Magistrate Judge Walker – the Company man shows his hand in rush to trump Magistrate Judge Parker

As reported in Now, about that document State Farm produced for Judge Senter in Rigsby qui tam, Coast attorney Deborah Trotter of the Merlin Law Group is counsel for plaintiff’s in three similar cases currently before the Court, Judge Senter presiding.  Magistrate Judge Parker was assigned Lizana v State Farm and Magistrate Judge Walker the other two, Lebon v State Farm, and New Light Baptist Church v State Farm:

Defendant simultaneously filed three motions for protective order in response to Plaintiff’s Notices of 30(b)(6) Depositions, one of which was an expedited motion to quash and for protective order, for which the Lebon Court ordered Plaintiff on November 9, 2009, to Respond by 9:00am on November 10, 2009, during Hurricane Ida Warnings. As all three motions filed simultaneously by Defendant were similar in substance, context and argument, with the exception of the additional motion to quash in the Lebon case, Plaintiff’s counsel determined that in the interest of judicial economy and consistency that all should be responded to simultaneously and in combination. (Plaintiff’s Amended Response, Lizana)

Plaintiffs’ notices were filed simultaneously but State Farm’s motions were cleverly staggered:

  • October 30: Lizana, Lebon and New Light Baptist Church plaintiffs each file Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum
  • November 6: Lebon v State Farm: Motion to Expedite, Motion to Quash Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum think and Motion for Protective Order by State Farm
  • November 9:  New Light Baptist Church v State Farm: MOTION for Protective Order Regarding Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum by State Farm
  • November 11: Lizana v State Farm: MOTION for Protective Order Regarding Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum by State Farm

Cleverly staggered – and cleverly planned to produce the following result: Continue reading “Magistrate Judge Walker – the Company man shows his hand in rush to trump Magistrate Judge Parker”

While today’s Bossier verdict is still a rumor, chew on this!

If you read A Private Matter, a Public Court, you’ll know how deeply troubled I am by the injustice in our system of justice.  I’m even more concerned after reading a comment reporting:

Unconfirmed, but I’m hearing it was a defense verdict today. No punitives, no extracontractuals.

Once again, I ask: Where is the law that prohibits Judge Walker from allowing State Farm to run out the clock and run up the tab on plaintiffsbossier-timeline3

In early August, the 10th in fact, SLABBED posted a timeline of Guice’s five-month effort to compel discovery in Expedite is a plaintiff’s turtle and an insurer’s hare.

Slabbed also reported Bossiers’ counsel was still fighting the discovery battle two week’s before trial – Bossier challenges State Farm’s round tuit approach to compliance with Court’s Order – Trial begins in 2 weeks!

Out of respect for the chair, or in this case the bench, I held my tongue typing finger over the most telling Order of all SLABBED reported: Judge Walker sorta sanctions St. Farm – issues parking ticket in Bossier v State Farm.

I repeat, there was no justice, kindness or humility in Judge Walker’s orders nor any excuse for his conduct of the pre-trial discovery in Bossier…Give juries the evidence needed to make just decisions. Open court so that open court is a reality and not a lofty ideal.

Judge Starrett on State Farm Fire and State Farm Mutual – a distinction without a difference

Amazing, is it not, that Judge Walker could find no reason to lawfully deny Burger’s motion to file an amended complaint; yet, Judge Ozerden had no problem finding a reason to deny O’Keefe’s:

State Farm Fire maintains that there is a suggestion of bad faith in Plaintiffs’ attempt to add State Farm Mutual, and that allowing Plaintiffs to amend their Complaint to add this Defendant would result in undue delay and would be futile…The Fifth Circuit has interpreted “futility” in the amended pleading context to mean that an amended complaint fails to state a claim upon which relief can be granted…

Clearly Judge Ozerden sees a distinction between State Farm Fire and State Farm Mutual. However, his collegue Judge Starrett has declared it a distinction without a difference:

General Hood made some effort to distinguish State Farm Mutual Automobile Company, a mutual insurance company, from State Farm Fire and Casualty Company, a stock insurance company.  The Court believes this to be a distinction without a difference, since all of the stock in the stock company is in fact owned by the mutual company.

Judge Starrett’s opinion on the relationship between State Farm Mutual and State Farm Fire is found in his Order of recusal, entered in State Farm v  Hood (October 10, 2007).

Hood’s position is understandable with a look at the settlement agreement at issue in the injunction State Farm obtained in Starrett’s court prior to his recusal.

agreement 2

Note the Settlement Agreement is specific to Hood’s case against defendant  State Farm Fire! Continue reading “Judge Starrett on State Farm Fire and State Farm Mutual – a distinction without a difference”

Judge Walker sorta sanctions State Farm – issues parking ticket in Bossier v State

At least Magistrate Judge Walker acknowledged State Farm failed to comply with the Court’s September 3rd Order with the Order for Sanctions he issued today in Bossier v State Farm.

Before the Court is  Plaintiff’s motion for sanctions for Defendant’s failure to comply with court order of September 3, 2009, which was an agreed order prepared by counsel for the parties and submitted to the Court following a telephonic hearing on discovery matters held that same date. The order required production, “within 14 days from September 3, 2009,” of claims files from a specified area depicted on a map, also prepared and submitted by counsel as an exhibit to the agreed order entered by the Court. Plaintiff complains Defendant neither produced the documents nor communicated with his counsel regarding the files ordered produced by September 17, 2009.

Restating this text in terms that reflect reality, it should have read, “The order suggested production ‘within 14 days from September 3, 2009’ but gave Defendant State Farm leave to get it done whenever.”

Defendant does not deny it was late in producing claim files as required by the agreed order, but points out that it timely complied with that part of the order requiring production of unredacted copies of previously produced files. Continue reading “Judge Walker sorta sanctions State Farm – issues parking ticket in Bossier v State”

What’s the score? Can’t tell with Senter pitching – looks like Bossier still holding bat

In any dispute involving discovery of evidence or privilege, our judicial system is left to rely, at least to some degree, on the good faith of the parties…it is crucial for this Court to be aware that State Farm’s attempt to silence damaging evidence against the company is not an isolated event or a rare occurrence, but is instead part of a concerted, corporate strategy to avoid, at any cost, damaging evidence against the insurer from ever seeing the light of day.

…In over a decade of bad faith litigation with State Farm and its defense counsel, Plaintiff’s counsel’s experience is that State Farm takes the “mad dog defense” strategy very seriously. Unfortunately, because many judges are reluctant to impose meaningful sanctions, State Farm’s strategy frequently pays off. Thur and O’Sullivan Amicus Curiae Brief

Yesterday, Judge Senter ruled on Bossier’s two Motions for Review of the U.S. Magistrate Judge’s Orders – denying both after considering  Plaintiff’s objections under the standard set forth in Fed. R. Civ. P. 72(a): any portion of the Magistrate Judge’s order shall be modified or set aside if it is found to be clearly erroneous or contrary to law.

The Court agrees with Defendant’s general assessment that Plaintiff’s…motions concentrate more on the substance of the underlying cause of action than on demonstrating how the Magistrate clearly erred or acted contrary to law. However, Plaintiff can hardly be criticized for pursuing further review, especially given the fact that the documents were submitted by Defendant (which had sole possession of them) for in camera inspection, meaning Plaintiff did not have access to them. The Magistrate in his…orders described in some detail the materials, but that is not the same as the documents themselves.

model Privilege Log created by SLABBED to illustrate content required by the Rules re: What’s the score? 0 – 2 on tail-wagging-dog Protective Orders.

This Court has conducted an independent assessment of the documents reviewed in camera, and finds that the Magistrate was correct in his legal conclusion… that “it is the nature of the materials at issue and the circumstances of the case which determine whether materials were prepared in anticipation of litigation rather than the date litigation actually commenced.” Continue reading “What’s the score? Can’t tell with Senter pitching – looks like Bossier still holding bat”

Pinocchio’s nose – State Farm Protective Orders

There are more SLABBED posts and comments on State Farm Protective Orders that I care to count on a weekend; but, it should go without saying there has been no “good cause” for any to be favorable.

Good cause simply can’t be because I said so unless it’s said by your mother – and Judge Walker is not anyone’s mother.

The Court, being duly advised in the premises, finds that good causes exists for the issuance of a Protective Order, it is therefore…

06 2 letter to Walker

Since the Rules require good cause to be established, there had to be a case that Judge Walker was “duly advised” of the “premise” before he started routinely granting protective orders – or so I naively thought until I read the letter from Hickman Goza Spragins to Judge Walker a second time before closing the Pontius file of exhibits to Stephan Hinkle’s deposition testimony.

State Farm operational guides and training materials have been consistently found to be protected trade secrets by other courts. Hamilton v State Farm Mutual Auto Ins.,Co 204 F.R.D. 420, 423-25 (S.D.lnd. 2001)

At the time the letter was written to Judge Walker, there must have been only two cases with Protective Orders to list: Loehn v State Farm and Cooney v State Farm.  Plaintiffs in both cases were represented by Charles A. Boggs of the Metairie, Louisiana firm of Boggs Loehn Rodrique. Continue reading “Pinocchio’s nose – State Farm Protective Orders”

Judge Senter modifies Magistrate’s Order in part – Bossier v State Farm

Plaintiff does not have carte blanche in the discovery process (and Plaintiff’s thoroughness in the pursuit of information may not equate to discoverability), but at the same time Defendant should not unilaterally determine that certain material is restricted.

Judge Senter’s Order granted the Bossier’s motion in part and modified Magistrate Judge Walker’s order in part.  However, what he means by, “The issues in this case appear to be no different from those in other typical Hurricane Katrina lawsuits” is very different from what a good many others would mean by those same words – and that part confounds the total impact of the Order.

For example, when Judge Senter repeats and expands on this position again later, he states:

In light of the Court’s observation that this case is no different from other Hurricane Katrina insurance litigation, the remainder of Plaintiff’s discovery requests are overly broad…

Yet, what he sees as “overly broad,”  others might see as merely scratching the surface :

“meetings [and other events] of any description”; documents (and other items) “of any sort whatsoever” related, inter alia, to handling “Hurricane Katrina claims” and “wind vs. water claims”; and the handling of NFIP claims (when there was no flood insurance in this case)…

Likewise, what he sees as unreasonable, some would say is the only reasonable way to discover why the typical Hurricane Katrina insurance lawsuit includes property near the water with no flood insurance:

…the Magistrate Judge required State Farm “to produce those documents containing [Defendant’s] directives, guidelines, policies and procedures for handling Hurricane Katrina claims in general or Plaintiff’s claim specifically.” Anything beyond, including the formulation of those directives, guidelines, policies, and procedures, is unreasonable.

However, the modification Judge Senter made was to a portion of Walker’s Order that was in dire need of correction: Continue reading “Judge Senter modifies Magistrate’s Order in part – Bossier v State Farm”

What’s the score? Can’t tell – this Court needs 7th inning stretch

A week from today,  August 29, 2009 will mark the beginning of the fifth year following Hurricane Katrina – time for a 7th inning stretch.

Although I had to double down on posts the day before, I had my 7th inning yesterday – reflecting on what I know and don’t know about Katrina litigation and what I need to know to help the slabbed.

“This Court” – the Southern District Federal Court hearing Katrina litigation – needs a 7th inning for reflection as well.

As the storm moved inland and it became possible to assess the damage, there was little doubt  a legal storm would follow – that it so quickly became a Category 5 was the only surprise.

Much of the post-Katrina preparation for the legal storm to come fell to Magistrate Judge Walker — largely by default:   “One  week after the storm, the U.S. Marshals located all of the federal judges on the Gulf Coast and determined that I was the only judge whose home had not been destroyed.”

Katrina litigation began with the Court in a survival mode.  Continue reading “What’s the score? Can’t tell – this Court needs 7th inning stretch”

Rigsby qui tam – what’s hot, what’s not, what’s up?

Judge Senter’s Opinion covered a lot of ground and left only one issue outstanding:

The next four State Farm motions seek the exclusion of the Relators’ four expert witnesses: Patrick J. Fitzpatrick, Ph.D. [294]; Keith G. Blackwell, Ph.D. [296]; R. Ralph Sinno, Ph.D. [298]; and David J. Favre [300]. I will address the motions [294] [296] [298] [300] challenging the qualifications of the Relators’ expert witnesses in a separate opinion.

SLABBED has given these four motions little more than passing mention although we’ve covered State Farm’s backdoor approach attacking the credibility of these same witnesses in other cases.

Frankly, State Farm’s use of “demonstrative evidence” at the hearing made their motions “moo” to me (as in “bull$%&t”) and, instead, SLABBED posted State Farm plays video game at Rigsby qui tam hearing after noticing items on State Farm’s evidence list were contrary to an earlier Order that read in part:

Defendant will not be allowed to introduce “demonstrative evidence” under the guise of calling it a “supplement,” especially when it appears that the sole purpose for offering the “supplement” is not to fulfill a duty under the Federal or Local rules, but to avoid the Court’s prior ruling on a similar issue. Furthermore, placing the burden on Plaintiff at this late date to counter this material is unduly prejudicial.

That same thinking should apply to State Farm’s effort to disqualify experts who have testified in countless other cases.  However, in pulling the post to add the link to this one, I noticed something interesting related to what’s hot in Judge Senter’s Order

so I may know the outer limits of the potential claims involved in this
action, I will require State Farm to submit, in camera, a list containing the name of the insured, the address of the property, and the amount of flood insurance paid, for all SFIP claims that meet the following criteria…

We’ll get to the criteria after looking at these maps: Continue reading “Rigsby qui tam – what’s hot, what’s not, what’s up?”

expedite is a plaintiff’s turtle and insurer’s hare

turtlehare no linesThere is a time disparity is the Court’s treatment of plaintiffs and defendants that has resulted in a situation where expedite is a plaintiff’s turtle to the advantage of insurer defendants making expedite their hare.

Turtles are everywhere in Katrina litigation – often with the information needed to represent the plaintiff shielded in privilege logs that do not comply with applicable rules and law.  Discovery is a nightmare.  Decisions routinely are based on defendant’s claim discovery has been completed, even when plaintiff’s claim to the contrary.  The Court seeming makes no independent inquiry and issues knee-jerk orders with regularity.  Plaintiff’s counsel takes his or her life in hand when meeting the ethical responsibility to file a request for reconsideration of a Magistrate’s order – so much so that rumor has it the plaintiff’s bar has purchased purple hearts.

How evident it is to others, I don’t know.  How regularly anyone reviews the dockets is something I can’t begin to guess.  An attorney I am not; but, one need not be to know that motions related to discovery merit a timely response and it’s just not happening.

Nowhere is the disparity between the Court’s treatment of plaintiffs and defendants more evident than Continue reading “expedite is a plaintiff’s turtle and insurer’s hare”