Professional Documents
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Drummond V Collingsworth (REDACTED) Motion For Sanctions
Drummond V Collingsworth (REDACTED) Motion For Sanctions
Drummond V Collingsworth (REDACTED) Motion For Sanctions
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Sara E. Kropf
LAW OFFICE OF SARA KROPF PLLC
1001 G St. NW, Suite 800
Washington, DC 20001
(202) 627-6900
Drummond raised with the Special Master its intent to file this motion and requested guidance as to
whether 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 a
witness 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.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................................................... ii
I. BACKGROUND FACTS ....................................................................................................................1
A. Summary ........................................................................................................................2
B.
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C.
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II. ARGUMENT AND REQUEST FOR RELIEF ......................................................................................23
CERTIFICATE OF SERVICE ...............................................................................................................31
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TABLE OF AUTHORITIES
Cases
Page(s)
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Page(s)
iii
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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).
BACKGROUND FACTS
Despite ample opportunity, Defendants have failed to provide a satisfactory explanation for their egregious
conduct.
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. I
am 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 Ive
not 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 about
whats 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.
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 in Balcero, and Defendants volunteered Mr. Collingsworth to respond to the question:
[MR. WELLS]: So the basis of their defense is these paramilitaries were telling
the 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 a
record 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
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To 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 a
lot 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 point
we 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
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.
Pursuant 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 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
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In that filing, Defendants represented they had completed their document search and
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.
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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 link
DRUMMOND 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
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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 offering
money 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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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.
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 Court
against the Government of Colombia that relates to a disputed title to some oil
rights 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 procompetitor 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 about
the 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?
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the
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II.
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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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s explained by the
Supreme Court,
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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) (quoting Evon 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, 81
L.Ed. 808 (1937), and may put the factfinder and parties to the disadvantage, hindrance, and
delay 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 re
Amtrak 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 the
court 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, 13221323 (5th Cir. 1993) (affirming the district courts sanction of deeming the liability facts of the
plaintiffs case established).
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
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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 Malateau plaintiff ultimately
discovered the evidence, but only after repeated misrepresentations by the defendants. Id. at 1541. The court noted
that 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).
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
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Zocaras v. Castro, 465 F.3d 479, 492 (11th Cir. 2006) (affirming the dismissal of an action as a sanction pursuant
to 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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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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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 fees
incurred to date in this case;
Fashion other appropriate sanctions against Defendants in any other manner the
Court deems appropriate.
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Respectfully submitted,
/s/ H. Thomas Wells, III
William Anthony Davis, III (ASB-5657-D65W)
H. Thomas Wells, III (ASB-4318-H62W)
Benjamin T. Presley (ASB-0136-I71P)
STARNES DAVIS FLORIE LLP
P.O. Box 59812
Birmingham, AL 35259
(205) 868-6000
fax: (205) 868-6099
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 Drive
Suite 125
Birmingham, Alabama 35242
Christopher S. Niewoehner
Kendall Enyard
Savannah E. Marion
STEPTOE & JOHNSON, LLP
115 S. LaSalle Street
Suite 3100
Chicago, IL 60603
Tel: (312) 577-1240
Special Master T. Michael Brown, Esq.
Ms. Carly Miller, Esq.
Bradley Arant Boult Cummings, LLP
One Federal Place
1819 Fifth Avenue North
Birmingham, Alabama 35203
mbrown@babc.com
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camiller@babc.com
Kenneth McNeil
SUSMAN GODFREY
1000 Louisiana, Suite 5100
Houston, Texas 77002-5096
kmcneil@SusmanGodfrey.com
Robert Spotswood
William K. Paulk
SPOTSWOOD SANSOM & SANSBURY, LLC
One Federal Place
1819 Fifth Avenue North, Suite 1050
Birmingham, Alabama 35203
rks@spotswoodllc.com
wpaulk@spotswoodllc.com
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