O’Keefe’s attorney challenges opposing counsel and moves to compel State Farm response

As I was reading O’Keefe’s Response in Opposition and Motion to Compel , I was reminded that people who love sausage and people who believe in justice should never watch either of them being made.

It’s not easy to believe in justice when you look at the list of Katrina insurance cases with documents filed yesterday and note that  O’Keefe attorney Christopher C. Van Cleave was facing opposition that filed one or more documents in 17 cases.

Remember that as you read the latest from O’Keefe v State Farm. When SLABBED last reported on O’Keefe v State Farm, State Farm had filed an Emergency Motion to Quash Plaintiffs’ Excessive Discovery Requests.

Van Cleave clearly took State Farm’s position as a personal affront.  After all, he’s not in the sausage making business.  He begins by explaining why the requests are not excessive.

The subject litigation involves, in essence, two separate lawsuits (each against multiple parties) filed in a single cause. One “suit” addresses claims under the Plaintiffs’ State Farm business policy, which covers a business structure located at 10265 Rodriguez Street, D’Iberville, Harrison County, Mississippi, and loss of income sustained for the business operations conducted from those premises.

The second suit addresses claims under Danny and Celeste O’Keefe’s State Farm homeowner’s policy, which covers their home, additional structures and personal contents located at 12901 Hanover Drive, Ocean Springs, Jackson County, Mississippi; and alternative living expenses arising from the Plaintiffs being unable to live there due to destruction of the home by Hurricane Katrina.

He then very carefully explains he had participated in the mandated attorney conference with Wayne Williams, Counsel for State Farm, on or about Tuesday, January 27, 2009.

During that conversation, the issue of the number of discovery requests that would be permitted was expressly addressed. Undersigned Counsel for the Plaintiffs noted that this case in reality really involves two entirely separate law suits, and that the Plaintiffs would justly be entitled to serve a total of thirty (30) discovery requests  (Interrogatories, Requests for Production and Requests for Admission) for each claim (30 of each type of request for claims under homeowner’s policy, and 30 of each type of request for claims under business policy).

Counsel also discussed the fact that the original discovery requests served in State Court were served by former counsel for the Plaintiffs, and that new counsel for Plaintiffs were pursuing additional and different claims than those pursued by original counsel for the Plaintiffs.

And, then, he drew a line in the sand with his name of the line – in bold and underlined:

Undersigned Counsel certifies to this Honorable Court that Mr. Williams expressly agreed that State Farm would not object to Plaintiffs serving a total of 30 NEW Interrogatories and Requests for Production in the Federal Court proceeding.

Mind you, we’re still on page 2 of Van Cleave’s 8-page response that he supplements Pages from Okeefe response and motion to compelwith exhibits of his related email correspondence with the Webb, Sanders & Williams attorneys representing State Farm.

According to those exhibits, May 20 was the day things got hot – probably hotter than it might have been otherwise because of the condescending tone of the first message sent to Van Cleave.

Six email messages total were included as exhibits and five were sent on the 20th starting with the 2:26pm message from Bush to Van Cleave shown above.

At 4:04pm, Van Cleave sent the following message: (emphasis in original)

Clearly, we would be entitled to a full set of discovery requests on each
claim. We did not file that many requests, and did not seek leave of Court to file that many requests based on my conversation with you, and my good faith reliance on your representations. I will not sign your “good faith” certificate under these circumstances – as your position now is NOT in good faith, and is contrary to your prior representations. I suggest you file each of my emails responding to this issue as evidence ofyour “good faith” efforts to resolve this “dispute” if you choose to go forward with filing a motion on these grounds under these circumstances. I urge you to reconsider, however, and comply with your previous agreement on this issue.

Exhibited correspondence for the day ended with a 4:29pm message from Williams to Van Cleave:

Our position is a good faith effort, despite your belief to the contrary,
to limit your clients’ discovery as outlined in Paige’s initial email. It is not contrary to our previous conversation, again despite your belief to the contrary. As an alternative position, please identify those interrogatories and requests from this most recent set which you feel relate to the flood issues and we will consider those. Otherwise, as you suggest, we will have to bring our disagreement before the Court.

Van Cleave’s reply was sent at 9:53am the following morning and he wastes no time getting to the point:

Pages from Okeefe response and motion to compel-5

After reviewing his position there was no limitation on Plaintiffs’ discovery related to the flood claim, he made his point:

Your suggestion that State Farm is agreeable to Plaintiffs conducting discovery into the manner in which State Farm handled NFIP claims arising from Katrina is also disingenuous. Although I repeatedly requested deposition dates from State Farm over a period of several months to take the depositions of Dan Carrigan and Juan Guevera, two individuals directly involved in the formulation of, and negotiations with the Federal Government regarding use of”amended” guidelines for handling flood claims, State Farm provided NO response until May 18, 2009, when Ms. Bush reported State Fann does not agree to produce them for deposition. Obviously, State Fann’s tactics in this litigation resolve around obstruction, not “good faith” efforts to resolve discovery disputes.

State Farm responded slightly over a week later, filing the previously mentioned Emergency Motion to Quash Plaintiffs’ Excessive Discovery Requests on the 29th of May.  Van Cleave filed the O’Keefe’s Response jointly with a Motion to Compel on the 11th of June claiming:

Counsel for Plaintiffs made a good faith effort to have Counsel for State Farm serve responses to Plaintiffs’ properly served discovery requests without filing the subject motion with the Court (See Exhibits “1” through “6”).

State Farm’s responses to Plaintiffs’ interrogatories and requests for production were due no later than June 3, 2009; and Eleuterius’ responses to Plaintiffs interrogatories and requests for production were due no later than June 8, 2009 (See “Exhibit B” to State Farm’s [111] Motion).

Both Defendants failed to file any substantive responses to Plaintiffs’ Interrogatories or Requests for Production by the date same were due, and failed to obtain any Order from this Court relieving them of their duty to file timely, good faith responses to Plaintiffs’ discovery requests (though there was certainly time to seek such relief by filing a motion quickly after the discovery was served if Defendants’ real motive were to address what they perceived in good faith as an abuse of process).

Van Cleave had earlier discussed his view of State Farm’s real motive:

…It is clear that the real motive of State Farm’s Motion is delay, not a “good faith” discovery dispute. Such a conclusion is implicit in the timing of State Farm’s “form objection” (not raised until almost three weeks after the subject discovery requests were served); and from the relief sought in the Motion.

Apparently recognizing the lack of merit in its Motion, State Farm prays that “in the event this Court denies Defendants’ motion, Defendants seek thirty (30) days from the entry of this Court’s Order denying same in which to respond to Plaintiffs’ Interrogatories and Requests for Production.”

Obviously, State Farm is simply trying to extend the date of having to respond to Plaintiffs’ written discovery requests, so that its reasonably anticipated to be incomplete and evasive answers cannot be addressed through a Motion to Compel until discovery is nearly at its currently scheduled end in this matter.

Moreover, StateFarm failed to timely respond to any of the Interrogatories or Requests for Production propounded by the Plaintiffs in this cause, or to file a Motion that addresses substantive objections to specific discovery requests as required by Uniform District Court Rule 37.1(B).

Van Cleave was stating a very real possibility when he wrote of State Farm delaying the Company’s response too late in the discovery period for Plaintiffs to address incomplete and evasive answers.  It does happen – often enough for me to recognize the circumstances from his description.  Sausage served by the Courts in the guise of justice.

One thought on “O’Keefe’s attorney challenges opposing counsel and moves to compel State Farm response”

  1. State Farm at its worst or best depending on what side of the fence you sit. We no longer wait past the 30 days given State Farm’s history. On the 31st day we set a discovery conference a week down the road. We then give an additional week to answer and if no answer is provided, we file Motion to Compel with Request for Sanctions.

    We were tired of having our goodwill shoved in our face and decided to play “scorched earth” litigation with the defendant that invented it.

    What do you do to a bully in order to stop the abuse? Punch him square in the nose!

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