Dick and Zach oppose Renfroe's joinder and motion

Since “the blogging class” is cursed not only by work but a need for sleep, I’ve pulled text from the motion that discusses the points made in the opening summary. Bold text, other than headings, has been added for emphasis of selected points and related comment is added in closing.

I’ve made no secret of how distasteful I found the Oxford depositions. Questions like those Belle quoted in a comment to a Thursday post were very much on my mind as I read the Scruggses response incorporating some questions and glanced over those in the Appendices.

That’s when it struck me that what I was reading was not just distasteful but likely a classic example of Freudian Projection, the most primitive defense mechanism known other than denial.

The individual perceives in others the motive he denies having himself. Thus the cheat is sure that everyone else is dishonest.

Projection applied to this question, for example, Have you had an affair with Kerri Rigsby? would suggest someone involved gained access to information by establishing such a relationship. Perhaps, Tammy, the first to come to mind, had more than cottonwoods whispering in her ear.

The other question belle posted – You had a strategy to find an insider to steal documents, a strategy to use the legislature, a strategy to use the judicial officers of Mississippi, and a strategy to use the press in order to put State Farm into an extremely uncomfortable position and pay you money – read in the light of projection could indicate it was State Farm with a strategy to find an insider, use the legislature, judicial officers and the press to put Scruggs in an extremely uncomfortable position. In other words, not the Rigsby sisters as insiders but someone like Balducci.

The hour is late for such heavy thought; but, keep projection in mind as you read.

Dick and Zach’s opposition to Renfroe’s joinder motion is contained in the first 14 pages of the 107-page Response. Appendices “1” and “2” to this Response list all of the questions that Renfroe asked of the Scruggses during the Oxford deposition and are coded to indicate justifications for certain objections. A footnote on page six (6) explains the code.

Renfroe filed nothing with regard to the Scruggses’ depositions or objections until it had the opportunity to review not only State Farm’s Motions to Compel, but also the Scruggses’ Response.

Now, having waited almost a month after the depositions were completed, Renfroe files a Joinder or “In the Alternative, Motion to Compel,” simultaneously complaining that “Time is growing short.”

Renfroe, like State Farm, apparently contends that its counsel asked the perfect deposition questions for two days, as it seeks, like State Farm, to have the Scruggses answer each and every question to which the Scruggses objected over a two day period.

Also like State Farm, Renfroe deems it unnecessary to identify or discuss any specific deficiencies in those depositions by either good faith certificate or in the motion itself.

Likewise, Renfroe does not even pretend to justify or explain its explicit intrusions into the attorney-client relationship or the work product doctrine, as the Fifth Circuit has held that it must.

Finally, Renfroe demands reasonable fees and expenses, but makes no attempt to satisfy the requirements of Rule 37 that could, under limited circumstances, justify such an award.

For the reasons stated in the Scruggses Response to the Motions to Compel filed by State Farm, and for the additional reasons stated herein, Renfroe is entitled to no relief.

After this opening summary, the response discusses each issue,

Renfroe’s “Joinder” Is Improper.
Renfroe’ “Joinder” is improper because State Farm lacked standing to compel the Scruggses to respond to Renfroe’s questions and because Renfroe did not seek independent relief until after the Scruggses responded to State Farm’s Motions.

In a footnote, Renfroe weakly defends its failure to independently seek relief, pointing to a distinction without a substantive difference between the version of Rule 37 in place in 1997, and the current version…However, Rule 37 still specifically provides that only the party “seeking discovery” has the authority to seek to compel under the rule as it applies to depositions…

II. Renfroe’s Motion Must Be Denied For Failure to Comply With Rule 37.

Renfroe chose not to pursue the good faith effort. Instead, it decided to rely wholly upon State Farm’s Motion or, if it was required to file its own motion under Rule 37, to “satisfy” good faith requirements with a one-sentence reference to the phone call between counsel. This is insufficient under the rules, and Renfroe’s Motion should be denied in toto for this reason alone.
Specifically, the only attempt to “resolve the issues herein” (Renfroe’s passing reference to such an effort, at page 3 of its motion), was a phone call from Renfroe’s counsel in the early afternoon of August 18, 2008, hours before Renfroe filed its Joinder and Motion

The very first requirement for seeking relief under Rule 37 reads as follows: “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”

…Uniform Local Rule 37.1 requires that “[a] Good Faith Certificate [Official Form No. 5] shall be filed with all discovery motions, with a copy to the magistrate judge”and sets forth the requirements for the certification. No certification was attached to or referenced in the motion, and Renfroe did not fulfill the “good faith” obligation imposed by Federal Rule 37 and Uniform Local Rule 37.1 were not met.

III. Sanctions Should Not Be Imposed against the Scruggses

In sum, Renfroe is not entitled to the relief it seeks either as a “joining party” or a moving party seeking discovery under Rule 37. This Court should find that Renfroe’s Joinder and Motionis not well taken, and further find that, because of the circumstances under which it was filed, it was not substantially justified. Therefore, pursuant to Rule 37(a)(5)(B) and/or (C), Renfroe should be required to pay to the Scruggses their reasonable expenses incurred in opposing the motion, including attorney’s fees…

IV. Renfroe Is Not Entitled to the Relief It Seeks

Even if it were not procedurally defective, Renfroe’s Motion lacks merit. In fact, aside from the standing issue discussed above, Renfroe’s Motion is devoid of any substance and incorporates the same faulty arguments set forth by State Farm in their entirety. In response to Renfroe’s Motion, the Scruggses adopt and incorporate the arguments contained in their Response to State Farm’s Motions….

A. Scope of Questioning

No less than State Farm, Renfroe saw the Scruggses’ depositions as an opportunity to inquire not only into facts related (however peripherally) to this case, but to seek discovery into all aspects of the Scruggses’ law practice, their strategy and tactics for other cases, and their relationships with lawyers and clients unrelated to this matter.

These questions and many others like them clearly show that Renfroe’s purpose in questioning the Scruggses was to obtain discovery about other cases, especially those in which the Scruggses’ legal theories and mental impressions could aid its defense. Renfroe’s questions to the Scruggses exceeded the scope of discovery in this case, as well as the bounds of the deposition ordered by the Court.

B. Fifth Amendment

The Scruggses properly invoked their Fifth Amendment privileges in response to Renfroe’s suggestions. Renfroe has not established that it is “perfectly clear” that the Scruggses’ answers to its questions “cannot possibly have [a] tendency to incriminate” or to ““furnish a link in the chain of evidence” necessary for a prosecution…. To the contrary, Renfroe’s questions plainly raise the same issues that triggered the Scruggses’ assertions of privilege in response to State Farm’s questions, including direct accusations of criminal activity…

C. Attorney-Client Privilege and Work Product Doctrine.

Like State Farm before it, Renfroe has failed to offer any justification for its repeated intrusion upon the attorney-client privilege or the work product doctrine…These factors are especially relevant here, as Renfroe specifically questioned the Scruggses about the factual bases of separate claims brought on behalf of more than 75 of the Scruggses’ former clients

In addition to the procedural deficiencies in Renfroe’s Motion and its failure to undertake even the most basic efforts to resolve any part of this dispute in good faith, Renfroe’s Motion provides no substantive justification for its argument that the Court should pierce every privilege asserted by the Scruggses with respect to every question asked at their depositions. Because the Scruggses cannot be compelled to offer potentially incriminating testimony or to divulge privileged information, the Court should deny Renfroe’s Motion.

Both State Farm and Renfroe have requested this Court to compel responses to every single question asked at the Scruggses’ deposition. This request for relief is not well-taken. Neither Defendant has made any attempt to narrow down the range of questions to which it seeks answers, either in good-faith correspondence with counsel for the Scruggses or in their briefing to the Court. State Farm and Renfroe know that they may not compel the Scruggses’ response to questions that state, imply, or lay the foundation for accusations of criminal activity.

They also know that they are not entitled to have the Scruggses answer questions that seek privileged information related to other clients and lawsuits. The Court has never granted these Defendants a blank check to harass the Scruggses at their depositions, and it should not do so now.

The Oxford deposition was harassment, pure and simple IMO. If what we’re reading about the “good faith” effort of a single phone call here and the similar events, or non-events as the case maybe, described by Harlan Winn in his email message to Hunter Twiford, are accurate accounts of what took place, these recent motions to compel testimony from the Scruggs and the Rigsby sisters are harassment as well.


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