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-log2
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”

What’s the Score? dog-wagging-tail protective orders turn game around (part 2 of 2)

Reminiscent of the scene from the Wizard of Oz where Toto exposes the “great and powerful Oz” to be nothing more than a frail man hiding behind a curtain, counsel for State Farm implores the Court to “pay no attention” to its failure to comply with yet another court order…

Bossier’s Reply in Support of Motion for Sanctions Under Rule 37(b) provides the Court with additional information on document requested in discovery, contending the these are examples of State Farm’s conduct that violates the Court’s Order and subjects the Company to the sanctions of Rule 37(b) FRCP :

Shellie Leverett’s re-evaluation report was finally produced three days following her deposition. (See Exhibit 1). A statement State Farm took of Joseph Ziz on May 11, 2009, was produced on July 8, 2009, (the day before Mr. Ziz’s deposition)although the attached map was not produced until the day after his deposition. (Exhibit 2). Some requests have never been fulfilled. For example, State Farm produced only part of the underwriting file and has ignored requests for the rest. (Exhibit 3). (emphasis added)

chart 1  from Bossier Reply 2Bossier added a startling claim in a footnote to the five-page chart that offers the Court additional examples of State Farm’s response to discovery with a comparison of the documents State Farm listed in the privilege log of Lizana v State Farm to the treatment of those same documents in Bossier.

State Farm…has failed to identify any specific document as having been produced among the 9,000 pages contained on two unlabeled, unindexed CD’s produced in discovery. A lack of such identification obviously fails to establish that any particular document was, in fact, produced in this case and constitutes an admission by omission.

SLABBED will examine the confusing, and perhaps conflicting, position of the Court on protective orders after Continue reading “What’s the Score? dog-wagging-tail protective orders turn game around (part 2 of 2)”

What’s the score? 0 – 2 on tail-wagging-dog Protective Orders

Right of the bat, we’re going to find out if I cut my 7th inning stretch short.   Frankly, what I found when I later turned my attention to the docket of the day to check for any additions in cases SLABBED made me wonder if one day of reflection was going to be sufficient.

Magistrate Judge Parker pitched a Protective Order to State Farm in Lizana and Magistrate Judge Walker tossed the Company another in Montet .  Since it took Parker 2 (pages) to do what Walker did in 7, Parker is up first for examination:

State Farm has cited numerous cases within this jurisdiction, with facts and issues very similar to those involved in this matter, wherein protective orders have been entered with respect to the same types of information at issue here. As in those cases, State Farm has demonstrated good cause for the entry of a protective order and, accordingly, the motion will be GRANTED.

Walker said much the same, however:

The court, being duly advised in the premises, finds that good cause exists for the issuance of a Protective Order; therefore, it is ORDERED and ADJUDGED…

Now, a good portion of my 7th inning stretch was devoted to reflecting on “good cause” for a protective order in discovery.  I’ve observed that counsel for both parties in a case and the District Court “hang their hat” with the Fifth Circuit and, since I’m neither a lawyer nor an officer of the Court, I decided that I’d follow and hang mine on the 5th’s order quoted in the most recent SLABBED update on Montet which clearly states: Continue reading “What’s the score? 0 – 2 on tail-wagging-dog Protective Orders”

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”

boogaloo shing-a-ling Judge Walker orders State Farm to dance with Boosier

In accordance with the Court’s order of June 5, 2009, the Court has reviewed in camera certain emails withheld from production by State Farm on grounds of privilege. The pages of emails are sequentially numbered BOSR00000001PRIV through BOSR00000048; BOSR00000010EM through BOSR00000035EM; and BOSR00000045EM through BOSR00000050EM.

I was working my way through a stack of briefs when Here Comes the Judge with an Order in Bossier v State Farm that gives State Farm’s privilege log the boogaloo shing-a-ling.

(all emphasis below added)

Judge I got a boy here who can’t dance.

The Court will first take the opportunity to advise counsel that any time documents claimed to be privileged are ordered produced for in camera inspection, the privilege log asserting the privilege claimed should accompany the documents delivered to the Court.

Can’t dance?  Ah

In the present case, searching through other documents filed with the Court yielded the pertinent privilege log attached as an exhibit to another pleading.

Ninety days...

The privilege claimed for all the documents reviewed by the Court is “anticipation of litigation.” … Documents prepared in the ordinary course of business are not protected as prepared in anticipation of litigation…

After careful examination of each page of the documents…

thirty days for boogaloo… Continue reading “boogaloo shing-a-ling Judge Walker orders State Farm to dance with Boosier”