Dishonesty is the fundamental component of a majority of offences relating to the acquisition, conversion and disposal of property (tangible or intangible) defined in the criminal law such as fraud…Intellectual dishonesty is dishonesty in performing intellectual activities like thought or communication…the conscious omission of aspects of the truth known or believed to be relevant in the particular context.
When the Rigsby sisters discovered Lecky King’s “Put in Wind file – Do Not Pay Bill Do not discuss” handwritten note stuck on the face page of engineer Brian Ford’s report on Katrina damage to the McIntosh property, it became the “face” page, one might say, “that launched a thousand” Katrina policyholder claims into court. More recently, it launched State Farm’s counsel into an intellectually dishonest representation of related evidence to the Court.
Keep in mind as you read the documentation of this intellectual dishonesty that, when she was finally deposed, Lecky King acknowledged it was her handwriting on the note:
Q. Okay. On the first page of King Exhibit 10, you see in the middle of the page there’s some handwriting?
A. Yes, sir, I see that.
Q. Do you recognize that handwriting?
A. Yes, sir, I do.
Q. Whose writing is it?
A. That’s my handwriting.
Q. Okay. And what does it say?
A. It says, Put in wind file. Do not pay bill. Do not discuss.
In the Relator’s Response to State Farm’s Motion for Limited Amendment to Case Management Order, the Rigbys’ counsel pointed out State Farm’s intellectually dishonest representation to the Court:
State Farm’s Memorandum spends several pages discussing Beth Jones’s testimony at her June 27 deposition regarding the original Brian Ford Report on the McIntosh property. State Farm claims that “Jones saw the original ‘sticky note’ on the Ford report at [SLF] and believes that it was kept in a filing cabinet” at SLF.But State Farm omitted the rest of Jones’s testimony; Jones actually testified that she had no idea whether she had ever seen the original Brian Ford report, did not know from where the sticky note she saw had come, did not know when the note arrived, and did not even know what the note said. In other words, the sum total the sum total of Jones’s testimony is that, at some point in her time with SLF, she saw a piece of paper with a sticky note on it. Yet State Farm attempts to use that testimony as a pretext for further rummaging through SLF’s files after the close of discovery.
Footnotes in the Response refer the Court to the text of the claim made by State Farm’s counsel:
The former Scruggs documents that are now in the possession of Mr. Barrett have taken on a heightened significance in light of the recent testimony by Beth Jones, Mr. Scruggs’ former administrative assistant. Indeed, the crux of the Rigsbys’ entire case against State Farm (as they frame the issue) is the October 12, 2005 engineering report prepared by Brian Ford.
While the Rigsbys have produced copies of this report to State Farm, which contains a “sticky note” on the first page, they have repeatedly sworn under oath that they did not take the original report. In fact, they have repeatedly accused State Farm of destroying the original. But Ms. Jones — Dickie Scruggs’s former administrative assistant — testified under oath that she saw the original “sticky note” on the Ford report at The Scruggs Law Firm and believes that it was kept in a filing cabinet at The Scruggs Law Firm. (emphasis as it appeared in State Farm’s Memorandum)
State Farm’s counsel included the following pages from Jones’s deposition as an exhibit to the Company’s Motion: cover page and pages 1, 2, 3, 4, 5, 59, 60, 78, 79 and 80 and cited this text from those pages without reference to the page number where the extracted text was found (page numbers added in ( ) below by SLABBED ):
Q. Who showed you this report? (59)
A. I do not remember. (59)
Q. Would it have been someone in the Scruggs Law Firm? (59)
A. I suppose. (59)
Q. Is there anyone outside of the Scruggs Law Firm that you could have discussed this report with? (59)
A. Not to my knowledge. (59)
Q. It appears that Exhibit 7, the first page is obscured by what looks to be a sticky note. Do you see that? (59)
A. I do. (59)
Q. Have you seen the original sticky note? (59)
A. Yes. (60)
Q. Where did you see it? (60)
A. On the document. (60)
Q. And would that have been at the Scruggs Law Firm in Oxford? (60)
A. Correct. (60)
Q. Where is the original sticky note now? (60)
A. I do not know. (60)
Q. What color was the sticky note? (60)
A. I do not remember. (60)
Q. Where was the report with the original sticky note kept? (60)
A. I cannot remember. (60)
Q. Was it kept in a filing cabinet or in a drawer? (60)
A. I would suspect in a filing cabinet. (60)
Q. Where would those filing cabinets have been located at the Scruggs Law Firm? (60)
A. Either behind all the legal assistants or behind my desk. (60)
Q. How many times did you see the original (60)
A. No. (78)
Q. But it did have writing on it? (78)
A. Yes. (78)
Q. Do you know of anyone else in the office who put the sticky note on there? (78)
A. I do not. (78)
The Rigsbys’ Response continues and offers as documentation of the Rigsbys’ claim supporting text from pages 74 – 76 of Jones’s deposition:
But State Farm omitted the rest of Jones’s testimony; Jones actually testified that she had no idea whether she had ever seen the original Brian Ford report, did not know from where the sticky note she saw had come, did not know when the note arrived, and did not even know what the note said. In other words, the sum total of Jones’s testimony is that, at some point in her time with SLF, she saw a piece of paper with a sticky note on it. Yet State Farm attempts to use that testimony as a pretext for further rummaging through SLF’s files after the close of discovery. (emphasis added)
Q. . . . on this Exhibit 7 that we were just talking about with the sticky note, you said that you don’t remember how it came to be in the possession of the Scruggs Law Firm; is that right?
A. That’s correct.
Q. Do you know if when this report came in the possession of the Scruggs Law Firm if it had a sticky note on it at that time or not?
A. I do not remember.
Q. Did you guys use sticky notes regularly to help you keep track of things?
A. I did personally.
Q. Yeah, I do the same, you put a sticky note on a piece of paper if you –
Q. — wanted to write a note. What other people in the office do the same thing?
A. Probably the assistants.
Q. Do you know if the sticky note that you saw on Exhibit 7 was put on by someone in the office?
A. I do not.
Q. You don’t know who put it on?
A. I do not.
Q. And you said you remembered seeing a sticky note on a report like this one. Do you remember what the note said?
A. I do not.
Q. So do you know for sure if the note you saw is the same thing that’s Xeroxed on this?
A. I do not.
Q. You just remember –
A. I cannot be 100 percent.
Q. You just remember seeing some sticky note on some report that looked like this one?
Q. And sticky notes were often used around the office?
Q. So it wouldn’t have been unusual for a sticky note to have been put on a report like this one?
Bellesouth stopped by SLABBED today and ask, “What in the world is Walker thinking about letting State Farm depose SLF?”. Frankly, Belle, I don’t know and can only suggest that Sherry may not have noticed the text extracted from Jones’s deposition was not from consecutive pages.