Drummond Company, Inc. v. Collingsworth

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DRUMMOND COMPANY, INC., )

)

Plaintiff, )

)

v. )

)

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

TERRENCE P. COLLINGSWORTH, )

individually and as an agent of Conrad & )

Scherer, LLP; and CONRAD & SCHERER, )

LLP, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

The Special Master has submitted five Reports and Recommendations regarding the

application of the crime-fraud exception to the attorney-client and work product privileges. (Docs.

# 569, 572, 590, 622, 633). This matter is before the court on Defendant Terry Collingsworth’s

objections to those Reports and Recommendations. (Doc. # 634).

I. Background

Lest we forget why the parties and the court are going through this arduous process, a quick

reminder may be in order. It came to the parties and the court’s attention that Collingsworth, a

Defendant in this case and Plaintiffs’ counsel in a number of cases against Drummond Company,

Inc. (which is the Plaintiff in this case), had made payments to certain witnesses related to those

prior cases against Drummond. “Drummond served discovery requests about the methods

Collingsworth and his litigation team had used in the alien tort cases to secure testimony from the

witnesses, including information about any payments made to the witnesses.” Drummond Co., Inc.

v. Conrad & Scherer, LLP, 885 F.3d 1324, 1330 (11th Cir. 2018). This court determined that those

witness payments were a proper subject of discovery in this case. (Doc. # 64 at 3-4).

During the course of this litigation and other matters, Collingsworth “repeatedly made

knowingly false representations in pleadings, affidavits, correspondence, and open court [which]

rise[] far above the level of mere discovery violations.” (Doc. # 417 at 17). The years-long series

of false representations are set forth in detail in the court’s December 7, 2015 Memorandum

Opinion and Order at pages 8-17. (Doc. # 417 at 8-17).

Collingsworth and Conrad & Scherer asserted that much of the discovery into witness

payments was precluded by the attorney-client privilege or the work product privilege. (See, e.g.,

Doc. # 62). In response, “Drummond asked the court to hold that the crime-fraud exception vitiated

Collingsworth and C&S’s claims of attorney-client privilege and work product protection.”

Drummond, 885 F.3d at 1331. This court “made a preliminary determination that the crime-fraud

exception may apply to overcome their assertions of privilege and attorney work product

protection and ordered a special master to perform an in camera review to determine whether the

crime-fraud exception does apply.” Id. at 1327. Specifically, the court “determined that the crime-

fraud exception’s first prong was satisfied as to three crimes: fraud on the court1, witness bribery,

and suborning perjury.” Id. at 1332. The court certified its order for immediate appeal. (Doc. # 417

at 49).

1 Fraud on the court is a particular type of fraud “which does[,] or attempts to, defile the court itself, or is a

fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial

task of adjudging cases.” Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (internal marks omitted).

Fraud among parties, without more, or fraud that can be exposed at trial, such as perjury, is not fraud on the court. Id.

Instead, fraud on the court involves “the most egregious misconduct, such as bribery of a judge or members of a jury,

or the fabrication of evidence by a party in which an attorney is implicated.” Gupta v. U.S. Atty. Gen., 2014 WL

685403, at *1 (11th Cir. 2014) (internal marks omitted). Thus, fraud on the court generally involves “‘an

unconscionable plan or scheme’ to improperly influence the court’s decision.” Gupta v. Walt Disney World Co., 519

F. App’x 631, 32 (11th Cir. 2013) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978)).

Collingsworth and C&S filed separate petitions with the Eleventh Circuit, seeking

permission to file interlocutory appeals from this court’s order. Drummond, 885 F.3d at 1334. Two

different motion panels ruled on the petitions. Collingsworth’s petition was denied. (Doc. #457).

A separate motion panel granted Conrad & Scherer’s petition, but limited review to the following

two questions:

1. Can agency principles be used to impute the application of the crime-fraud

exception to an agent’s principal where the principal has separately-held privileges

as a co-defendant in the suit and there is no finding that the exception applies

directly to the principal?

2. Can agency principles be used to impute the application of the crime-fraud

exception to an agent’s principal where the agent is operating as an attorney and

there is no finding that the client’s behavior triggered the crime-fraud exception or

that the exception applies directly to the principal?

(Doc. # 453).

Conrad & Scherer then filed a motion to confirm exclusive jurisdiction over this court’s

December 7, 2015 order; which was granted by a third motions panel. That panel expanded the

scope of appellate review (see id. at 2) (“[T]he entire Order is before us on appeal.”) and divested

this court of jurisdiction over all aspects of the order (id. at 4). (See id. at 4) (“This means that the

district court lacks the authority to order any further discovery of the materials that are the subject

of its crime-fraud Order, unless we direct that it may proceed as to a portion of those materials.”).

After briefing and oral argument, the merits panel concluded that interlocutory review was

only appropriate to address one aspect of this court’s order. Id. at 1328. Therefore, it vacated in

part as improvidently granted the third motion panel’s order. Id. It elected not to review the

question of whether this court erred in applying agency principles to conclude that Conrad &

Scherer intended to commit a crime or fraud and created attorney work product or made

communications in furtherance of the crime or fraud because it did not present a pure question of

law suitable for review on an interlocutory basis under § 1292(b).2 Id. The merits panel did address

the following question:

[W]hether the crime-fraud exception may be applied to overcome C&S’s assertion,

as a defendant in this case, that its materials related to other lawsuits where it served

as counsel are protected as attorney work product when the firm’s clients in those

lawsuits were innocent of any wrongdoing.

Id. As the court concluded:

the crime-fraud exception may defeat work product protection in this circumstance.

We thus affirm the part of the district court’s order determining that the crime-fraud

exception could be applied to overcome C&S’s claim of work product protection

for materials related to lawsuits where C&S served as counsel despite the fact that

its clients were innocent of wrongdoing.

Id.

The parties mutually agreed that it was appropriate to appoint a Special Master to oversee

discovery in this action. The parties also stipulated that T. Michael Brown, Esq. of the law firm

Bradley Arant Boult Cummings LLP should be appointed as Special Master. (Doc. # 128). The

Special Master has performed an in camera review of certain categories of documents that

Defendants contend are protected by the attorney client privilege or work product protection.

Pursuant to the Eleventh Circuit’s directive, and because this court had already found that there

had been a prima facie showing that Defendants had engaged in criminal or fraudulent conduct,

The Special Master reviewed the documents to determine whether each document “(1) reflects a

2 Actually, the court concluded that Conrad & Scherer was subject to the crime-fraud exception based upon

agency principles and its own conduct. As the court noted in its December 7, 2015 order:

it would be incredulous to believe that no one at Conrad & Scherer other than Collingsworth knew

of the payments made to witnesses in this case. Payments were delivered on a monthly basis by the

firm, using the firm’s money, and through the firm’s normal approval process as documented in the

firm’s business records. (Doc. #405 at 1-4). As of May 23, 2011, at a minimum, Terrence

Collingsworth, Bill Scherer, Richard Drath, Billy Scherer, Susana Tellez, Lorraine Leete, Victoria

Ryan, Pauline Kroper, and Danielle Kisslan had all received written notice that El Tigre and Samario

had been paid. (See Doc. #402 at 1-4).

(Doc. 417 at 20 n.15).

communication used to further a crime or fraud or was closely related to it or (2) was created to

further a crime or fraud or was closely related to it.” Drummond, 885 F.3d at 1339, n.14. The court

instructed, and the Special Master acknowledged, that when evaluating the second prong of the

crime-fraud exception, the requirement that the document or communication be made in

furtherance of or related to fraudulent conduct “should not be interpreted restrictively.” In re

Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1227 (11th Cir. 1987). See also Doc. # 417

at 5; Doc. # 569 at 21, n.10.

The Special Master has submitted five Reports and Recommendations. (Docs. # 569, 572,

590, 622, 633). In each of his Reports and Recommendations, the Special Master organized his

recommendations by category, and listed the documents in each category in the exhibits thereto.

The Special Master has reported that documents listed in Exhibit A constitute attorney work

product and/or attorney-client communications, do not facially fall under any exception to the

work product protection or attorney-client privilege, and are therefore privileged. The Special

Master has reported that documents listed in Exhibit B should be produced pursuant to the crime-

fraud exception because they reflect documents and communications that relate closely to or are

in furtherance of the alleged criminal and/or fraudulent activities that were the subject of the

court’s previous order. (Doc. # 64). The Special Master has reported that documents listed in

Exhibit C should be produced because they do not constitute work product or attorney-client

communications, or because the claimed privilege has been waived through disclosure to a third

party. In the first three Reports and Recommendations, the Special Master identified another

category of documents, listed in Exhibit D, for which he recommended production after the

redaction of certain privileged information.

In light of (1) the sheer number of documents claimed as privileged by the Defendants, (2)

the fact that Drummond has generally challenged the claim of privilege as to each and every

document logged (thus requiring the Special Master to review more than 18,000 documents), and

(3) the number of objections raised by the parties to the Special Master’s reports and

recommendations, the court required the parties to review and recertify their objections to the first

three Reports and Recommendations. The purpose of this process was to reduce the number of

documents at issue. Unfortunately, these efforts did not prove particularly helpful. The parties have

also filed objections to the last two reports and recommendations issued by the Special Master

after the recertification order.

II. Applicable Law and Standard of Review

As the Eleventh Circuit has explained, the crime-fraud exception to the attorney-client and

work product privileges:

allows a party—in rare circumstances—to obtain discovery that otherwise would

be protected by the attorney-client privilege or the attorney work product doctrine.

The crime-fraud exception applies when a two-part test is satisfied:

First, there must be a prima facie showing that the client was engaged in

criminal or fraudulent conduct when he sought the advice of counsel, that

he was planning such conduct when he sought the advice of counsel, or that

he committed a crime or fraud subsequent to receiving the benefit of

counsel's advice. Second, there must be a showing that the attorney's

assistance was obtained in furtherance of the criminal or fraudulent activity

or was closely related to it.

[In re Grand Jury Investigation, 842 F.2d 1223, 1226 (11th Cir. 1987)]. Stated

simply, the crime-fraud exception removes the “seal of secrecy” from attorney-

client communications or work product materials when they are made in

furtherance of an ongoing or future crime or fraud. [United States v. Zolin, 491 U.S.

554, 56 (1989); see Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 14–22 (11th

Cir. 1994)] (recognizing that the crime-fraud exception “applies to work-product in

the same way that it applies to the attorney-client privilege”). When the crime-fraud

exception applies, an attorney’s opinion work product is discoverable. Cox, 17 F.3d

at 1422.

Drummond, 885 F.3d at 1335. “[F]or the crime-fraud exception to apply, a court must find that the

specific document or testimony that the court is ordering to be produced reflects work of the

attorney that was performed in furtherance of the criminal or fraudulent activity or that was closely

related to it.” Drummond, 885 F.3d at 1338 (emphasis added). In remanding the case for the

Special Master’s in camera review of documents, the Eleventh Circuit specifically instructed: “[t]o

conclude that the crime-fraud exception applies to require disclosure of any specific document, the

special master must find that the document either (1) reflects a communication used to further a

crime or fraud or was closely related to it or (2) was created to further a crime or fraud or was

closely related to it. Id., at 1339, n.14 (emphasis added) (citing Cox, 17 F.3d at 1422; In re Grand

Jury Investigation, 842 F.2d at 1227). This is not merely the applicable law, this is the law of this

case.

Federal Rule of Civil Procedure 53 sets forth the appropriate standard of review for a

district court in reviewing recommendations made by a Special Master. Rule 53(f)(3) provides as

follows:

Reviewing Factual Findings. The court must decide de novo all objections to

findings of fact made or recommended by a master, unless the parties, with the

court's approval, stipulate that:

(A) the findings will be reviewed for clear error; or

(B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) will be final.

Fed.R.Civ.P. 53(f)(3). Rule 53(f)(4) controls the court’s review of legal conclusions:

Reviewing Legal Conclusions. The court must decide de novo all objections to

conclusions of law made or recommended by a master.

In acting on a report and recommendation, the court must afford the parties an opportunity

to be heard. Fed. R. Civ. P. 53(f)(1). “The requirement that the court must afford an opportunity

to be heard can be satisfied by taking written submissions when the court acts on the report without

taking live testimony.” Fed. R. Civ. P. 53, Advisory Committee’s note to the 2003 amendments.

The court may “adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the

master with instructions.” Fed. R. Civ. P. 53(f)(1). Consistent with Rule 53, the court will review

all objections to the Special Master’s privilege findings based upon the correct standard of review.

III. Analysis

There are currently five Reports and Recommendations of the Special Master to which the

parties have filed objections or re-certified objections:

1. February 14, 2019 Amended Report and Recommendation Regarding Claims of

Privilege Over Documents Logged as “Bucket 2” on Defendants’ Privilege Logs (Doc. #

569);

2. February 28, 2019 Amended Report and Recommendation Regarding Claims of

Privilege Over Documents Related to Ivan Otero (Doc. # 572);

3. September 23, 2019 Report and Recommendation Regarding Documents

Potentially Related to Witness Payments (Doc. # 590);

4. March 25, 2020 Report and Recommendation Regarding Witness Payments (Doc.

# 622); and

5. June 1, 2020 Report and Recommendation Regarding Certain Uncategorized

Documents (Doc. # 633).

The parties have re-certified their objections to the first three Reports and Recommendations and

have filed objections following recertification to the last two.

A. Collingsworth’s Objections

In an attempt to reduce the number of documents at issue in relation to the court’s crime-

fraud review, the court directed the parties to “attest[] that these re-certifications have been made

in good faith taking into account Eleventh Circuit precedent and the law of the case.” (Doc. # 620

at 2-3). Defendant Collingsworth filed one Certification of Objections to Reports and

Recommendations, which contains a general objection to all five of the Special Master’s Reports

and Recommendations. (Doc. # 634). Alternatively, however, he states that he “joins in [Conrad

& Scherer’s objections] and adopts them as if fully incorporated.” (Doc. # 634 at 3).

Prior to his re-certification, Collingsworth identified documents over which he maintains

objections to the Special Master’s first two Reports and Recommendations. At the court’s direction

(Doc. # 586), he provided copies of the documents which are the subject of his objections to the

court for in camera review. Also at the court’s direction, Collingsworth filed a Declaration in

Support of Certification of Objections.3

1. The General Objection

Collingsworth’s Certification states that “for all documents in the Exhibit Bs to the five

R&Rs, Defendant Collingsworth renews and certifies his objections to the improper application of

the second prong of the crime fraud test, whether a specific document was ‘in furtherance of’ a

crime or fraud.’” (Doc. # 634 at 2) (emphasis in original). This statement of the “law” reveals

Collingsworth’s refusal to apply the legal standards applicable in this Circuit and already

pronounced as the law of this case. To reiterate, the law of this case, according to the Eleventh

Circuit, is that “for the crime-fraud exception to apply, a court must find that the specific document

or testimony that the court is ordering to be produced reflects work of the attorney that was

performed in furtherance of the criminal or fraudulent activity or that was closely related to it.”

Drummond, 885 F.3d at 1338 (emphasis added).

Collingsworth asserts, without providing any concrete examples tied to any particular

documents, that “the Special Master applied the overbroad ‘related to’ test rather than the required

‘in furtherance of the criminal or fraudulent activity or was closely related to it’ standard.” (Doc.

3 Although the parties were to certify that their objections were made in good faith according to Eleventh

Circuit law, Collingsworth’s declaration states that all of his “objections … were made in good faith based on Eleventh

Circuit precedent concerning the scope of the second prong of the crime fraud test as well as based on precedent from

other Circuit Courts and other authority applying that standard.” (Doc. # 634-1 at 1-2) (emphasis added).

# 634 at 7). Collingsworth argues that the Special Master’s “application of the standard continues

to be overbroad” and that “the proper standard of whether a specific document is ‘itself in

furtherance of the crime or fraud.’” (Id. at 8-9) (emphasis in original). For this formulation of the

crime-fraud test, Collingsworth cites cases from the Second and Fifth Circuits. But, it is the

Eleventh Circuit’s formulation that is binding on this court. Collingsworth’s assertions are

bottomed on an inapplicable standard, and they completely ignore the “or was closely related”

standard that our circuit has confirmed applies in this case. (Doc. 634 at 9-18).

Indeed, a careful review of it shows that Collingsworth’s entire Certification utterly

discounts the “closely related to” prong of the Eleventh Circuit’s test. And, it ignores the

disjunctive “or” between the “in furtherance of” prong and the “closely related to it” prong.

Drummond, 885 F.3d at 1338. It also incorrectly seeks to restrictively apply the second prong.

Schroeder, 842 F.2d at 1227. “Generally, the relatedness requirement ‘should not be interpreted

restrictively.’” Gutter v. E.I. Dupont De Nemours, 124 F. Supp. 2d 1291, 1314 (S.D. Fla. 2000)

(quoting Schroeder, 842 F.2d at 1227). Because Collingsworth’s objection rests on an improperly

narrow application of the relatedness prong, his general objection is OVERRULED.

2. Documents Provided for In Camera Review

The court next turns to documents provided by Collingsworth for in camera review.

Document CSPRIV413500 is an Attorney Cooperation Agreement between Ivan Otero

and Terry Collingsworth dated January 27, 2009. Ivan Otero is the “Colombian attorney who

served as the intermediary for payments from [Conrad & Scherer] to El Tigre and Samario and

from van Bilderbeek to Blanco.” Drummond, 885 F.3d at 1333. The Agreement references certain

funds provided to Otero that will be “used to assist key witnesses with any security measures they

need [] to allow them to provide evidence for the case.” Defendants have consistently characterized

the payments made to witnesses in this case as “security payments.” Of course, there is substantial

evidence to the contrary.4 Because the document is an agreement pursuant to which witness

payments were to be made, the court concludes that this document quite clearly reflects a

communication that is at the heart of the issue in this matter. Thus, the court quite easily concludes

that the document is discoverable because there is sufficient evidence that it was in furtherance of

“a crime or fraud or was closely related to it” and/or “was created to further a crime or fraud or

was closely related to it.” Id., at 1339, n.14. Therefore, Collingsworth’s objection to the

determination that Document CSPRIV413500 is subject to the crime fraud exception is

OVERRULED.

Document CSPRIV413501 appears to be a contract between Collingsworth and a client,

Rafael Garcia Torres dated November 20, 2008. Although it is in Spanish, it does not appear to

“reflect a communication used to further a crime or fraud or was closely related to it,” nor does it

appear it “was created to further a crime or fraud or was closely related to it.” Id., at 1339, n.14.

However, such agreements are generally not privileged. See Armor Screen Corp. v. Storm Catcher,

Inc., 2009 WL 2767664, at *2 (S.D. Fla. Aug. 31, 2009) (“the communication of factual

information, such as reports containing a litigation’s status, fee agreements, and retainer

agreements are generally not protected by the attorney-client privilege”) (citing O'Neal v. United

States, 258 F.3d 1265, 1276 (11th Cir. 2001)) (“it is the law of this Circuit that information

involving receipt of attorneys’ fees from a client is not generally privileged”). Indeed, the “great

4 For example, and this is but one example, on May 22, 2011, Collingsworth emailed lawyers at the Parker

Waichmann firm and informed them that he had already paid Otero, Samario, and El Tigre $5400 in cash and that

Conrad & Scherer would be making monthly $2700 payments to Samario and El Tigre “until we get the deps in the

can.” (Doc. #174-6). Bill Scherer and Richard Draft (then the CEO of Conrad & Scherer) were copied on the email

and it was forwarded to Bill Scherer’s son, Billy Scherer. (Doc. #174-6; Doc. #311-2 at 232:1-25). Making “security

payments” to a witness until his deposition is concluded, and then ceasing those payments once the “deps [are] in the

can,” is hardly consistent with security concerns for that witness.

weight of authority ... refuses to extend the attorney-client privilege to the fact of consultation or

employment, including the component facts of the identity of the client and the lawyer.” Howell

v. Jones, 516 F.2d 53, 58 (5th Cir. 1975).5 Therefore, Collingsworth’s objection to the

determination that Document CSPRIV413501 is due to be produced is OVERRULED.

Document CSPRIV441001 is a two-page e-mail chain between Collingsworth and

Lorraine Leete, a lawyer and member of Collingsworth’s litigation team, regarding methods of

providing security for Ivan Otero, including whether and how to provide funds for an armored car

versus temporarily relocating Otero. Although the communication is between two lawyers, it

appears to relate to business and practical matters, rather than any legal or strategic matters. See In

re Vioxx Prod. Liab. Litig., 501 F. Supp. 2d at 797 (citing In re CFS-Related Securities Fraud

Litigation, 223 F.R.D. 631 (N.D. Okla. 2004) (“Business advice, unrelated to legal advice, is not

protected by the privilege even though conveyed by an attorney to the client.”)). Therefore, it does

not appear to be a privileged communication. Collingsworth’s objection to the determination that

Document CSPRIV441001 is due to be produced is OVERRULED.

Document CSPRIV469107 is an e-mail chain dated September 25, 2012, entitled “CS and

$$$”, with the original e-mail from Collingsworth to Leete and other lawyers involved in the

Drummond case, and possibly other cases. The e-mail concerns a conversation between

Collingsworth and Conrad & Scherer’s CFO, Richard Drath, regarding “payments for offices in

Columbia, security for Ivan, etc.” Although the communication is between lawyers, it appears to

relate to business and financial matters, rather than legal or strategic matters. See In re Vioxx Prod.

Liab. Litig., 501 F. Supp. 2d at 797 (citing In re CFS-Related Securities Fraud Litigation, 223

F.R.D. 631 (N.D. Okla. 2004) (“Business advice, unrelated to legal advice, is not protected by the

5 The decisions of the former Fifth Circuit handed down before October 1, 1981, are binding in the

Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

privilege even though conveyed by an attorney to the client.”)). Therefore, it does not appear to be

a privileged communication. Moreover, even if it were privileged (and again, it is not), the

document relates to payments to Otero, who facilitated payments to witnesses; therefore, it may

constitute a communication that “was created to further a crime or fraud or was closely related to

it.” Drummond, 885 F.3d at 1339, n.14. Therefore, Collingsworth’s objection to the determination

that Document CSPRIV469107 is due to be produced is OVERRULED.

Document CSPRIV469125 is an e-mail chain between Collingsworth, Richard Drath,

William Scherer, Lorraine Leete, and others regarding budgets for cases against Drummond,

Chiquita, and Dole. While the budgets may be privileged as revealing case strategy, the e-mails

themselves provide no details that reflect any case strategy. The only detail mentioned in the e-

mails is the salary of a particular employee who had received a raise. Although the

communications are between lawyers, they appear to relate to business and financial matters, rather

than legal or strategic matters. See In re Vioxx Prod. Liab. Litig., 501 F. Supp. 2d at 797 (citing In

re CFS-Related Securities Fraud Litigation, 223 F.R.D. 631 (N.D. Okla. 2004) (“Business advice,

unrelated to legal advice, is not protected by the privilege even though conveyed by an attorney to

the client.”)). Because it does not appear to be a privileged communication, Collingsworth’s

objection to the determination that Document CSPRIV469125 is due to be produced is

OVERRULED.

Document CSPRIV520559 is a four page document entitled “Specific Categories of

Requests” which appears to be an attorney or paraprofessional’s analysis of responses to

interrogatories and requests for production of documents seeking information regarding “payments

to, or other improper influence of, witnesses.” The document quotes extensively from evidence

either already produced to Drummond or filed with the court regarding security for witnesses. The

court finds that the document is due to be produced in its entirety, without redactions, because its

provisions are “closely related to” the alleged crimes or frauds related to fraud on the court, witness

bribery, and suborning perjury. Therefore, Collingsworth’s objection to the determination that

Document CSPRIV520559 is due to be produced is OVERRULED.

Document CSPRIV520948 appears to be a memorandum from Collingsworth to his

counsel in this case regarding the “Human Rights Cases” and appears to be attorney-client

privileged or work product. However, portions of the document discuss payments for security and

witness payments. Those sections are closely related to or in furtherance of the crime of witness

bribery. Other portions of the document discuss responses to discovery requests and questions

from the court about security payments and those are closely related to the alleged fraud on the

court. Both of these portions are due to be produced under the crime-fraud exception. The

remainder of the memorandum may be redacted as work product. Therefore, Collingsworth’s

objection to the determination that portions of Document CSPRIV520948 are due to be produced

is OVERRULED.

Document CSPRIV521233 is a memorandum among Collingsworth’s legal team dated

July 2, 2012 regarding document production and would appear to attorney-client privileged.

However, portions of the document discuss the production of documents related to payments to

Colombian witnesses and families. These portions are closely related to the crime of witness

bribery. Other portions of the document discuss the disclosure of payments to witnesses and are

closely related to or in furtherance of the alleged fraud on the court. Both of these portions should

be produced under the crime-fraud exception. The remainder of the memorandum may be redacted

as work product. Therefore, Collingsworth’s objection to the determination that portions of

Document CSPRIV521233 are due to be produced is OVERRULED.

Document CSPRIV521873 is four pages in length and appears to have been prepared by

Collingsworth’s legal team discussing responses to discovery requests related to witness payments.

The Special Master reported that the first page, which pertains to production of payment-related

documents to Drummond, is closely related to the alleged crime of witness bribery and to the

alleged fraud on the court and should be produced. He recommended that the remainder of the

document should be redacted as work product. The court agrees that the first page is closely related

to witness bribery and fraud on the court and should be produced. Therefore, Collingsworth’s

objection to the determination that the first page of Document CSPRIV521873 is due to be

produced is OVERRULED.

Document CSPRIV522923 is ten pages in length and consists of an e-mail chain among

Collingsworth’s legal team during the period October 28 through November 2, 2011. Some of the

e-mails discuss payments to witness and witnesses’ security needs. The Special Master reported

that the e-mails are closely related to or in furtherance of the crime of witness bribery and should

be produced. The court agrees. Although the remainder of the document may be redacted,

Collingsworth’s objection to the determination that the portions identified by the Special Master

of Document CSPRIV522923 are due to be produced is OVERRULED.

Having reviewed the documents submitted to it by Collingsworth for in camera review, the

next question is what should occur with the documents submitted by Conrad & Scherer for in

camera review. Those documents, over which Conrad & Scherer still maintains an objection, will

be addressed in a separate order.

3. Production of Subject Documents

Because Collingsworth’s Certification of Objections (Doc. # 634) (1) is primarily based on

law that is not applicable in the Eleventh Circuit and not the law of this case, and (2) seeks to apply

an improperly narrow interpretation of the relatedness requirement of the crime-fraud exception,

his blanket objections are OVERRULED. The Special Master SHALL produce to Drummond all

documents that (1) he has reviewed and recommended be produced pursuant to the crime-fraud

exception, and (2) over which Conrad and Scherer has not re-certified an objection.

There are approximately 1,800 to 1,900 documents which the Special Master has not yet

reviewed, but over which Conrad & Scherer has withdrawn its claim of privilege. (Doc. # 641 at

18; Doc. 641-10). Conrad & Scherer has not already produced these documents because

Collingsworth has objected to the production of any documents not yet subject to a report and

recommendation by the Special Master. (Doc. # 641-9). That is, in light of Conrad & Scherer’s

withdrawal of its privilege claims over these documents, but for Collingsworth’s blanket objection

to their production, the documents would have already been produced. (Doc. # 641-10).

Drummond argues that the Special Master should also produce these 1,800 to 1,900 documents.

(Id.). At this time, the court will not order production of these documents. However, Collingsworth

SHALL revisit whether he seeks to maintain any objection to their production and, if so, state

specific objections. And, because Collingsworth’s objection is the sole hindrance to the production

of these documents, the court will set a hearing to address these documents separately.

4. Interlocutory Appeal under 28 U.S.C. § 1292(b)

Despite the fact that this court and the Special Master have applied the second prong of the

crime-fraud exception as defined by the Eleventh Circuit in this case, Collingsworth asks this court

to certify for interlocutory appeal this court’s October 2019 application of the test to four

documents. (Doc. # 634 at 22).

Appellate review is generally postponed until after the entry of final judgment.

Certification is reserved for truly exceptional cases. Judicial Watch v. Nat’l Energy Policy Dev.,

233 F.Supp.2d 16, 20 (D. D.C. 2002). “A party seeking certification pursuant to § 1292(b) must

meet a high standard to overcome the strong congressional policy against piecemeal reviews, and

against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.” Id.

(internal quotations and citation omitted). Because Section 1292(b) “is a departure from the normal

rule that only final judgments are appealable,” it “must be construed narrowly” and invoked only

in “rare circumstances.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002).

A court may certify an issue for interlocutory appeal if three requirements are met: (1) “a

controlling question of law” must be present; (2) there must be a “substantial ground for difference

of opinion” as to the controlling question; and (3) “an immediate appeal from the order may

materially advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292(b). “The

preconditions for § 1292(b) review [] are most likely to be satisfied when a privilege ruling

involves a new legal question or is of special consequence, and district courts should not hesitate

to certify an interlocutory appeal in such cases.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,

110–11 (2009). As the parties are keenly aware, the court has already certified a § 1292(b) appeal

in this case. After initially ruling on the application of the crime-fraud exception, the court granted

the Defendants’ motions and certified an interlocutory appeal. The Eleventh Circuit has given us

its answer. This court has applied the Eleventh Circuit’s ruling here. The privilege issues here do

not involve new legal questions. Rather, they involve a straight forward application of the Eleventh

Circuit’s prior ruling. See Drummond, 885 F.3d at 1339 n.13 (“To the extent that [Collingsworth]

disagrees with the district court’s application of the crime-fraud exception under the facts of this

case, it would be quibbling with the way that the district court balanced the clients’ interests in

secrecy against the need for disclosure in these particular circumstances, which would not raise a

pure issue of law appropriate for review under § 1292(b).”).

The rulings made by the court regarding four documents -- over a year ago6 -- do not

involve rare or exceptional circumstances or pure issues of law which might warrant certification

pursuant to § 1292(b). Nor would an interlocutory appeal materially advance the ultimate

termination of this litigation. Therefore, Collingsworth’s request for an interlocutory appeal under

§ 1292(b) is DENIED.

B. Drummond’s Objections

Drummond has asserted 1,426 objections to the Special Master’s Reports and

Recommendations. (Doc. # 666 at 3). Ruling on those objections would require the court to review,

in camera, those 1,426 documents, a time consuming process.

Because of the posture of this case, the court has prioritized review of the documents over

which Collingsworth and Conrad and Scherer have asserted objections. It has approached the

objections in this manner because where Collingsworth and Conrad and Scherer have objected to

the Special Master’s Reports and Recommendations, the court’s review serves to potentially

preserve appropriate privilege assertions. In contrast, in connection with Drummond’s objections

to the Special Master’s Reports and Recommendations, the issue is whether Drummond is entitled

to the production of documents that the Special Master has already recommended not be produced

because they are privileged and do not fall within the crime-fraud exception. Therefore, the court

6 “There is no time limit in the statute or in any applicable rules for seeking the district judge’s

permission to appeal under 1292(b) ... [b]ut a district judge should not grant an inexcusably dilatory

request.” Richardson Elecs., Ltd. v. Panache Broad. of Pa., Inc., 202 F.3d 957, 958 (7th Cir. 2000)

(citations omitted). “In the context of requests for interlocutory appeals, timely requests for

certification are calculated in days, not months.” Fabricant v. Sears Roebuck & Co., 2001 U.S. Dist.

LEXIS 24518 (S.D. Fla. 2001) (unjustified delay of forty-six days rendered motion untimely) citing

Richardson, 202 F.3d at 958 (two month delay rendered motion untimely) and Morton College Bd.

of Trustees v. Town of Cicero, 25 F. Supp. 2d 882, 883 (N.D. Ill. 1998) (thirty day delay rendered

motion untimely). See also Ferraro v. Sec’y of U.S. Dep’t of Health & Human Servs., 780 F.Supp.

978 (E.D.N.Y. 1992) (delay of almost two and a half months militated against the granting of

certification for interlocutory appeal).

Bell v. Sys., 2005 WL 8158592, at *1 (S.D. Ala. Feb. 10, 2005).

prioritized rulings on Defendants’ objections and has not yet concluded its review of any of

Drummond’s objections.

On March 8, 2021, in an effort to facilitate the court’s review and rulings with respect to

the Reports and Recommendations, Drummond withdrew all of its objections to the pending

Reports and recommendations that the court has not yet reviewed. (Doc. # 666 at 3).Therefore,

Drummond’s objections to the Special Master’s Report and Recommendations are OVERRULED

as withdrawn.

C. Conrad & Scherer’s Objections

The court will address Conrad & Scherer’s objections by separate order.

DONE and ORDERED this March 18, 2021.

UNITED STATES DISTRICT JUDGE

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