for pointing out Judge Acker controls the documents copied by the Rigsby sisters – and that’s exactly what they do in this Reply in support of their opposition to Judge Walker’s order compelling them to turn over documents to State Farm.
Not that the Scruggses are unwilling, they remind the Court – just unwilling to do anything that puts them at risk of contempt in Judge Acker’s court.
…the Order of the Magistrate Judge appears to call for production of documents that may be subject to Judge Acker’s injunction. The Scruggses continue to object to any order that could put them in violation of Judge Acker’s December 8, 2006 preliminary injunction order. Judge Acker’s preliminary injunction specifically required the Scruggses to return the relevant documents to Defendant Renfroe and “not to further disclose” any documents “downloaded, copied took or transferred from the premises, files, record or systems of Renfroe or any of its clients, including, but not limited to State Farm Insurance Company…”
Judge Acker entered a protective order (October 10, 2007) describing the persons who may view the documents, requiring his consent for further copying of the documents, and providing that “[n]one of the Documents…may be used except in connection with this case…”. See Consent Order, attached hereto as Exhibit “F” (November 19, 2007). The Scruggses should not be placed in the untenable position of responding to a document request that they reasonably believe seeks documents that, if produced, could subject them to further contempt proceedings.
Rather than require the Scruggses to re-review and re-produce documents, State Farm should get the documents it wants from Renfroe, or State Farm should avail itself of the
procedure established by Judge Acker to obtain copies of the documents. This is not a procedure without precedence, as the Mississippi Department of Insurance has already been granted access to the documents upon application to Judge Acker.
The Scruggs again assert their Fifth Amendment right and say to do otherwise might result in their being held in contempt by Judge Acker.
State Farm’s arguments as to the Scruggses’ pending sentencing in the Northern District of Mississippi (i.e., that a guilty plea removes any further risk of self-incrimination) is legally incorrect, and ignores
the fact that the Scruggses’ Fifth Amendment rights remain intact through sentencing…
To be clear, the Scruggses would not oppose either of these methods of discovering the information. State Farm’s desire for the Scruggses to produce documents does not overcome the burden on the Scruggses of reproducing these documents or override their Fifth Amendment rights. The Scruggses’ assertion of their Fifth Amendment rights in response to State Farm’s subpoenas is based on a genuine concern about the use of the Scruggses’ production of responsive documents as a basis for increased criminal sanctions or additional criminal contempt prosecutions.
However, they recognize one very narrow point.
The only concrete basis articulated by State Farm in support of the discoverability and possible relevance of the documents it now seeks from the Scruggses is on this very narrow
point: these documents, State Farm argues, will lead to discovery of evidence “concerning chain of custody”. Response, at 8.
This tenuous claim does not outweigh the burden to the Scruggses arising from, among other things, the risk of self-incrimination and a burdensome review of documents that it has already produced and that are available from other parties.
At the very least, if the Court affirms any part of the Magistrate Judge’s Order, it should limit the scope of production, and of any depositions that may be taken of the producing witnesses, to the chain-of custody question only – the sole basis for which State Farm now argues that these non-parties should be forced to produce the requested documents.
…and, then add a reminder –
Aside from its chain-of-custody argument, State Farm states that it “wonder[s]” what documents are in the possession of Scruggses. Response, at 1. State Farm may not obtain documents from the Scruggses merely to satisfy its curiosity.
Surely, Judge Walker knows that neither State Farm nor the Renfroes have been without the originals of these documents – and, more importantly, that neither the Scruggses or the documents are relative to the McIntosh case.
h/t bellesouth for the documents : )