Rigsbys seek Order compelling State Farm to completely and promptly produce all 8000 “late-disclosed documents”

On January 14, 2011, more than a year after responses to Relators’ first document requests were due and more than six months after the close of discovery, State Farm disclosed the existence of another 8,000 pages of documents in three boxes labeled “McIntosh Zone Litigation File.” These Documents had been “discovered” in the office of Terry Blaylock, State Farm’s 30(b)(6) witness who was designated specifically to testify on matters related to State Farm’s document production and document retention practices.

State Farm acknowledges that the Documents were “brought . . . to the attention of the State Farm corporate legal department in December 2010” but the existence of the Documents was not disclosed to Relators at that time. Despite the fact that a hearing related to dispositive motions and trial scheduling was to occur on January 12, 2011 and despite the fact that State Farm was taking depositions in this case during the last week of December and the first week of January, State Farm chose not to disclose these Documents to the Relators or this Court. Instead, on January 14, 2011, two days after oral argument, State Farm gave Relators a three-line privilege log that identified these 8,000 pages of Documents simply as “Zone litigation file for
McIntosh claim.”

The January 14 “privilege log” in its entirety provides as follows:

As the Rigsbys point out, “…The “log” contained no description of any of the individual Documents, did not identify by whom the Documents were created or collected, did not identify to whom the Documents were addressed or distributed, and failed to identify any privilege or other protection applicable to any such document”. (Relators’ Memorandum in Support of Their Motion for an Order to Compel Complete and Prompt Production of Late-Disclosed Documents in Scribd’ format below)

Suprised? Not if you’ve followed Katrina litigation on SLABBED. State Farm has repeatedly claimed documents were protected and forced the Court into a costly, time-consuming examination of untold thousands of pages of documents. What makes these 8000 pages different is the Company can’t seem to keep its story straight.

State Farm has now taken three contradictory positions with respect to the Documents: (1) all 8,000 pages are responsive and privileged;10 (2) “nearly all” of the Documents are unresponsive11 and 14 pages of them are privileged;12 and (3) an unspecified number of the Documents are responsive but privileged in some unspecified way.13 In no instance has State Farm provided enough information to allow either Relators or the Court to make any determination as to the applicability of any claimed privilege.

The Rigsbys contend State Farm has “waived any privilege that might have attached to these Documents and should be ordered to produce them”.

First, State Farm produced two privilege logs that fail to provide basic information necessary to support privilege claims over these 8,000 pages of documents, including the identity of the author and recipient and the specific privilege asserted. Indeed, lumping all of these Documents into three entries makes the first log inadequate on its face. Second, the privilege log is nearly one year late. State Farm has provided no justification for failing to identify these Documents until more than a year after Relators’ requests were served and more than six months after the close of discovery. Third, the magnitude of the withheld Documents is significant relative to the total document production in this case. State Farm is withholding 8,000 pages of documents, which is equal to nearly half of the total number of documents produced. Finally, production of these three boxes will not be difficult for State Farm. The Documents at issue here were both already compiled from previous litigation and were “discovered” in the office of the
State Farm official designated to testify as to State Farm’s document retention policies.

State Farm’s status as a “sophisticated corporate litigant” and a “repeat player” in litigation makes its failure to comply with its discovery obligations even less excusable.

Less excusable, but par for the course charted by the “good neighbor”.

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4 thoughts on “Rigsbys seek Order compelling State Farm to completely and promptly produce all 8000 “late-disclosed documents””

  1. This is not an uncommon ploy. I am assuming Walker will handle this motion because it deals with discovery. If relator’s counsel had engaged in this conduct, they undoubtedly would be sanctioned. Out of all of the cheating State Farm has engaged in, this is the worst. Even if the documents are privileged (which is a quantum leap at this point), the judge or magistrate now has to review all of these documents. This is a time consuming task, which is going to consume a tremendous amount of the court’s time. Severe sanctions are warranted.

  2. Walker has been letting State Farm pull this bullshit in virtually every case he has handled as Magistrate and frankly his professional conduct has been shameful in these matters. We can count on him to do his best to let State Farm white wash and skate the consequences of withholding documents they knew full well existed the entire time.

    IMHO now is the time to roll out Nellie Williams and prove he ex parte communicated with Larry Canada.


  3. The concept of SPOLIATION has cost major corporations BILLIONS of dollars in fines and penalties not to mention the imposition of sanctions in the form of a denial of rebuttal evidence being admitted on any topic for which Spoliation becomes an issue.


    “In law, spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.

    Spoliation has two consequences: the act is criminal by statute and may result in fines and incarceration for the parties who engaged in the spoliation; also, case law has established that proceedings that might have been altered by the spoliation may be interpreted under a spoliation inference.

    The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party’s destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding: the finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party.

    The theory of the spoliation inference is that when a party destroys evidence, it may be reasonable to infer that the party had “consciousness of guilt” or other motivation to avoid the evidence. Therefore, the factfinder may conclude that the evidence would have been unfavorable to the spoliator. Some jurisdictions have recognized a spoliation tort action, which allows the victim of destruction of evidence to file a separate tort action against a spoliator.”

    There have also been instances where the trier of fact refused to allow the party who destroyed evidence to rebut opposing arguments regarding the destroyed evidence…ie if you destroyed the evidence and I say it would have shown ABC you will not be able to argue or even introduce evidence that it did not say ABC.

    Case Citation: Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)
    Nature of Case: Misappropriation of trade secrets
    Electronic Data Involved: Hard drives
    E-Discovery Issue: Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages
    Case Summary: Not Available
    Attributes: Motion for Sanctions; Data Preservation; Mirror Image; Cost Shifting; Spoliation; Keyword Search; Deleted Data; Lack of Cooperation / Inaccurate Representations

    There are numerous other cases where corporations were sanctioned and fined and ultimately paid billion dollar settlements for Spoliation and where the CEOs faced jail time.

    Interesting concept that SPOLIATION.

  4. PS: Rigsby sisters may want to also request that all documents be turned over to them with METADATA intact…may show interesting tracks of who did what to what and when…

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