Drummond v Collingsworth [REDACTED] Motion for Sanctions

8/9/2019 Drummond v Collingsworth [REDACTED] Motion for Sanctions

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{B1897178}

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMASOUTHERN DIVISION

DRUMMOND COMPANY, INC.,

Plaintiff ,

vs.

TERRENCE P. COLLINGSWORTH,individually and as agent of Conrad & Scherer,

LLP; and CONRAD & SCHERER, LLP,

Defendants .

))

)))))))))))

Case No. 2:11-cv-3695-RDP-TMP

OPPOSED

Contains information designated as

Confidential Information under the

Protective Order.

DRUMMOND COMPANY, INC.S RENEWED MOTION FOR SANCTIONS AND

REQUEST FOR AN EVIDENTIARY HEARING1

William Anthony Davis, III (ASB-5657-D65W) Sara E. Kropf

H. Thomas Wells, III (ASB-4318-H62W) LAW OFFICE OF SARA KROPF PLLCBenjamin T. Presley (ASB-0136-I71P) 1001 G St. NW, Suite 800

STARNES DAVIS FLORIELLP

Washington, DC 20001P.O. Box 59812 (202) 627-6900

Birmingham, AL 35259(205) 868-6000

fax: (205) 868-6099

Attorneys for Drummond Company, Inc.

1

Drummond raised with the Special Master its intent to file this motion and requested guidance as towhether it should be filed with the Special Master or the Court. Drummond was advised the motion should be filed

with the Court. Ex. 28 (Jan. 13, 2015 Hrg. Tr.) at 152-155.

Also, since May of 2014, Defendants have designated every single page of every document they have

produced that relates to payments to witnesses including documents reflecting the simple fact of a payment to awitness as Confidential under the Protective Order (Doc. 127). Drummond views those designations as wholly

inconsistent with the terms of the Protective Order, and is currently challenging such designations before the Special

Master. Because that challenge remains pending, Drummond is publicly filing this redacted brief and

contemporaneously requesting leave to file an unredacted version under seal.

FI2015 Feb-02 P

U.S. DISTRICT

N.D. OF AL

Case 2:11-cv-03695-RDP-TMP Document 174 Filed 02/02/15 Page 1 of 36


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TABLE OF AUTHORITIES

Cases Page(s)

ABF Freight Sys., Inc. v. N.L.R.B.,

510 U.S. 317, 114 S. Ct. 835, 127 L. Ed. 2d 152 (1994)...................................................26

Adolph Coors Co. v. Movement Against Racism & the Klan,777 F.2d 1538 (11th Cir. 1985) .........................................................................................29

Barnes v. Dalton,158 F.3d 1212 (11th Cir. 1998) .........................................................................................28

Byrne v. Nezhat,261 F.3d 1075 (11th Cir. 2001), abrogated on other grounds by Bridge v. Phoenix Bond& Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008) ....................27, 28

Carlucci v. Piper Aircraft Corp., Inc.,775 F.2d 1440 (11th Cir. 1985) ...........................................................................................1

Chambers v. NASCO, Inc.,501 U.S. 32, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991).....................................................27

Chilcutt v. U.S.,4 F.3d 1313 (5th Cir. 1993) ...............................................................................................27

Cox v. American Cast Iron Pipe Co.,784 F.2d 1546 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250(1986).................................................................................................................................26

David v. Alphin,No. 3:07-cv-11, 2010 WL 1404722 (W.D.N.C. Mar. 30, 2010) .......................................26

Evon v. Law Offices of Sidney Mickell,No. CIVS090760JAMGGH, 2010 WL 455476 (E.D. Cal. Feb. 3, 2010) .........................26

Fair Housing of Marin v. Combs,285 F.3d 899 (9th Cir. 2002) .............................................................................................27

Gratton v. Great American Communications,178 F.3d 1373 (11th Cir. 1999) .........................................................................................26

In re Amtrak Sunset Limited Train Crash in Bayou Canot, AL on Sept. 22, 1993,136 F. Supp. 2d 1251 (S.D. Ala.) affd sub nom. In re Amtrak, 29 F. Appx 575 (11th Cir.2001) ..................................................................................................................................26



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In re Grand Jury Proceedings,117 F. Supp. 2d 6 (D.D.C. 2000).......................................................................................29

In re Terry,128 U.S. 289 (1888)...........................................................................................................28

Jackson v. Murphy,468 F. Appx 616 (7th Cir. 2012) ......................................................................................27

Malautea v. Suzuki Motor Co., Ltd.,987 F.2d 1536 (11th Cir. 1993) ...................................................................................26, 27

Martin v. Automobili Lamborghini Exclusive, Inc.,307 F.3d 1332 (11th Cir. 2002) .........................................................................................28

Olivas v. A Little Havana Check Cash, Inc.,

324 F. Appx 839 (11th Cir. 2009) ....................................................................................28

Videojet Sys. Intl, Inc. v. Eagle Inks, Inc.,251 F.3d 170 (Fed. Cir. 2000)............................................................................................29

Zocaras v. Castro,465 F.3d 479 (11th Cir. 2006) .....................................................................................28, 29

Statutes and Rules Page(s)

18 U.S.C. 401(1) .........................................................................................................................28

Ala. R. Prof. Cond. 3.3...................................................................................................................11

Fed. R. Civ. P. 37.....................................................................................................................26, 29



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If this case is not a paradigm of the abuse that sanctions under Rule 37 are to correct, we

would have great difficulty hypothesizing one that is. Carlucci v. Piper Aircraft Corp., Inc.,

775 F.2d 1440, 1449 (11th Cir. 1985).

The evidentiary record warrants and the integrity of the judicial

process demands severe sanctions. Should the Court require an additional evidentiary record,

Drummond requests an evidentiary hearing at which Defendants be required to show cause why

sanctions should not be entered against them.2

I. BACKGROUND FACTS

2 Despite ample opportunity, Defendants have failed to provide a satisfactory explanation for their egregiousconduct.

Drummond remains

convinced that Defendants conduct warrants severe sanctions. Ex. 32 (Feb. 2, 2015 Wells Ltr.).



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A. Summary

In October of 2013, this Court held that the fact of payments to witnesses was properly

within the scope of discovery, and compelled documents and information on this issue to be

produced over Defendants work product objections. In doing so, the Court made abundantly

clear to Defendants just how serious the witness payment issue was:

THE COURT: Okay. Let me just say this. Ive tried to be very clinical in my

approach to these discovery disputes; in other words, just call balls and strikes. Iam concerned about the allegations. I dont feel like I would be doing a service to

either side, particularly the Defendants, unless I said that in this hearing.

Im not presuming any of these allegations are true, but when I look at what was

submitted by [Drummond] yesterday -- and I know you havent -- or day before

yesterday, and I know you havent had a chance to really respond to that, so Ivenot asked you to do that. But I feel like I would not be candid as I should be with

you if I told you that I was anything but very concerned about these assertions. . . .

But I think at some point in the future when these issues become more clear aboutwhats really happened, I think I may have to assess whether theres something I

need to do beyond just ruling on discovery motions. Make sense?

MR. SMITH: Yes, Your Honor.

Doc. 63 (Oct. 10, 2013 Hrg. Tr.) at 84:4 85:11. That message apparently did not resonate with

Defendants.

On March 7, 2014after Defendants had for months represented to this Court and courts

across the country that all documents reflecting payments to, or requests for payments by,

witnesses had already been produceda third party, the Parker Waichman, LLP, law firm,

produced documents

.3 Because Defendants had never produced these

critical documents and had repeatedly represented they did not exist, Drummond moved for

3

Citations to numerically designated exhibits will be to those attached to the declaration of H. Thomas Wells, III filed

contemporaneously herewith.



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sanctions. See Doc. 104, generally. In a sworn declaration opposing that motion, Mr.

Collingsworth represented to this Court that

During the hearing on that motion, this Court raised its concern over this issue,

The Court also directly asked the Defendants to disclose the true scope of witness

payments inBalcero, and Defendants volunteered Mr. Collingsworth to respond to the question:

[MR. WELLS]: So the basis of their defense is these paramilitaries were tellingthe truth; and not only that, I reasonably believe that they were telling the truth.

And if he was paying them and it looks like were starting to build a record that

almost everyone has been paid and I think we are going to be able to build arecord that everyone was paid at some point, then that is very, very relevant to

whether or not he reasonably believed

JUDGE PROCTOR: Let me ask that question to Mr. Smith. Mr. Smith, consult

with Mr. Collingsworth and let me know this. Is there a witness that I have

received testimony from south of the Equator that didn't receive a security

payment?

MR. SMITH: Can he answer that?

JUDGE PROCTOR: Sure. Im trying not to put him on trial. Im going through

4To be clear, Drummond is not seeking sanctions against Mr. Smith for the egregious conduct perpetrated by Mr.Collingsworth and Conrad & Scherer.



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counsel.

MR. SMITH: I appreciate that, Your Honor.

MR. COLLINGSWORTH: Your Honor, the shortest way to the truth is to ask

me the question. Thank you. Our papers have made it clear and I will say that alot of the new ambush allegations that theyve made, each time they make one if

we get a chance to show you the facts, the facts clear up any misunderstanding of

what happened. There were exactly in this case three witnesses whose family

members were moved because they received death threats, and those were

Charris, Helvez [Gelvez], Guartay [Duarte]. Those are the witnesses whose

family members were moved. There was an additional person named Halcon

who was participating in Drummond 1 way out there and I had little to do

with. I never met the guy.

JUDGE PROCTOR: Drummond 1 in front of Judge Bowdre?

MR. COLLINGSWORTH: Thats correct. He was relocated and at some pointwe began also helping him with his relocation assistance, but our interrogatory

responses to them made clear we took him off the table, I found him not to be

credible, and he is not a witness. So the three witnesses that I've mentioned,

Charris, Guartay, and Helvez, are the family members of those people who

were relocated.

JUDGE PROCTOR: Are those the only three besides Halcon who received

security payments?

MR. COLLINGSWORTH: Thats correct.

Id. at 30:1-31:19 (emphasis added). At that time, the Court denied Drummonds motion for

sanctions without prejudice, stating that the Court needs an evidentiary record before making a

ruling on that. Id.at 50:19-22.



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B.

As this Court is well aware, Defendants witness payments have become the focal point

of discovery in this case. For more than a year and a half, Drummond has spent enormous

amounts of time and resources trying to uncover the true scope of these payments through

discovery requests to the Defendants, third party depositions, and third party subpoenas for

documents.6 Defendants have obstructed Drummonds efforts at nearly every turn and in

multiple venues, refusing to produce responsive documents or obey this Courts October 15,

2013 Order. Defendants have repeatedly sought sanctions against Drummond in other federal

district courts for subpoenas relating to witness payments they have characterized as

duplicative, harassment and abusive fishing expeditions.

5

6Pursuant to this Courts instruction at the April 21, 2014 hearing, Drummond has attempted to further develop the

testimonial record and was able to complete the depositions of Messrs. Paul Wolf and Richard Gordon. Ex. 2 (Wolf

Dep.); Ex. 3 (Gordon Dep.). Defendants, however, have objected to any further depositions until the pending work

product issues are resolved by the Court.



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In this Court, Defendants have characterized Drummonds allegations of improper

witness payments, and Defendants concealment of these payments, as speculative,

maliciously false, outrageous, and mud-slinging. Doc. 114 at 1, 20. With righteous

indignation, Mr. Collingsworth stood up before this Court and stated that there were exactly

three witnesses in Balcero who received payments: Charris, Duarte, and Gelvez. Doc. 123

(Apr. 21, 2014 Hrg. Tr.) at 30:1-31:19.

7



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In July 2013, Drummond filed a motion to compel responses to its discovery requests,

setting forth the documentary evidence of Defendants witness payments to Charris, Halcon,

Duarte and Gelvez. See Doc. 43 at 14-20; Doc. 50 at 5-7. In their response to that motion,

Defendants cited Mr. Collingsworths sworn declaration and repeatedly represented to this Court

8

9



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that all documents reflecting payments to witnesses had been produced:

In purporting to seek further discovery regarding payments made to witnesses,

Drummond asserts, as if it had discovered a nefarious plot, that it has evidence

Mr. Collingsworth paid witnesses and their families. DR. Mot. 14. First, all of

the evidence Drummond has was produced by Plaintiffs in the Balcero case,and Plaintiffs produced every responsive document they had. Collingsworth Decl. 4.

[]Defendants have provided Drummond all responsive documents, and the only

reason Drummond knows about the security payments is because Defendants

provided the documents.

Doc. 46 at 3 & 21.

On October 10, 2013, this Court held a hearing on Drummonds motion to compel, and

the following exchange occurred between this Court and Defendants counsel:

THE COURT: Why wouldnt -- if theres allegations or at least theres colorable

allegations that your client participated in making security payments to witnesses,

and those witnesses, after receiving the payments, changed their testimony insome form or fashion, why wouldnt that be discoverable in a defamation action

where your client is accused of falsely stating that Drummond engaged in these

criminal violations in three different letters?

MR. SMITH: The question is are the security payments information discoverable?

THE COURT: Yeah, discoverable in the defamation action.

MR. SMITH: Your Honor, we think they are, and we have produced responsive

documents. With exception of one that is on our Privilege Log, we haveproduced all responsive documents.

Doc. 63 (Oct. 10, 2013 Hrg. Tr.) at 25:25-26:16 (emphasis added).



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On November 7, 2013 Defendants filed a supplemental brief in opposition to

Drummonds motion to compel. Doc. 68. In that filing, Defendants represented that there were

credible death threats made against many of the witnesses who were about to give depositions in

Balcero, and with respect to three of them, Defendants concluded that their family members

were in immediate danger. Id. at 3 (emphasis added). Citing Mr. Collingsworths sworn

declaration, Defendants also represented they had always been open and clear regarding their

security payments, stating they had disclosed documents establishing they had provided

necessary security to three witnesses, Duarte, Gelvez, and Charris. Id.at 11.

On January 22, 2014, Defendants filed an opposition to Drummonds motion for an

extension of the deadlines in the Courts original Scheduling Order. Doc. 91. In that filing,

Defendants represented to this Court that [o]nly one category of document production remains

pending which relates the financing of litigation against Drummond, and that these extant cost

documents are not going to yield any facts on the truth or falsity of Drummonds participation of

criminal acts in Colombia. Id.at 3.

On April 14, 2014, Defendants filed a vitriolic response to Drummonds motion for

sanctions regarding Defendants fraudulent concealment of witness payment documents (Doc.

104), characterizing Drummonds motion as maliciously false and outrageous. Doc. 114 at

1. In that filing, Defendants represented they had completed their document search and

supplemental log in full compliance with the Courts discovery Order. Id. at 2. Mr.

Collingsworth also testified that he receive[d] the last batch of responsive documents [on] April



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1, 2014, that he was personally involved in reviewing the same, and that those documents were

ready for production. Doc. 114-2 (Apr. 14, 2014 Collingsworth Decl.) 4.

10

10



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On September 2, 2014, Drummond and Parker

Waichman entered into a stipulation whereby any disputes over the Parker Waichman subpoenas

would be transferred to this Court to be handled by the Special Master. Ex. 15 (Sept. 2, 2014

Stipulation). In that stipulation, Parker Waichman agreed to produce documents that it withheld

as privileged by October 3, 2014 for in camera review by the Special Master. Id. at 3.



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11



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C.

I want to state before Mr. Prosecutor with all due respect that a lot of interests are

moving with respect to this issue since the only objective of this moment is to linkDRUMMOND to a civil proceeding so that a proceeding be reopened in the

United States, the proceeding that had already been closed. It is merely a

12



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financial interest. It would be good that the Office of the Prosecutor would look

into the labor unions, NGOs and a large amount of lawyers who are offeringmoney to these demobilized groups that are in precarious financial conditions so

that they say what they want to hear or say.

Doc. 88-6 at 14-15; Doc. 99 at 5-6.



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In November 2011, Mr. Collingsworth filed a

brief in Balcero opposing Drummonds motion to compel a complete response to an

interrogatory seeking a description of anything of value offered or given by Plaintiffs, or

anyone acting on Plaintiffs behalf including counsel, to any witness. Ex. 20 (Balcero Doc.

255). He argued that this request, as it related to any potential witness, was too broad and

implicated work product concerns, but represented to this Court that all information concerning

offers or payments to actual witnesses had been disclosed. Id. at 9. This Court took this

representation at face value. Ex. 21 (BalceroDoc. 332, Order on Mot. to Compel) at 6 (citing

Mr. Collingsworths representations, and holding, To be sure, Defendants are entitled to know

whether Plaintiffs or their representatives offered anything of value to those individuals listed on

Plaintiffs Rule 26 disclosures, and they presumably have been given that information.).



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The same day the above order was entered, this Court held a hearing regarding security

concerns raised by Drummond due to the fact that Mr. Collingsworth had issued a press release,

which was published on the Llanos Oil website, disclosing the date, time and location of the

letters rogatory testimony of Samario in Colombia. the

Court expressed serious misgivings about Mr. Collingsworths relationship with Llanos Oil:

THE COURT: [] First, what is the relationship between Llanos and

Drummond?

MR. COLLINGSWORTH: There is no they are competitors in Drummond

excuse me in Colombia. I believe that Llanos has a claim in the World Courtagainst the Government of Colombia that relates to a disputed title to some oilrights that Drummond holds.

THE COURT: Okay.

MR. COLLINGSWORTH: There is no relationship to this case, Your Honor.

[]

THE COURT: [] Mr. Collingsworth, Im going to say one more thing: I

am concerned about this whole business with Llanos. Cant put my finger on

it, but at a minimum I could say this to you: I dont know that your clients

best interests includes that type of an association with a competitor of

Drummond because youre going to open yourself up at a minimum to

questions about your approach to this case and what your interests are . Are

they pro-plaintiff or anti-Drummond; or are they anti-Drummond plus pro-competitor of Drummond.

You need to think carefully about continuing that type of thing. Im aware of the

complaint filed before Judge Acker. He and I have had some discussions aboutthe suitability of consolidating that case. We have, at this point, decided to let

things ride. So I cant erase that from my memory bank. Understand?

16



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MR. COLLINGSWORTH: Yes, sir. Thank you. Ill discuss it.

THE COURT: All right. I want you to do more than discuss it; I want you to

take under full advisement what Ive said to you.

MR. COLLINGSWORTH: Yes. Thats what I meant, Your Honor.

Ex. 22 (Mar. 8, 2012 Hrg Tr.) at 8:23-9:7; 68:1-24 (emphasis added).

The Court also directed Defendants to provide a comprehensive privilege log

detailing everything responsive to Drummonds requests withheld on a claim of privilege, and

issued the following warning: But please understand this. If theres a fiber, if there is a

molecule out there that you say is privileged, it better be on the Privilege Log or else it will be

waived . . . when you supplement. Doc. 63 at 46:4-9.



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On December 20, 2013, Defendants produced a supplemental privilege log pursuant to

this Courts Order, purporting to include the privileged documents, if any, responsive to most

of Drummonds requests,

II. ARGUMENT AND REQUEST FOR RELIEF.



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Severe sanctions are not only warranted, they are absolutely necessary to protect the

integrity of the judicial process.

Drummond has spent enormous amounts of time and resources pursuing discovery of

Defendants witness payments. This Court has also been forced to devote a huge amount of its

resources to complex discovery disputes in this case, causing not only Judge Proctor, but also

Magistrate Judge Putnam and Special Master Mike Brown to expend substantial time and effort.

Defendants, meanwhile, have done everything within their power over the last year and half to

obstruct discovery,

Defendants will no doubt ask this Court to overlook their egregious misconduct, citing

inadvertence or mistake or stating we got a new team, its a new day. Ex. 25 (Nov. 18, 2014

Discovery Conference Transcript) at 8:2. This Court should decline to do so. That Defendants

have retained eight new lawyers has nothing to do with this motion. The DefendantsMr.

Collingsworth and Conrad & Schererhave remained the same throughout this litigation and it

is against these Defendants that sanctions are sought.



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17

s explained by theSupreme Court,



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Defendants conduct is egregious. The consequences should be commensurate with their

conduct.

This Court has broad authority under Rule 37 to control discovery. Cox v. American Cast

Iron Pipe Co.,784 F.2d 1546 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d

250 (1986). Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and

ensure the integrity of the discovery process. Gratton v. Great American Communications, 178

F.3d 1373, 1374 (11th Cir. 1999). Improperly withholding discoverable documents is

sanctionable conduct under Rule 37. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536,

1539 (11th Cir. 1993) (upholding a default judgment sanction after the defendants stubbornly

withheld discoverable information by improperly objecting to interrogatories and by providing

only partial responses to the interrogatories they answered). Defendants not only withheld

documents here, they deliberately altered documents that were produced

David v. Alphin, No. 3:07-cv-11, 2010 WL 1404722, at *7 (W.D.N.C. Mar.

30, 2010) (quotingEvon v. Law Offices of Sidney Mickell, No. CIVS090760JAMGGH, 2010 WL

455476, at *2 (E.D. Cal. Feb. 3, 2010)) (if you make unwarranted redactions, a court may well

award sanctions for non-disclosure of requested evidence up to and including default/dismissal

based on a seeming bad faith hiding of information).

Where, as here, a failure to produce discoverable documents is accompanied by willful

False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a

flagrant affront to the truth-seeking function of adversary proceedings. [] In any proceeding,

whether judicial or administrative, deliberate falsehoods well may affect the dearest concerns of

the parties before a tribunal, United States v. Norris,300 U.S. 564, 574, 57 S.Ct. 535, 539, 81L.Ed. 808 (1937), and may put the factfinder and parties to the disadvantage, hindrance, anddelay of ultimately extracting the truth by cross examination, by extraneous investigation or other

collateral means.Ibid.Perjury should be severely sanctioned in appropriate cases.

ABF Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317, 323, 114 S. Ct. 835, 839, 127 L. Ed. 2d 152 (1994). See also In reAmtrak Sunset Limited' Train Crash in Bayou Canot, AL on Sept. 22, 1993, 136 F. Supp. 2d 1251, 1270 (S.D.

Ala.) affd sub nom. In re Amtrak, 29 F. Appx 575 (11th Cir. 2001) ([A] partys infusion of perjury into the

pretrial proceedings in an effort to gain an advantage over his opponent is recognized by the courts as a fraud on thecourt warranting the dismissal of a plaintiffs case or the entry of a default judgment against a defendant.).



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conduct, severe sanctions are appropriate. Defendants have not only intentionally withheld

documents that [they] knew existed, but [they] also knowingly made blatant misrepresentations

to the district court about the existence of those documents. Chilcutt v. U.S., 4 F.3d 1313, 1322-

1323 (5th Cir. 1993) (affirming the district courts sanction of deeming the liability facts of the

plaintiffs case established). See also Malautea, 987 F.2d at 1542-44 (default judgment

sanction pursuant to Rule 37 was richly deserved where the defendant violated the district

courts discovery orders)18

;Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)

(upholding a default judgment sanction where Combs not only failed to produce the documents

as ordered, but also misrepresented to both counsel and to the district court that the documents

did not exist);Jackson v. Murphy, 468 F. Appx 616, 620 (7th Cir. 2012) (affirming dismissal

sanction where plaintiff both perjured himself and forged a document critical to the prosecution

of his case, and his fraud was uncovered only after a costly and contested hearing).

This Court also possesses the inherent power to sanction the Defendants for their

misconduct. The Supreme Court has recognized this inherent power is appropriately exercised

where a court finds that fraud has been practiced upon it, or that the very temple of justice has

been defiled, or when a party shows bad faith by delaying or disrupting the litigation or by

hampering enforcement of a court order. Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.

Ct. 2123, 2133, 115 L. Ed. 2d 27 (1991) (citations omitted). The key to unlocking the courts

inherent power is bad faith. Byrne v. Nezhat, 261 F.3d 1075, 1123 (11th Cir. 2001), abrogated

on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170

18 In Malateau, the Eleventh Circuit found that the prime example of the defendants resistance to

discovery was their deliberate cover up of damaging evidence regarding General Motors refusal to market the

Samurai in the United States. 987 F.2d at 1540. he Malateauplaintiff ultimately

discovered the evidence, but only after repeated misrepresentations by the defendants. Id.at 1541. The court notedthat the defendants responses to discovery requests seeking this information were if not completely false, at least

misleading, and that the defendant deliberately withheld this information from the plaintiff. Id.



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L.Ed.2d 1012 (2008). A party . . . demonstrates bad faith by delaying or disrupting the

litigation or hampering enforcement of a court order. Barnes v. Dalton, 158 F.3d 1212, 1214

(11th Cir. 1998) (citation omitted).

False statements in affidavits, depositions, and sworn statements alone do not warrant a

finding of bad faith, but such statements can be evidence of bad faith if there is other evidence

in the record indicating that the statement[s] [were] made for a harassing or frivolous purpose.

Olivas v. A Little Havana Check Cash, Inc., 324 F. Appx 839, 842 (11th Cir. 2009) (quoting

Byrne, 261 F.3d at 1125).

Under these facts, severe sanctions pursuant to this Courts inherent

power are also warranted.19

are nothing less than contempt of court. See 18 U.S.C. 401(1) ([a]

court of the United States shall have power to punish by fine or imprisonment, at its discretion,

such contempt of its authority, and none other, as . . . [m]isbehavior of any person in its presence

or so near thereto as to obstruct the administration of justice); In re Terry, 128 U.S. 289, 303

(1888) (recognizing the historical and inherent authority of courts to punish for contempt which

is essential to the preservation of order in judicial proceedings, the enforcement of orders, and

consequently to the due administration of justice). It is well settled that [m]aking false

19Zocaras v. Castro, 465 F.3d 479, 492 (11th Cir. 2006) (affirming the dismissal of an action as a sanction pursuantto the courts inherent power and explaining that the partys misrepresentations raise concerns about the integrity

and credibility of the civil justice system that transcend the interests of the parties that appear before this Court, and

because this willful and deliberate behavior is without justification and in flagrant contempt of the judicial process,this Court must impose the harsh penalty of dismissal); Martin v. Automobili Lamborghini Exclusive, Inc., 307

F.3d 1332, 1335-36 (11th Cir. 2002) (affirming dismissal of an action and the award of a defendants costs and

attorneys fees as sanctions pursuant to the district courts inherent power where the plaintiff misled the court and

engage[ed] in extensive discovery abuse to obstruct revelation of known falsities in the complaint).



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statements to a court constitutes misbehavior that is punishable as contempt, so long as the

other elements of the contempt statute are satisfied. In re Grand Jury Proceedings, 117 F.

Supp. 2d 6, 27-28 (D.D.C. 2000) (going on to describe the other elements as making a

knowingly false statement that is material to an issue to be determined by the court).

A contempt finding is therefore appropriate.

Drummond

respectfully submits that a default judgment is the only appropriate outcome, as history proves

any lesser sanction will not have any effect on the Defendants. Adolph Coors Co. v. Movement

Against Racism & the Klan, 777 F.2d 1538, 1543 (11th Cir. 1985) (upholding the district courts

sanction of a default judgment, citing defendants bad faith noncompliance and no reasonable

expectation that lesser sanctions under Rule 37 would have had the necessary effect.).

Furthermore, any lesser sanction will not sufficiently deter others from making a mockery of the

judicial process as Defendants have done here. See Zocaras, 465 F.3d at 484 (the harshest of

sanctions are warranted where the grounds are conduct that so violates the judicial process that

imposition of a harsh penalty is appropriate not only to reprimand the offender, but also to deter

future parties from trampling upon the integrity of the court); Videojet Sys. Intl, Inc. v. Eagle

Inks, Inc., 251 F.3d 170 (Fed. Cir. 2000) (upholding default judgment as sanction for discovery

misconduct, finding the integrity of the judicial process is as important to the public interest as



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30{B1897178}

allowing defendants to present allegedly meritorious defenses).

Drummond therefore requests that this Court hold Mr. Collingsworth in contempt of

court and further requests that this Court sanction the Defendants for their egregious behavior by

entering a default judgment against them on the issue of liability, allowing Drummond a trial by

jury on the issue of damages. Drummond further requests that it be awarded all of its costs and

attorneys fees incurred in this case (or, at the very least, those incurred after entry of this Courts

October 15, 2013 Order).

If this Court is not inclined to enter a default judgment against the Defendants,

Drummond alternatively requests the entry of the following sanctions:

Strike Defendants affirmative defenses;

Hold that Defendants have waived any claim of privilege or work-productprotection

Award Drummond its attorneys fees and costs incurred in litigating its original

motion for sanctions and this renewed motion for sanctions;

Award Drummond its attorneys fees and costs incurred in litigating Defendants

motions to quash

Order Defendants to pay the entirety of the Special Masters costs and feesincurred to date in this case;

Fashion other appropriate sanctions against Defendants in any other manner the

Court deems appropriate.



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31{B1897178}

Respectfully submitted,

/s/ H. Thomas Wells, III /s/ Sara E. KropfWilliam Anthony Davis, III (ASB-5657-D65W) Sara E. Kropf

H. Thomas Wells, III (ASB-4318-H62W) LAW OFFICE OF SARA KROPF PLLCBenjamin T. Presley (ASB-0136-I71P) 1001 G St. NW, Suite 800

STARNES DAVIS FLORIE LLP Washington, DC 20001

P.O. Box 59812 (202) 627-6900Birmingham, AL 35259

(205) 868-6000

fax: (205) 868-6099

Attorneys for Drummond Company, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on February 2, 2015, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which will send notification of such filing to the

following:

Bradley J. Smith, Esq.

Eric D. Bonner, Esq.Clark, Hair & Smith, P.C.

1000 Urban Center DriveSuite 125

Birmingham, Alabama 35242

Christopher S. Niewoehner

Kendall Enyard

Savannah E. MarionSTEPTOE & JOHNSON, LLP

115 S. LaSalle Street

Suite 3100

Chicago, IL 60603Tel: (312) 577-1240

Special Master T. Michael Brown, Esq.Ms. Carly Miller, Esq.

Bradley Arant Boult Cummings, LLP

One Federal Place1819 Fifth Avenue North


[email protected]



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[email protected]

Kenneth McNeil

SUSMAN GODFREY

1000 Louisiana, Suite 5100

Houston, Texas [email protected]

Robert SpotswoodWilliam K. Paulk

SPOTSWOOD SANSOM & SANSBURY, LLC

One Federal Place1819 Fifth Avenue North, Suite 1050


[email protected]@spotswoodllc.com

/s/ H. Thomas Wells, IIIH. Thomas Wells, III (ASB-4318-H62W)


Drummond v Collingsworth [REDACTED] Motion for Sanctions

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