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”

Let’s talk – the Branch qui tam, Rigsby, and Judge Sarah Vance

SLABBED has been talking about the Maustaud directive on expedited claim handling process. Like most good conversations, one thing led to another – and the most recent “another” was a discussion of the relative merits of the qui tam claims filed by the Rigsby sisters and the Branch consultants.

The last SLABBED update on Branch – Support for Rigsby qui tam found hanging on the Branch qui tam docket – reported Judge Vance had requested the parties submit an order for preservation of documents.

The content of that post as well as that of a more recent post on an order issued by Judge Vance – Federal District Court Judge offers tutorial – proof of loss and segregation of damages – is relevant to the ongoing conversation about the Maustaud directive.

For example, the June update on Branch reported a Statement of Interest in Opposition to Defendant State Farm’s Motion to Dismiss filed by the United States among the entries made before the Order dismissing Branch was issued:

The fact that FIA and the WYO carriers enter into an agreement, and the agreement relates to the WYO carriers’ alleged violation of the FCA, does not mean that the FCA claim is founded on that agreement. Rather, the FCA claim is founded on the defendants’ alleged violation of a federal statute which prohibits a person, like the defendants, from acting with appropriate scienter to submit false or fraudulent claims to the government or make false statements in order to avoid an obligation to the government. Further, the FCA provides for relief – treble damages and penalties – that is not available under the Arrangement but that arises instead by statute.

The Fifth Circuit reinstated Branch, in part, last February.  The current conversation, like an off-blog mention of the case last June, reminded me to check the docket where this time I found the most recent entry was this past July, the Order and Reasons of Judge Vance’s decision on the preservation of documents : Continue reading “Let’s talk – the Branch qui tam, Rigsby, and Judge Sarah Vance”

And a Happy Hump day to you too Editilla

Nowdy has some killer stuff in the pipeline and if I can get a spare second I’ll be jumping in with a post on O’Keefe v State Farm. Seems as if Lecky is fixing to get an invite and the Farm wants to keep her testimony a secret. Here is a hint for our mentally challenged Magistrate Judge Robert Walker. All the insurers used McKinsey to develop their bad faith claims handling procedures. The systematic commission of the tort of Insurance Bad Faith is not a trade secret.

So while our readers wait on content here on Slabbed, I highly recommend surfing the links over on the Ladder. We’re blessed to have such good cyber friends. And Lecky, this Youtube vid is for you boubie: Continue reading “And a Happy Hump day to you too Editilla”

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”

Here’s a judge who took an oath of office, and lives up to it. An anonymous guest post.

Justin Maxon / The New York Times

The judges name is Jed S. Rakoff, and he “sits” in the US District Court of Manhattan.  He’s a man I could address as “Your Honor,” and sincerely mean it.  He isn’t shy about stating that the public must be able to “see” what our court system is doing if they are to have any confidence in it at all.  He’s adopted strict rules limiting what sort of materials may be kept confidential in cases before him.  He calls this “transparency,” but what he’s really saying is this . . . every time a court does something under the table, (like sealing State Farm’s documents without any basis whatsoever), it demeans the justice system and destroys people’s belief in their government. 

We all know how corporate defendants constantly game the system with their pseudo “trade secret” claims.  Good God, think of the horror stories posted on this blog alone.  Sadly, these shameless lies presented in signed court papers governed by Rule 11 honestly standards are rarely subjected to the mandatory test for excluding discoverable information: (1) the movant has the burden of proving everything they withheld is a bona fide trade secret; and (2) a record finding must be made, based on facts and/or testimony, and the controlling law in discovery cases; and (3) all of this must be preserved in a public court record, susceptible to appellate review. 

Contrast Judge Rakoff’s “transparency” with what happened in Birmingham, corporate rat’s nest of the South.  Not only were documents concealed, hell, the entire case against Cori and Keri Rigsby was ginned up to keep evidence of federal flood program fraud a secret, and at the same time persecute and defame the Rigsbys and Dick Scruggs as document thieves.  Imagine that.  What would people like Oliver Wendell Holmes and Benjamin Cardozo do if they were alive to witness an Article III Tribunal, a United States Federal Court involved in this sordid and illegal mess?  Imposing personal jurisdiction over persons not even within the court’s constitutional power . . . for the purpose of concealing a multi billion dollar fraud upon the US Treasury? Continue reading “Here’s a judge who took an oath of office, and lives up to it. An anonymous guest post.”

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”

The fastest way to succeed is to look as if you’re playing by somebody else’s rules, while quietly playing by your own – an update on Montet v State Farm and Politz v Nationwide

It certain seems to be the way to succeed with protective orders – looking as if you’re playing by somebody else’s rules, while quietly playing by your own. Perhaps someone at the Court will soon catch on with so many different plaintiffs’ counsel voicing opposition to the Gomer strategy.

Montet’s counsel, DeborahTrotter, certainly could not have made her opposition plainer in the Sur Reply she filed today refuting  defendant State Farm’s Rebuttal in Montet v State Farm:

Plaintiffs’ hereby incorporate their Reply in its entirety and maintain their position that the Defendant has not met its burden to demonstrate the documents and information at issue in its privilege log… should be deemed confidential and protected. Therefore any protective order at this time would be premature, including Defendant’s newly proposed “blanket” protective order, which was attached as Exhibit C to its Rebuttal…

Again Plaintiffs point out that Defendant has listed only 46 documents in “II. Privilege Log” that allegedly qualify for protection as Trade Secrets. However, instead of complying with the Rules of Civil Procedure 26 and the Uniform Local Rule 26.1 by providing the Court and Plaintiffs with a proper privilege log that contains information required to determine whether a qualifying privilege exists, the Defendant opted to again ignore the requirements of seeking and obtaining a protective order by good cause shown and submitted yet another proposed “blanket” protective order for the Court to enter. (emphasis added)

Rule 26 FRCP provides little bend; and, yet, the sheer number of pages makes a page-by-page determination of good cause a formidable task.

However, the Fifth Circuit provides some guidance in a 2002 Order issued in Continue reading “The fastest way to succeed is to look as if you’re playing by somebody else’s rules, while quietly playing by your own – an update on Montet v State Farm and Politz v Nationwide”

Closing the barn door after the horse is out does not cure the original violation – Bossier v State Farm

To read State Farm’s response, one would think that it was mere coincidence that “undersigned [State Farm] counsel discovered the omission” of documents on August 3, 2009, just hours after the subject motion was filed by the Plaintiff.

Not knowing Bossier’s counsel, Judy Guice, I can’t say for certain when she developed her eagle eye, only that she has one and it is focused on State Farm’s counsel:

Indeed, State Farm’s counsel not once, in its response or in its letter to the Court of August 3, takes responsibility for withholding the ordered documents until after Plaintiff’s Motion to Show Cause…

Plaintiff should not be required to have his counsel’s time spent on checking and double checking State Farm’s work to ensure that Court orders are complied with.

That this strategy is intentional is obvious by the not only unapologetic but hostile response received from opposing counsel when discrepancies and omissions are pointed out…

Not only does Bossier’s Reply in Support of Motion for Order to Show Cause for Failure to Follow Court Order take State Farm’s counsel to task, Guice holds the Court’s feet to the fire:

This Court has issued death knell sanctions against plaintiffs for allegedly failing to answer discovery and comply with court orders concerning discovery. See, e.g., Prestia v. USF&G, Civil Action No. 1:08-cv-1432-LG-RHW at ECF 38 and 39. Defendant has shown no reason why substantial sanctions should not be levied against it for disobeying a valid order of this Court.

Just in case the Court missed the point, two days later Bossier Continue reading “Closing the barn door after the horse is out does not cure the original violation – Bossier v State Farm”

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”