Drummond Brief in Common Interest Privilege Appeal

{B1962252}

No. 14-15722

IN THE

United States Court of Appeals for the Eleventh Circuit

DRUMMOND COMPANY, INC.,

Plaintiff-Appellee,

v.

TERRENCE P. COLLINGSWORTH, ET AL.,

Defendants-Appellants.

On Appeal from the United States District Court

for the Southern District of Florida

BRIEF OF APPELLEE,

DRUMMOND COMPANY, INC.

William A. Davis III H. Thomas Wells III

STARNES DAVIS FLORIE LLP 100 Brookwood Place, Floor 7

Birmingham, AL 35259 (205) 868-6000

Counsel for Drummond Company, Inc.

Case: 14-15722 Date Filed: 05/18/2015 Page: 1 of 79

{B1962252} i

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1-1, Plaintiff-Appellee certifies that,

to the best of counsels knowledge, the following persons have an interest in the

outcome of this case:

Barfield, Brett Alan (counsel for Plaintiff-Appellee)

Boies Schiller & Flexner LLP (Proposed Intervenor in District Court)

Bonner, Eric D. (counsel for Defendants-Appellants)

Brown, Benjamin D. (Cohen Milstein Sellers & Toll, PLLCcounsel for Proposed Intervenors in District Court)

Brown, T. Michael (Special Master, Northern District of Alabama)

Bruce S. Rogow, P.A. (counsel for Defendants-Appellants)

Campion, Tara A. (counsel for Defendants-Appellants)

Carlis, Adam (counsel for Defendants-Appellants)

Carrillo, Arturo (Proposed Intervenor and Counsel for Proposed Intervenors in District Court)

Chomsky, Judith Brown (Proposed Intervenor and Counsel for Proposed Intervenors in District Court)

Cohen Milstein Sellers & Toll, PLLC (Proposed Intervenor in District Court)

Clark, Jr., John W. (counsel for Defendants-Appellants)

Collingsworth, Terrence P. (Defendant-Appellant)


{B1962252} ii

Conrad & Scherer, LLP (Defendant-Appellant)

Davis, III, William A. (counsel for Plaintiff-Appellee)

Drummond Company, Inc. (Plaintiff-Appellee)

EarthRights International (Proposed Intervenor and counsel for Proposed Intervenor in District Court)

Enyard, Kendall R. (counsel for Defendants-Appellants)

Fryszman, Agnieszka M. (Cohen Milstein Sellers & Toll, PLLCcounsel for Proposed Intervenors in District Court)

Gravante, Nicholas A. Jr. (Boies, Schiller & Flexner LLPcounsel for Proposed Intervenors in District Court)

Harrison, Michelle (EarthRights Internationalcounsel for Proposed Intervenor in District Court)

Herz, Richard (EarthRights Internationalcounsel for Proposed Intervenors in District Court)

Hoffman, Paul L. (Proposed Intervenor and Counsel for Proposed Intervenors in District Court)

Holland & Knight (counsel for Plaintiff-Appellee)

Kaufman, Jonathan (EarthRights Internationalcounsel for Proposed Intervenors in District Court)

King, William B. (Searcy Denney Scarola Barnhart & Shipley, P.A.counsel for Petitioner)

Kroeger, Leslie M. (Cohen Milstein Sellers & Toll, PLLCcounsel for Proposed Intervenors in District Court)

Kropf, Sara E. (counsel for Plaintiff-Appellee)


{B1962252} iii

Kusin, Stuart V. (counsel for Defendants-Appellants)

Marion, Savannah E. (counsel for Defendants-Appellants)

McNeil, Kenneth E. (counsel for Defendants-Appellants)

Middlebrooks, Donald M. (U.S. District Judge, Southern District of Florida)

Miller, Carlyn E. (Assistant to Special Master Michael Brown, Northern District of Alabama)

Mitchell, Douglass A. (Boies, Schiller & Flexner LLPcounsel for Proposed Intervenors in District Court)

Niewoehner, Christopher S. (counsel for Defendants-Appellants)

Paulk, William T. (counsel for Defendants-Appellants)

Presley, Benjamin T. (counsel for Plaintiff-Appellee)

Proctor, Judge R. David (U.S. District Judge, Northern District of Alabama)

Putnam, Judge T. Michael (U.S. Magistrate Judge, Northern District of Alabama)

Reiter, Jonathan C. (Proposed Intervenor and Counsel for Proposed Intervenors in District Court)

Rogow, Bruce S. (counsel for Defendants-Appellants)

Rothenberg, Michael Evan (counsel for Plaintiff-Appellee)

Sansbury, Michael T. (Spotswood Sansom & Sansbury, LLCcounsel for Defendants-Appellants)

Scarola, Jack (Petitioner and Counsel for Petitioner in Case No. 14-15749)

Searcy Denney Scarola Barnhart & Shipley (Petitioner and Counsel for Petitioner in Case No. 14-15749)


{B1962252} iv

Simons, Marco (EarthRights Internationalcounsel for Proposed Intervenors in District Court)

Smith, Bradley J. (counsel for Defendants-Appellants)

Spotswood, Robert K. (counsel for Defendants-Appellants)

Spotswood Sansom & Sansbury, LLC (counsel for Defendants-Appellants)

Starnes Davis Florie LLP (counsel for Plaintiff-Appellee)

Steptoe & Johnson, LLP (counsel for Defendants-Appellants)

Susman Godfrey LLP (counsel for Defendants-Appellants)

Vahlsing, Marissa (EarthRights Internationalcounsel for Proposed Intervenors in District Court)

Wolosky, Lee S. (Boies, Schiller & Flexner LLPcounsel for Proposed Intervenors in District Court)

Wells, III, H. Thomas (counsel for Plaintiff-Appellee)

Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiff-Appellee

certifies that Drummond Company, Inc. has no parent company and no publicly

held corporation owns 10% or more of its stock.

s/ H. Thomas Wells, III H. Thomas Wells, III Starnes Davis Florie, LLP 100 Brookwood Place, Seventh Floor Birmingham, AL 35209 (205) 868-6000

Counsel for the Appellee


{B1962252} v

STATEMENT REGARDING ORAL ARGUMENT

Plaintiff-Appellee Drummond Company, Inc. (Drummond) does not

believe that oral argument is necessary in this matter, as the decision below is a

routine exercise of the district courts discretion over discovery matters.

However, should the Court believe oral argument would assist the Court in its

decision, Drummond would welcome the opportunity to present the same.


{B1962252} 1

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE

STATEMENT ................................................................................................................i

STATEMENT REGARDING ORAL ARGUMENT............................................................v

TABLE OF CONTENTS.................................................................................................1

TABLE OF AUTHORITIES............................................................................................3

JURISDICTIONAL STATEMENT .................................................................................11

STATEMENT OF THE ISSUES .....................................................................................12

STATEMENT OF THE CASE .......................................................................................13

STATEMENT OF THE STANDARD OF REVIEW ..........................................................35

SUMMARY OF THE ARGUMENT................................................................................38

ARGUMENT AND CITATIONS TO AUTHORITY .........................................................40

I. MR. COLLINGSWORTH AND CONRAD & SCHERER WAIVED ALL OF THEIR OBJECTIONS TO THE SUBPOENAS, AND THEIR APPEAL SHOULD BESUMMARILY DISMISSED WITHOUT REACHING ITS MERITS.............................40

II. THE DOCUMENTS AT ISSUE ARE NOT PROTECTED BY THE WORK PRODUCT DOCTRINE. ......................................................................................................42

III. THERE ARE THREE ADDITIONAL, INDEPENDENTLY SUFFICIENT REASONSWHY THE DISTRICT COURT SHOULD BE AFFIRMED. ......................................46

A. Mr. Scarola and Searcy Denney did not meet their burden of demonstrating that the documents sought are protected as work product.................................................................................................47

B. Mr. Scarola, Searcy Denney, Mr. Collingsworth and Conrad & Scherer voluntarily disclosed alleged work product to Paul Wolf, who


{B1962252} 2

never agreed to and in fact did not keep such information confidential. .........................................................................................54

C. Mr. Scarola, Searcy Denney, and the Defendants placed the documents and communications in their possession related to witness payments at issue, thereby waiving work product protection.............59

IV. MR. SCAROLA AND SEARCY DENNEYS UNDUE BURDEN ARGUMENTSHOULD BE REJECTED. ...................................................................................65

V. MR. SCAROLA AND SEARCY DENNEYS PETITION FOR WRIT OF MANDAMUS SHOULD BE DENIED FOR THE REASONS ALREADY DISCUSSED. ..68

CONCLUSION............................................................................................................69

CERTIFICATE OF COMPLIANCE...............................................................................72

CERTIFICATE OF SERVICE.......................................................................................73


{B1962252} 3

TABLE OF AUTHORITIES

Case Page(s)

Access Now, Inc. v. Sw. Airlines Co.,385 F.3d 1324 (11th Cir. 2004) .......................................................34, 46, 50*

Adriana M. Castro, M.D., P.A. v. Sanofi Pasteur Inc.,No. 13 C 2086, 2013 WL 3771493 (N.D. Ill. July 18, 2013) .......................45

AF Holdings, LLC v. Does 1-162,No. 11-23036-Civ, 2012 WL 488217 (S.D. Fla. Feb. 14, 2012) ..................65

Am. United Life Ins. Co. v. Martinez,480 F.3d 1043 (11th Cir. 2007) .....................................................................46

Ariel v. Jones,693 F.2d 1058 (11th Cir. 1982) .....................................................................35

Arkwright Mut. Ins. Co. v. Natl Union Fire Ins. Co. of Pittsburgh, Pa.,19 F.3d 1432 (6th Cir. 1994) (unpublished table opinion)............................46

Avery Dennison Corp. v. Four Pillars,190 F.R.D. 1 (D.D.C. 1999) ..........................................................................52

Baloco v. Drummond Company, Inc.,767 F.3d 1229 (11th Cir. 2014) .....................................................................21

Bank of Am., N.A. v. Terra Nova Ins. Co.,212 F.R.D. 166 (S.D.N.Y. 2002)...................................................................58

Barclaysamerican Corp. v. Kane,746 F.2d 653 (10th Cir. 1984) .......................................................................47

Bozeman v. Chartis Cas. Co.,No. 2:10-cv-102-FtM-362PC, 2010 WL 4386826 (M.D. Fla. Oct. 29, 2010) ..............................................................................45


{B1962252} 4

Cardona v. Chiquita Brands Int'l, Inc.,760 F.3d 1185 (11th Cir. 2014) cert. denied, No. 14-777, 2015 WL 1757186 (U.S. Apr. 20, 2015) and cert. denied sub nom. Does 1-144 v. Chiquita Brands Int'l, Inc., No. 14-1011, 2015 WL 1757187 (U.S. Apr. 20, 2015) ...18

Carnes v. Crete Carrier Corp.,244 F.R.D. 694 (N.D. Ga. 2007) .............................................................52, 53

Carpenter v. Mohawk Indus., Inc.,541 F.3d 1048 (11th Cir. 2008) aff'd, 558 U.S. 100, 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009) ..........................................................................................12

Castle v. Sangamo Weston, Inc.,744 F.2d 1464 (11th Cir. 1984) .....................................................................36

Ceres Marine Terminals, Inc. v. Director, Office of Workers Compensation Programs,

512 F. Appx 1014 (11th Cir. 2013)..............................................................61

Cheney v. U.S. Dist. Ct. for the Dist. of Columbia,542 U.S. 367, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) ...............................37

Chevron Corp. v. Donziger,No. 11-civ-0691(LAK), 2013 WL 1087236 (S.D.N.Y. Mar. 15, 2013) .......67

Chevron Corp. v. Donziger,296 F.R.D. 168 (S.D.N.Y. 2013), reconsideration denied, No. 11 CIV. 0691 LAK, 2014 WL 2608852 (S.D.N.Y. Mar. 4, 2014) ......................................56

Cox v. Administrator U.S. Steel & Carnegie,17 F.3d 1386 (11th Cir. 1994) ...........................................................43, 61, 63

Doe, et al. v. Drummond Company, Inc., et al.,782 F.3d 576 (11th Cir. 2015) .................................................................22, 50

Doe v. Princess Cruise Lines, Ltd.,657 F.3d 1204 (11th Cir. 2011) ...................................................................65*

Ecuadorian Plaintiffs v. Chevron Corp.,619 F.3d 373 (5th Cir. 2010) .........................................................................58


{B1962252} 5

Farnsworth v. Procter & Gamble Co.,

758 F.2d 1545 (11th Cir. 1985) .....................................................................35

FTC v. Grolier Inc.,

462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983) ...........................44, 45*

Garner Family Enterprises, Inc.,No. 1:11-CV-01300-SEB, 2012 WL 364088 (S.D. Ind. Feb. 1, 2012).........42

Hickman v. Taylor,329 U.S. 495, 67 S.Ct. 385 (1947) ..............................................36, 42, 45, 65

Holifield v. United States,909 F.2d 201 (7th Cir. 1990) .........................................................................49

In re Clemente,17 F. Appx 968 (Fed. Cir. 2001) ..................................................................51

In re Grand Jury Proceedings,219 F.3d 175 (2d Cir. 2000) ....................................................................61, 63

In re Grand Jury Subpoena,831 F.2d 225 (11th Cir. 1987) .................................................................48, 52

In re Grand Jury Subpoena,274 F.3d 563 (1st Cir. 2001)..........................................................................51

In re Grand Jury Subpoena (Mr. S.),662 F.3d 65 (1st Cir. 2011)............................................................................48

In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129,902 F.2d 244 (4th Cir. 1990) .........................................................................55

In re Loudermilch,158 F.3d 1143 (11th Cir. 1998) ...............................................................68, 69

In re Martin Marietta Corp.,856 F.2d 619 (4th Cir. 1988) ...................................................................63, 64


{B1962252} 6

In re Steinhardt Partners, L.P.,9 F.3d 230 (2d Cir. 1993) ..............................................................................37

In re Wellcare Health Plans, Inc.,754 F.3d 1234 (11th Cir. 2014) .....................................................................37

J. H. Rutter Rex Mfg. Co. v. N. L. R. B.,473 F.2d 223 (5th Cir. 1973) .........................................................................35

Johnston v. Dillard Dept. Stores, Inc.,152 F.R.D. 89 (E.D. La. 1993) ......................................................................61

JTR Enterprises, LLC v. An Unknown Quantity of Colombian Emeralds, Amethysts & Quartz Crystals,

297 F.R.D. 522 (S.D. Fla. 2013)....................................................................61

Lago Agrio Plaintiffs v. Chevron Corp.,409 F. Appx 393 (2d Cir. 2010) ...................................................................35

Lucas v. W.W. Grainger, Inc.,257 F.3d 1249 (11th Cir. 2001) ...............................................................46, 47

Minebea Co. v. Papst,228 F.R.D. 13 (D.D.C. 2005) ........................................................................57

Mohawk Indus., Inc. v. Carpenter,558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) .................................12

Moore v. Armour Pharm. Co.,927 F.2d 1194 (11th Cir. 1991) .....................................................................35

Nixon v. Warner Comms., Inc.,435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) ...................................14

Ott v. City of Milwaukee,682 F.3d 552 (7th Cir. 2012) ...................................................................12, 40

Parke v. Glover,No. 09-0327-WS-C, 2010 WL 370329 (S.D. Ala. Jan. 26, 2010) ................42


{B1962252} 7

Pruco Life Ins. Co. v. Brasner,No. 10-80804-CIV, 2012 WL 3001570 (S.D. Fla. June 28, 2012) report and recommendation adopted, No. 10-80804-CIV, 2012 WL 3000235 (S.D. Fla. July 23, 2012) ................................................................................................58

QBE Ins. Corp. v. Jorda Enterprises, Inc.,286 F.R.D. 661 (S.D. Fla. 2012)..............................................................61, 63

Regency of Palm Beach, Inc. v. QBE Ins. Corp.,259 F.R.D. 645 (S.D. Fla. 2009)..............................................................53, 54

Republic of Ecuador v. Hinchee,741 F.3d 1185 (11th Cir. 2013) .....................................................................47

Romero v. Drummond Co., 480 F.3d 1234 (11th Cir. 2007) .....................................................................14

R.S.B. Ventures, Inc. v. F.D.I.C.,514 F. Appx 853 (11th Cir. 2013)................................................................25

S.E.C. v. Microtune, Inc.,258 F.R.D. 310 (N.D. Tex. 2009)..................................................................44

SEC v. Natl Student Marketing Corp.,No. 225-72, 1974 WL 415 (D.D.C. June 25, 1974) ......................................62

Sec. & Exch. Commn v. Dresser Indus., Inc.,453 F. Supp. 573 (D.D.C. 1978) affd, 628 F.2d 1368 (D.C. Cir. 1980) ......67

Schweizer v. Mulvehill,93 F. Supp. 2d 376 (S.D.N.Y. 2000) .............................................................42

Sheet Metal Workers Intern. Assn v. Sweeney,29 F.3d 120 (4th Cir. 1994) ...........................................................................36

Stern v. OQuinn,253 F.R.D. 663 (S.D. Fla. 2008)....................................................................58

Tambourine Comercio Internacional SA v. Solowsky,312 F. Appx 263 (11th Cir. 2009)...................................................... passim*


{B1962252} 8

U.S. v. Berrigan,482 F.2d 171 (3d Cir. 1973) ..........................................................................35

U.S. v. Construction Products Research, Inc.,73 F.3d 464 (2d Cir. 1996) ............................................................................51

U.S. v. Verrusio,762 F.3d 1 (D.C. Cir. 2014)...........................................................................36

United Kingdom v. United States,238 F.3d 1312 (11th Cir. 2001) .....................................................................36

United States v. Am. Tel. and Tel. Co.,642 F.2d 1285 (D.C. Cir. 1980).....................................................................58

United States v. BDO Seidman, LLP,492 F.3d 806 (7th Cir. 2007) .........................................................................55

United States v. Davis,636 F.2d 1028 (5th Cir. 1981) ...............................................................48, 52*

United States v. El Paso Co.,682 F.2d 530 (5th Cir. 1982) .........................................................................48

United States v. Gumbaytay,276 F.R.D. 671 (M.D. Ala. 2011)..................................................................55

United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) .................................61*

United States v. Reyes-Vasquez,905 F.2d 1497 (11th Cir. 1990) .....................................................................43

United States v. Riggs,967 F.2d 561 (11th Cir. 1992) .......................................................................43

United States v. Rockwell Int'l,897 F.2d 1255 (3d Cir. 1990) ........................................................................48


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United States v. Ross,131 F.3d 970 (11th Cir.1997) ........................................................................65

United States v. Zinn,321 F.3d 1084 (11th Cir. 2003) .....................................................................43

Universal City Dev. Partners, Ltd. v. Ride & Show Engg, Inc.,230 F.R.D. 688 (M.D. Fla. 2005) ..................................................................41

Univ. of Pennsylvania v. EEOC,493 U.S. 182, 110 S.Ct. 577 (1990) ..............................................................55

Uzzell v. Teletech Holdings, Inc.,No. C07-0232 MJP, 2007 WL 4358315 (W.D. Wash. Dec. 7, 2007)...........41

Statute or Rule Page(s)

11th Cir. R. 36-2 ......................................................................................................44

Fed. R. App. P. 28(a)(5)...........................................................................................50

Fed. R. Civ. P. 26 ............................................................................................. passim

Fed. R. Civ. P. 45 ............................................................................................. passim

Southern District of Florida Local Rule 26.1(g)......................................................49

Other Authorities Page(s)

2 Stephen A. Saltzburg, et al., Federal Rules Of Evidence Manual(8th ed.2002) ............................................................................................................57

8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 2024 (1970) ........................................................................................................44, 46

8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 2024 (3d ed. 2010) ...................................................................................................59

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2026 (Supp. 1994).............................................................................................................64


{B1962252} 10

Fed. R. Civ. P. 45, 1991 Amendments, advisory committee notes .........................51

Fed. R. Civ. P. 45, 2013 Amendments, advisory committee notes .........................41

http://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf .....................................................................................................................25

http://www.dane.gov.co/files/noticias/MESEP_2009.pdf.......................................25


{B1962252} 11

JURISDICTIONAL STATEMENT

Appellee Drummond Company, Inc. (Drummond) disagrees with the

jurisdictional statements in the Appellants initial appellate briefs. The question of

whether this Court possesses subject matter jurisdiction over the appeals filed by

Jack Scarola (Mr. Scarola), Searcy Denney Scarola Barnhart & Shipley, P.A.

(Searcy Denney), Terrence P. Collingsworth (Mr. Collingsworth) and Conrad

& Scherer, LLP (Conrad & Scherer), as well as the petition for writ of

mandamus filed by Mr. Scarola and Searcy Denney, has already been briefed by

the parties in response to this Courts January 26, 2015 jurisdictional questions.1

Drummond hereby adopts and reasserts the arguments in its brief regarding the

jurisdictional questions raised by this Court.

Briefly restated, there is no jurisdiction over Mr. Collingsworth and Conrad

& Scherers appeal. Both the Perlman doctrine and the collateral order doctrine

depend upon the lack of an effective appellate remedy, and the United States

Supreme Court holds Mr. Collingsworth and Conrad & Scherer, as parties, have

such a remedy through post-judgment appeal. The Perlman doctrine also provides

no jurisdiction over Mr. Scarola and Searcy Denneys appeal, as it only applies

where an appellant has no control over the production of allegedly privileged

1 On March 26, 2015, this Court entered an order providing that [t]he jurisdictional question(s) earlier raised will be carried with the case.


{B1962252} 12

materials by a disinterested third party. Here, Mr. Scarola and Searcy Denney are

the third-parties in possession of the documents, and therefore control whether they

are produced. Jurisdiction may be proper under the collateral order doctrine as to

Mr. Scarola and Searcy Denneys appeal, but at least one Circuit has held that even

nonparties are foreclosed by Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100

(2009), from utilizing the doctrine to immediately appeal a privilege ruling. Ott v.

City of Milwaukee, 682 F.3d 552, 553, 555 (7th Cir. 2012).

Indeed, [t]his Court has never exercised jurisdiction under the collateral

order doctrine to review any discovery order involving any privilege. Carpenter

v. Mohawk Indus., Inc., 541 F.3d 1048, 1053 (11th Cir. 2008) aff'd, 558 U.S. 100,

130 S. Ct. 599, 175 L. Ed. 2d 458 (2009). Rather, mandamus has been held to be

the appropriate avenue of review because it places an extremely difficult burden on

the challenging party, which strikes an appropriate balance between the concerns

of furthering the important policies of full and frank communication sought to be

furthered by the privilege and the concerns of judicial efficiency. Id. at 1054.

STATEMENT OF THE ISSUES

1. Did the district court correctly hold that Mr. Scarola and Searcy

Denney failed to carry their burden of demonstrating that the documents

responsive to Drummonds third party subpoenas were protected by the work

product doctrine?


{B1962252} 13

2. Was the district court correct in declining to address Mr. Scarola and

Searcy Denneys undue burden objection where the parties below expressly agreed

and requested that the district court not address this issue?

3. Did the district court engage in a judicial usurpation of power or clear

abuse of discretion sufficient to warrant the drastic and extraordinary remedy of a

writ of mandamus?

STATEMENT OF THE CASE

Course of Proceedings and Disposition in the District Court

This appeal arises out of a miscellaneous proceeding associated with

subpoenas issued in a defamation case filed by Drummond against Mr.

Collingsworth and Conrad & Scherer (hereinafter sometimes referred to as

Defendants) in the Northern District of Alabama. Defendants claim that their

defamatory statements are based on the testimony of certain Colombian prisoners.

Substantial evidence has surfaced, however, that Defendants paid hundreds of

thousands of dollars to these incarcerated witnesses, their criminal lawyers, and

their families. On September 5, 2014, Drummond served Mr. Scarola and Searcy

Denney with the subpoenas made the basis of this appeal, which principally seek

documents relating to payments to witnesses and Colombian paramilitaries. Doc. 1

at 3; Docs. 1-2 & 1-3. Despite receiving notice of the subpoenas, Mr.


{B1962252} 14

Collingsworth and Conrad & Scherer did not object to the subpoenas or move to

quash them.

On September 19, 2014, Mr. Scarola and Searcy Denney filed a joint motion

to quash the subpoenas and for a protective order, and seeking sanctions against

Drummond. Doc. 1. Drummond filed its initial brief in opposition on October 3,

2014. Doc. 7. Included in Drummonds opposition were several exhibits that

Drummond sought leave to file under seal to comply with its obligations under a

protective order in the underlying defamation case. Doc. 8. On October 10, 2014,

the district court denied Drummonds motion for leave to file these documents

under seal, noting that the public has a right to inspect and copy public records

and documents, including judicial records and documents. Doc. 11 at 2 (quoting

Nixon v. Warner Comms., Inc., 435 U.S. 589, 597 (1978)). The district court also

quoted this Courts instruction that [t]he operation of the courts and the judicial

conduct of judges are matters of utmost public concern and the common-law right

of access to judicial proceedings, an essential component of our system of justice,

is instrumental in securing the integrity of the process. Id. (quoting Romero v.

Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007)).

Following this Order, Drummond conferred with counsel for Mr.

Collingsworth and Conrad & Scherer, as well as the Special Master overseeing

discovery in the underlying defamation case, to ensure that it honored its


{B1962252} 15

obligations under the protective order in the defamation case while at the same

time complying with Judge Middlebrooks October 10th order. Drummond re-filed

its Opposition to Mr. Scarola and Searcy Denneys motion to quash on October 24,

2014. Doc. 17.2

On November 3, 2014, Mr. Scarola and Searcy Denney filed their reply brief

in support of their motion to quash. Doc. 23. On November 20, 2014, the district

court denied Mr. Scarola and Searcy Denneys motion to quash and held that the

movants had failed to demonstrate that the documents sought by Drummonds

subpoenas were protected by the work product doctrine. Doc. 24 at 5-6. The

district court declined to address Mr. Scarola and Searcy Denneys undue burden

objection, noting the parties express agreement in briefing that they would work

together to reduce any purported burden imposed by the subpoenas and their joint

request that any ruling on this objection be deferred. Id. at 6-7. Finally, the district

court denied Mr. Scarola and Searcy Denneys request that Drummond be

sanctioned for issuing the subpoenas, finding that the subpoenas are not

2 On October 27, 2014, Mr. Scarola and Searcy Denney filed an Emergency Supplemental Motion to Seal documents associated with Drummonds October 24th opposition brief, claiming that the exhibits to Drummonds opposition brief which Drummond obtained through its third party discovery efforts in the defamation action contained privileged and confidential information. Doc. 19 at 2. On October 28, 2014, the district court denied that motion, holding that Mr. Scarola and Searcy Denney have not demonstrated that the documents they seek to seal contain privileged information or attorney work product. Doc. 22 at 2. Mr. Scarola and Searcy Denney have not appealed that October 28th order.


{B1962252} 16

overbroad and that [g]iven the relevancy of the requests, the Court does not find

any basis for the imposition of sanctions. Id. at 7.

On December 22, 2014, Mr. Scarola and Searcy Denney filed a notice of

appeal. Doc. 28. On December 23, 2014, they filed a petition for writ of

mandamus in this Court. This Court has since consolidated those appellate

proceedings.

Following the district courts denial of Mr. Scarola and Searcy Denneys

motion to quash, there was a series of filings by parties who were acutely aware of

the miscellaneous proceedings, but, after choosing not to participate in those

proceedings, were dissatisfied with the outcome. On December 19, 2014, four

weeks after the district court denied Mr. Scarola and Searcy Denneys motion to

quash, Defendants filed their own motion to quash the subpoenas in the Southern

District of Florida, resulting in another miscellaneous proceeding. Drummond

Company, Inc. v. Terrence P. Collingsworth, et al., 9:14-mc-81578-KAM (S.D.

Fla.).3 And on December 22, 2014, Defendants filed their own notice of appeal of

Judge Middlebrooks Order denying Mr. Scarola and Searcy Denneys motion to

quash. Doc. 27. Importantly, prior to December 19th, neither Mr. Collingsworth

3 This case was assigned to United States District Court Judge Kenneth A. Marra. That proceeding has since been stayed pending the outcome of this appeal, and was administratively closed by Judge Marra on January 13, 2015. See Drummond Company, Inc. v. Terrence P. Collingsworth, et al., 9:14-mc-81578-KAM (S.D. Fla.) at Docs. 4 & 5.


{B1962252} 17

nor Conrad & Scherer raised any objection to Drummonds subpoenas, nor did

they file a motion to quash or seek to intervene in the miscellaneous proceeding

instigated by Mr. Scarola and Searcy Denney, despite Defendants undisputed

awareness of both the subpoenas and the miscellaneous proceeding.

Also on December 19, 2014, several other non-party lawyers and law firms

(the putative intervenors) filed a motion to intervene in the miscellaneous

proceedings initiated by Mr. Scarola and Searcy Denney. Doc. 25. Again, prior to

December 19th, none of these putative intervenors moved to intervene in the

miscellaneous proceedings giving rise to this appeal, despite their clear awareness

of those proceedings.4 Drummond filed an opposition to that motion to intervene

on January 5, 2015. Doc. 36. On January 7, 2015, the district court denied as

moot the putative intervenors motion, holding that it lacked jurisdiction in light of

the instant appeal. Doc. 37. The putative intervenors are not parties to this

appeal.5

4 Indeed, one of these putative intervenors, Marco Simons, submitted an affidavit in support of Mr. Scarola and Searcy Denneys reply brief dated October 31, 2014. Doc. 23-2.5 The putative intervenors have recently filed a notice of appeal regarding the district courts denial of their motion for an indicative ruling. That appeal has been docketed by this Court and bears Appeal No. 15-11956-F.


{B1962252} 18

Statement of the Facts

Introductory Summary

Drummond is an Alabama-based coal company whose subsidiary operates a

coal mine in Colombia, South America. Mr. Collingsworth is an attorney who has

filed numerous unsuccessful lawsuits against Drummond under the Alien Tort

Statute (ATS), alleging that Drummond collaborated with an illegal group of

paramilitaries in Colombia: the Autodefensas Unidas de Colombia or AUC.

The AUC was a paramilitary organization in Colombia that for several years was

locked in a civil conflict with left-wing guerillas.

Mr. Scarola and his firm, Searcy Denney, are co-counsel with Mr.

Collingsworth and Conrad & Scherer in a similar ATS case against Chiquita

Brands International (the Chiquita MDL), alleging Chiquitas collaboration with

the same Colombian paramilitaries. Doc. 17 at 1.6

Between January and September 2011, Mr. Collingsworth sent a series of

defamatory letters to Drummonds customers and business partners stating as

objective facts that Drummond was complicit with Colombian paramilitaries in

6 All federal claims in that case were dismissed, and that dismissal was affirmed by this Court. Cardona v. Chiquita Brands Int'l, Inc., 760 F.3d 1185 (11th Cir. 2014) cert. denied, No. 14-777, 2015 WL 1757186 (U.S. Apr. 20, 2015) and cert. denied sub nom. Does 1-144 v. Chiquita Brands Int'l, Inc., No. 14-1011, 2015 WL 1757187 (U.S. Apr. 20, 2015). The United States Supreme Court denied the Chiquita MDL plaintiffs petition for writ of certiorari on April 20, 2015. Id.


{B1962252} 19

the commission of scores of murders in Colombia. Doc. 1-1 at 13-32. In

defense of the resulting defamation suit, Mr. Collingsworth claims he relied upon

the testimony of imprisoned Colombian paramilitaries for the truth of these

scurrilous accusations. Drummond has discovered that Mr. Collingsworth and

Conrad & Scherer provided illicit benefits, in a variety of ways, to these witnesses.

At present, it is undisputed that Mr. Collingsworth paid well over $100,000 to

witnesses who testified against Drummond in the ATS cases. Mr. Collingsworth

also promised a substantial contingency fee in the ATS cases to the Colombian

criminal attorney for several paramilitaries who subsequently provided favorable

testimony to Mr. Collingsworth. Doc. 17-1 at 30 & 31; see also Docs. 17-41,

17-42, 17-43, 17-44 & 17-45.

There is also documentary proof that Mr. Collingsworth discussed the

nature, extent and purported purpose of these payments with Mr. Scarola, as well

as the propriety of paying paramilitary witnesses criminal lawyers. Doc. 17-33.

Drummonds subpoenas are directly targeted at discovering this and other evidence

relating to payments to, or other improper influence of, Colombian paramilitary

witnesses. This evidence will show Mr. Collingsworth either knew, or recklessly

disregarded, that his letters were false because they were based on witness

testimony that was unreliable at best, paid for at worst.


{B1962252} 20

Background of the Defamation Litigation

Beginning in January 2011, Mr. Collingsworth sent and published three

defamatory letters, two to the government of The Netherlands7 and one to Itochu

Corporation, a Drummond business partner. The letters, written on Conrad &

Scherer letterhead, stated, among other falsehoods, that hundreds of Colombian

citizens . . . had a family member murdered by paramilitary forces acting on behalf

of Drummond. Doc. 1-1 at 14(a). One of the letters stated that [l]ike many of

the companies operating in Colombia during the civil conflict, Drummond joined

forces with the AUC, a terrorist organization. Id. at 27.

In essence, Mr. Collingsworth told Drummonds customers and business

partners that Drummond was a murderer that collaborated with a paramilitary

terrorist organization, and urged the recipients of the letters to sever all business

ties with Drummond. Id. Mr. Collingsworth and Conrad & Scherer do not deny

that Mr. Collingsworth sent the letters. The primary issue in the defamation case is

whether they knew or recklessly disregarded that their defamatory letters were

false.

7 The Netherlands government influences or controls the coal Netherlands-based utilities purchase.


{B1962252} 21

Related Alien Tort Statute Litigation

Mr. Collingsworth has filed four8 separate lawsuits against Drummond

under the ATS, beginning in 2002. In those lawsuits, Mr. Collingsworth accused

Drummond of aiding and abetting paramilitaries in killing Colombian citizens who

either worked at Drummonds coal mine or lived along the railroad that carries

coal from its mine to port for shipment overseas.

None of Mr. Collingsworths ATS cases against Drummond have met any

success. In the first case, after certain claims and defendants were dismissed on

summary judgment, a jury in 2007 conclusively found in favor of the remaining

defendants on all claims. Romero v. Drummond Company, Inc., No. 7:02-cv-0575-

KOB (N.D. Ala.). This Court affirmed that judgment on appeal. Romero v.

Drummond Company, Inc., 552 F.3d 1303 (11th Cir. 2008). In the second case,

filed in 2009, the district court dismissed Mr. Collingsworths claims against

Drummond and its executives, and that dismissal was recently affirmed by this

Court. Baloco v. Drummond Company, Inc., 767 F.3d 1229 (11th Cir. 2014). The

third case, also filed in 2009, resulted in a complete summary judgment in favor of

Drummond and its executives. Balcero v. Drummond Company, Inc., No. 2:09-cv-

01041-RDP (N.D. Ala.) (Balcero). This Court also recently affirmed this

8 The actual number is eight, but the first five cases were all consolidated under the case file Romero v. Drummond Company, Inc., No. 7:03-cv-0575-KOB (N.D. Ala.).


{B1962252} 22

dismissal. Doe, et al. v. Drummond Company, Inc., et al., 782 F.3d 576 (11th Cir.

2015). The last case, filed in 2013, is awaiting a ruling on Drummonds motion to

dismiss, and has been stayed pending the resolution of related appeals. Melo v.

Drummond Company, Inc., No. 2:13-cv-00393-RDP (N.D. Ala.).

Alleged Basis for Mr. Collingsworths Defamatory Letters

Mr. Collingsworth and Conrad & Scherer claim that they did not act with

reckless disregard of the truth when they wrote the defamatory letters because they

relied on evidence gathered during Mr. Collingsworths 13-year litigation

against Drummond. It is therefore important for purposes of this appeal to

understand what evidence Mr. Collingsworth actually has. In those cases,

despite extensive discovery of Drummonds records, Mr. Collingsworth has not a

single document showing that Drummond paid paramilitaries in Colombia.

Despite taking the deposition of numerous current and former Drummond

executives and employees, Mr. Collingsworth has not a single statement from these

witnesses that Drummond paid paramilitaries in Colombia. To the contrary, every

deponent unequivocally denied that Drummond collaborated with or paid

paramilitaries and testified that Drummond had an absolute policy against doing

so. Doc. 17-1 at 5.

The only evidence Mr. Collingsworth has is the testimony of imprisoned

Colombian paramilitary members or collaborators. These witnesses claimed they


{B1962252} 23

had knowledge that Drummond collaborated with paramilitaries. This is the sole

evidence purportedly supporting the truth of Defendants defamatory letters.

Whether Defendants have a reasonable belief in the truthfulness of those prisoners

testimony is at the heart of this case.

Evidence that Defendants Paid Colombian Witnesses

After the close of discovery in the Balcero litigation, Mr. Collingsworth

produced documents showing that he and his litigation team paid over $90,000 to

four Colombian paramilitary witnesses or their families. Mr. Collingsworth admits

making these payments, but now characterizes them as funds for security or

security funds. Doc. 17-2 (Collingsworth Decl.) 34 & 35.9

Although Mr. Collingsworth claims these payments were for security, he

9 While Mr. Collingsworth and Conrad & Scherer do not deny these

payments now, they misrepresented their existence in Balcero even after the court ordered disclosure of any payments to paramilitaries. That order, entered March 6, 2012, required Mr. Collingsworth to disclose anything of value offered or given by Plaintiffs to any witness identified in Rule 26 disclosures or any Colombian paramilitary. Doc. 17-3 (Balcero Doc. 332) at 6-7. Yet on May 16, 2012, Mr. Collingsworth signed a response to an interrogatory seeking this very information and stated that he had provided Duarte with hamburgers and other food on several occasionspaid to relocate Plaintiff Claudia Balcero and her familypurchased lunch for witnesses during depositions[and] arranged for a temporary safe house andtransportation [for Rafael Garcia]. Doc. 17-4 at No. 4. As of the date Mr. Collingsworth signed this response, he had already paid approximately $50,000 to paramilitary Halcon, at least $5,000 to paramilitary Libardo Duarte, $2,084 to paramilitary Jose del Carmen Gelvez Albarracin (alias El Canoso), and had been making monthly payments to paramilitary Jairo de Jesus Charris for nearly three years. Docs. 17-5, 17-6, 17-13, 17-15, 17-16, 17-19, 17-20, & 17-28.


{B1962252} 24

has not produced any documents to that effect, such as invoices from security

companies to the witnesses showing the provision of protection services, contracts

between the witnesses and any security company, or even emails with the

witnesses outlining what protection will be provided. He also never disclosed to

the Court in Balcero that he was making such security payments, nor did he seek

guidance or approval from any Bar Association or other authority. Moreover,

there are no police reports or other complaints or requests to Colombian authorities

regarding the need for security assistance. The only evidence that these

payments were actually intended or used for security is self-serving statements by

Mr. Collingsworth.

Thus far, Drummond has uncovered evidence showing payments were made

to five paramilitaries totaling well over $100,000.10 Four have provided testimony

against Drummond in the ATS cases, while the other has been identified by Mr.

Collingsworth and Conrad & Scherer as a potential witness with relevant

knowledge of their allegations against Drummond.

Jairo de Jesus Charris Castro. First is Jairo de Jesus Charris Castro

(Charris), who has been incarcerated in Colombia since 2008. Charris provided

10 Discovery conducted since completion of the briefing below has revealed the total amount of money paid, as well as the number of witnesses who were paid, far exceeds what is reflected either in this Brief or in the briefing below. But because that evidence is not in the appellate record, Drummond limits its argument to the record as it existed during the proceedings below.


{B1962252} 25

a declaration in September 2009 in the Balcero litigation. He also provided

testimony in Colombia through the letter rogatory process, which was video-taped

for use at trial.

After Charris provided his trial testimony in the Balcero litigation, and after

the discovery period in Balcero had closed, Mr. Collingsworth produced

documents showing that he and his team had been paying Charris and his family a

1,500,000 peso monthly allowance since July 2009two months prior to his

signing a declaration for Mr. Collingsworth. Doc. 17-1 at 7 and Doc. 17-5. The

payments have continued from July 2009 through at least September 2013, totaling

74,681,950 pesoswhich equals approximately $39,162.01. Doc. 17-6.11

11 Defendants payments to Colombian witnesses must be viewed against the backdrop of the economic realities in Colombia. Ten dollars for someone in the United States is not the same as ten dollars for someone in Colombia, and is certainly not the same to the incarcerated witnesses at issue here, many of whom have little to no financial means. According to statistics compiled by DANE, Colombias statistics agency, in 2009 almost half of Colombias population lived below the poverty line, which is defined as earning less than $143 per month. The average Colombian household in 2009 earned $287 (or 560,309 Colombian pesos) per month. Available at http://www.dane.gov.co/files/noticias/MESEP_2009.pdf.See R.S.B. Ventures, Inc. v. F.D.I.C., 514 F. Appx 853, 856 n.2 (11th Cir. 2013) (court may take judicial notice of information found on a government website). In the United States, by contrast, the average household income for 2009 according to the U.S. Census Bureau was $6,152 per month. Available athttp://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf. So, when Defendants promised to pay Charriss family 1,500,000 Colombian pesos per month, it was the promise of a salary approximately 2.68 times that of the average household in Colombia. Offering the same deal to a witness in the United States would roughly equate to a tax-free salary of $16,487.36 per month (or almost $200,000 per year).


{B1962252} 26

The payments to Charris have been facilitated by Ricardo Garzon and

Yineth Baeza. Doc. 17-1 at 9 & 10. Garzon is a field attorney for Conrad &

Scherer and International Rights Advocates (IRA).12 Id. at 11 and Doc. 17-7.

Baeza works with Francisco Ramirez who is a collaborating attorney for IRA,

Doc. 17-1 at 10 and Doc. 17-8, and is local counsel for Mr. Collingsworth.

Doc. 17-2 (Collingsworth Decl.) 51. All but one of the payments were made

directly to Charris wife, Claudia Elena Pinzon. Doc. 17-1 at 9; Doc. 17-5; Doc.

17-9 (Charris Dep. at 9:19-20).

The documents showing payments to Charris do not mention security but

rather appear to be a monthly allowance for unspecified uses. For example, in

April 2010, Charris sent an email to Baeza requesting additional money. Doc. 17-

1 at 12 and Doc. 17-10 (Charris email). In the email, he states that his 82-year-

old mother-in-law lives in Barranquilla, Colombia, that his wifes current landlord

was evicting them, and that there was a possibility that he would be transferred to a

12 In addition to being a partner at Conrad & Scherer, Mr. Collingsworth is also the Executive Director and General Counsel of IRA. According to its website, IRA is an entity focused on litigation against US corporations for human rights violations committed abroad, principally under the Alien Tort Statute (ATS). Doc. 17-11. The IRA website lists four collaborating attorneys who work with IRA: Alfred Brownell, Paul Hoffman, Francisco Ramrez Cuellar and David Garces. Id. The IRA website also lists a current six-member team: Terry Collingsworth, Christian Levesque, Eric Hager, Charity Ryerson, Lorraine Leete and Cassandra Webster. Id.


{B1962252} 27

prison in Barranquilla. Id. Charris requested that the monthly allowance be sent

early and that Baezas group pay for the costs of his familys move to Barranquilla.

Id. Baeza responded with a statement from Francisco Ramirez to Charris to the

effect that if Charris transferred prisons, the costs of his familys move would be

covered, that the 1,500,000 pesos per month would continue to be paid, and that an

unspecified business proposal submitted by Charris wife to Ramirez was rejected

as excessive. Doc. 17-8.

Libardo Duarte. The second group of payments were to Libardo Duarte

a/k/a Bam Bam. Duarte is in prison for crimes he committed while a Colombian

paramilitary. Duarte provided Mr. Collingsworth a declaration on February 27,

2011, in the Balcero litigation. It is currently unknown when the agreement was

made for Duarte to receive payments, but on April 15, 2011, Duarte emailed

Lorraine Leete, who works for IRA, providing her with the names and account

information for Katerin Durango Avendao and Leydi Johana Perez Valencia

people Mr. Collingsworth states are family members of Duarte. Doc. 17-1 at 14;

Doc. 17-12; Doc. 17-2 (Collingsworth Decl.) 42.

On April 18, 2011, a wire transfer was made to Leydi Johana Perez Valencia

from Conrad & Scherer in the amount of $2,500. Doc. 17-13. On April 20, 2011,

Duarte emailed Leete complaining that the money had not arrived and saying, I

dont like this. Doc. 17-14. Duarte sent a series of additional emails that day


{B1962252} 28

inquiring as to the payments. Id. On April 29, 2011, a wire transfer was made to

Katerin Durango Avendao from the account of Conrad & Scherer in the amount

of $2,500. Doc. 17-15. A heavily redacted bank statement from Conrad &

Scherers Operating Account reflects an additional $5,000 wire transfer to

Avendao on April 18, 2011. Doc. 17-16. Accordingly, the evidence discovered

to date suggests Duarte was paid at least $10,000.

Halcon. The third group of payments were to an AUC member known

only to Drummond as Halcon. Halcon was identified by Mr. Collingsworth as

a witness with relevant knowledge in the Balcero litigation. Doc. 17-1 at 16 and

Doc. 17-17. Mr. Collingsworth and Conrad & Scherers Rule 26 disclosures in the

defamation case incorporate all of the witnesses in the underlying ATS litigation,

so Halcon is a possible witness in the defamation case, as well. Doc. 17-18.

Conrad & Scherer paid Halcon more than $50,000 from 2008 through

October 15, 2012. Doc. 17-1 at 20-22. The paymentsapproximately $1,250

per monthwere effected by Conrad & Scherer employees in Ft. Lauderdale,

Florida, taking cash to places such as Publix, Wal-Mart and the Island Meat & Fish

Supermarket to send international transfers via MoneyGram or Western Union to a

person named Jose Pinzon. Doc. 17-1 at 20 and Docs. 17-19 & 17-20. Although

Drummond does not know when the payments to Halcon began, Mr. Collingsworth

and Conrad & Scherer have produced emails from as early as April 2008 between


{B1962252} 29

Conrad & Scherer and Jose Pinzon discussing wire transfers for our gentleman.

Doc. 17-21. The payments are not described as security payments, but rather are

characterized as support for Halcon and his family. Docs. 17-22 & 17-23.

After MoneyGram raised questions about the payments, Pinzon wanted to

misrepresent them as payments from family members. Doc. 17-24. In response,

Mr. Collingsworth provided a letter stating the payments were for Pinzon to

perform fieldwork. Id. On June 26, 2013, Mr. Collingsworth provided a sworn

interrogatory response describing Pinzon as the person [who] collects security

payments on behalf of alias Halcon, Doc. 17-25 at No. 8, but then changed his

story in November of 2013 to state that Pinzon is Halcon. Doc. 17-2

(Collingsworth Decl.) 41. Later, Mr. Collingsworth changed his story yet again,

claiming hes been confused and that Halcons real name may be Luis Leon.

Doc. 17-26 (Collingsworth Decl.) 12. Whatever his true identity may be, Halcon

claims to be a former member of the AUC and an active participant in at least two

murders. Doc. 17-27. Drummond is currently seeking to discover what sort of

fieldwork an admitted criminal and member of a terrorist organization could

have been providing to Mr. Collingsworth.

Jose Gelvez Albarracin. Mr. Collingsworth and Conrad & Scherer also paid

Jose Gelvez Albarracin, a/k/a El Canoso, who testified against Drummond in

Balcero. On November 28, 2011, a wire transfer was made from Conrad &


{B1962252} 30

Scherers bank account in the amount of $2,084 for the benefit of Celina Lombardi

Nieves El Canosos wife. Doc. 17-28 and Doc. 17-2 (Collingsworth Decl.) 44.

Isnardo Ropero. Mr. Ropero testified against Drummond in Romero v.

Drummond Co., Inc., 7:03-cv-00575-KOB (N.D. Ala.). Documents produced by

Western Union and MoneyGram reflect that Mr. Collingsworth paid Ropero nearly

$9,000 between July 18, 2007 and February 25, 2008. Doc. 17-1 at 28. The first

three payments to Ropero were sent by Daniel Kovalik, an attorney employed by

the United Steelworkers of America and Mr. Collingsworths co-counsel in

Romero. Id.

Drummonds Subpoenas to Mr. Scarola and His Firm.

There is no question that Mr. Scarola and Searcy Denney possess documents

and email communications directly relevant to the extent and purpose of Mr.

Collingsworths witness payments. For example, Paul Wolf one of Messrs.

Collingsworth and Scarolas co-counsel in the Chiquita MDL testified that Mr.

Scarola was present at multiple meetings in which witness payments were

discussed. Doc. 17-29 (Wolf Decl.). With respect to one such meeting in June

2011, Mr. Wolf testified as follows:

Q. All right. And was there any discussion about whether or not Mr. Collingsworth was paying witnesses?

MR. SMITH: Object to the form.

Q. (BY MR. DAVIS) -- by Mr. Scarola?


{B1962252} 31

A [MR. WOLF]: Yes. I contacted Mr. Scarola by email several times and have produced those in discovery to you. That -- I wanted that to be an agenda item. So Scarola put that on the agenda. And as we went through the meeting, one of the agenda items which Mr. Scarola read was concern has been expressed about Conrad & Scherers policy of paying witnesses in various cases. And the group would like to discuss payments to witnesses in this case.

That was essentially my concern, was that whatever was going on in the Drummond case was not going to be repeated in the Chiquita case. So Mr. Scarola asked him kind of a prepared question like that. I cant really repeat word for word what anyone said, what Terry said -- I said something. . . . But the gist of it was that Terry was confronted with this accusation that his law firm has been paying witnesses. And his response was, Its okay. Yes, were paying witnesses, but its justified and we have an ethics opinion based on that. Now, I cant say that, yes, Terry said, Yes, we are paying witnesses. I -- I maybe should correct what I just said on the record. I just dont remember exactly how Terry said it, but he didnt deny it. He justified paying witnesses.

Doc. 17-30 (Wolf Dep.) at 40:13-41:19.13 According to Wolf, there should be

meeting minutes relating to these discussions. Id. at 44:20-24 (Jack Scarola would

always take minutes and then publish his version of what happened. [. . .] [H]e

would generally write his own meeting notes and publish them to the group.).

After the June 2011 meeting, in an email exchange dated July 5, 2011, Mr.

Scarola wrote: Bill14 and Terry You agreed at our meeting to provide us with a

13 Mr. Scarola confirmed that he was present at this meeting and that Mr. Collingsworth and Conrad & Scherers witness payments were discussed. Doc. 17-32 (Scarola Decl.) at 3.

14 Bill is William R. Scherer, Jr., Conrad & Scherers Managing Partner.


{B1962252} 32

copy of the ethics opinion you received regarding compensation to witnesses and

members of their families as well as details of the expenses incurred to date that

have directly or indirectly benefited potential witnesses. This is a follow up

reminder. Doc. 17-29 (Wolf Decl.). Mr. Collingsworth responded: Jack, we are

working on this converting informal memo and oral advice to a memo for the

group. Id.

On July 19, 2011, Mr. Collingsworth circulated via email a memo authored

by an associate at Conrad & Scherer which analyzed the propriety of paying for

witnesses legal fees but had nothing to do with payments for witness security.

Doc. 17-33 (July 19, 2011 email attaching Piper Hendricks Memo). In that email,

Mr. Collingsworth openly advocated for payments to paramilitaries criminal

lawyers, stating Clearly can do; question is doing so in a way to minimize impact

on credibility. Id. Presumably anticipating resistance to the idea of paying

incarcerated witnesses criminal lawyers, Mr. Collingsworth stated: For those

reluctant, tell me how else we get truthful evidence of an AUC-Chiquita

discussion. Id.

However, Mr. Scarola has testified that Mr. Collingsworth discussed with

him paying security costs for witnesses and provided him a different memo

addressing witness security. Doc. 17-32 (Scarola Decl.) at 3 & 4. Therefore,

Searcy Denney is admittedly in possession of an additional memo and likely other


{B1962252} 33

documents concerning the issue of witness payments.

In addition to his involvement in discussions and communications regarding

witness payments, Mr. Scarola interjected himself into the underlying defamation

case when he submitted a sworn declaration in October of 2013 in support of

Defendants unsuccessful opposition to Drummonds motion to compel. In that

affidavit, Mr. Scarola testified regarding the substance of communications and

documents relating to witness payments:

3. [] Mr. Collingworth told the [Chiquita MDL] group that in his Drummond litigation, several witnesses and their family members received death threats when they were about to testify about Drummonds participation in war crimes and extrajudicial killings . . . he did say that in the Drummond case he was forced to relocate family members of witnesses because of credible death threats they received, and that we should be prepared to address this.

4. Mr. Collingsworth did provide the [Chiquita MDL] group a confidential legal memo addressing witness security and other issues that referenced the applicable legal and ethical standards.

Id.

Mr. Scarola, Searcy Denney, and Defendants cannot legitimately complain

that Drummond seeks documents relating to the substance of Mr. Scarolas

testimony and which are critically relevant to this casenamely, the extent and

purpose of Defendants payments to witnesses and their subjective belief in the

truth of these witnesses testimony. Drummonds subpoenas contain 10 specific

requests which are narrowly focused on subjects which have already been held to


{B1962252} 34

be within the scope of discovery by United States District Court Judge R. David

Proctor, who is presiding over Drummonds underlying defamation case. Doc. 17-

34.15 A summary of the requests is below for the Courts reference:

Request Nos. 1-8 Documents related to payments to third party witnesses or their family members

Request No. 9 Communications with the Defendants regarding the defamation case or this subpoena

Request No. 10 Communications with Llanos Oil16

Docs. 1-2 & 1-3. At issue for purposes of this appeal are Requests 1 through 8. As

noted by the district court, Mr. Scarola and Searcy Denney provided no specific

objections to requests 9 and 10, Doc. 24 at 5 n.1, so the district courts denial of

the motion to quash as it relates to these requests is due to be affirmed without

further discussion. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331

(11th Cir. 2004) (This Court has repeatedly held that an issue not raised in the

district court and raised for the first time in an appeal will not be considered by this

court.) (internal quotation marks and citations omitted).

15 The relevancy of the documents sought by the subpoenas has not been challenged on appeal. Nor have the Appellants challenged Judge Proctors ruling that the fact of witness payments is not subject to work product objections. Id.16 Llanos Oil is a Netherlands-based company antagonistic to Drummond which was intimately involved in creating and publishing Mr. Collingsworths defamatory letters as part of a joint campaign to clos[e] down Drummond. Doc. 1-1 at 7-29.


{B1962252} 35

STATEMENT OF THE STANDARD OF REVIEW

Mr. Scarola, Searcy Denney, and Defendants all argue that this Court should

review the district courts decision de novo. Collingsworth Br. at 8; Scarola Br. at

1.17 But when reviewing a district courts rulings with respect to motions to quash

subpoenas, this Court employs an abuse of discretion standard:

Specifically regarding subpoenas, Fed.R.Civ.P. 45(b) allows a court to quash or modify the subpoena if it is unreasonable and oppressive. The trial court, however, has wide discretion in setting the limits of discovery, and its decisions will not be reversed unless a clearly erroneous principle of law is applied, or no evidence rationally supports the decision. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). This circuit has stated that it will review an order to quash only for abuse of discretion. Ariel v. Jones, 693 F.2d 1058, 1060 (11th Cir. 1982).

Moore v. Armour Pharm. Co., 927 F.2d 1194, 1197 (11th Cir. 1991). This

standard of review applies even where, as here, the motion to quash involves a

question of privilege. See J. H. Rutter Rex Mfg. Co. v. N. L. R. B., 473 F.2d 223,

235 (5th Cir. 1973) (reviewing for abuse of discretion grant of motion to quash

premised on work product grounds). This Courts sister circuits agree.18

17 Scarola Br. refers to the principal appellate brief filed by Mr. Scarola and Searcy Denney. Collingsworth Br. refers to the principal appellate brief filed by Mr. Collingsworth and Conrad & Scherer. 18

Lago Agrio Plaintiffs v. Chevron Corp., 409 F. Appx 393, 395 (2d Cir. 2010) (We review decisions of a district court regarding whether to quash a subpoena and the waiver of attorney-client privilege under the same abuse of discretion standard); U.S. v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973) (applying an abuse of discretion standard to a district courts decision quashing subpoenas and its application of privilege to intra-agency communications of the Executive Branch);


{B1962252} 36

It is true that Appellants arguments that the district court erred in following

this Courts decision in Tambourine Comercio Internacional SA v. Solowsky, 312

F. Appx 263 (11th Cir. 2009) would likely involve de novo review (that is,

whether Tambourine misinterpreted Rule 26). But whether Mr. Scarola and Searcy

Denney carried their burden of demonstrating that the documents sought by the

subpoenas are protected by the work product doctrine is reviewed for abuse of

discretion. See United Kingdom v. United States, 238 F.3d 1312, 1319 (11th Cir.

2001) (abuse of discretion is the standard used in reviewing the district courts

ordinary discovery rulings, such as rulings as to whether the foundation for a claim

of privilege has been established); Castle v. Sangamo Weston, Inc., 744 F.2d

1464, 1466 (11th Cir. 1984) (reviewing for abuse of discretion a discovery

decision on work product). Therefore, Appellants arguments that (1) the

documents at issue should remain protected under Hickman v. Taylor, 329 U.S.

495 (1947) because the work product doctrine is only partially codified in Rule

26(c)(3), and (2) the district court erred by accepting the parties request not to rule

Sheet Metal Workers Intern. Assn v. Sweeney, 29 F.3d 120 (4th Cir. 1994) (clearly erroneous standard of review applied to district courts decision not to quash a subpoena the movant claimed called for testimony and materials protected by the attorney-client privilege); U.S. v. Verrusio, 762 F.3d 1, 23 (D.C. Cir. 2014) (plain error standard of review applied to district courts order quashing a subpoena on the basis that it called for testimony protected by the Speech and Debate Clause privilege).


{B1962252} 37

on Mr. Scarola and Searcy Denneys undue burden arguments, are subject to the

abuse of discretion standard.

To the extent this Court exercises jurisdiction over Mr. Scarola and Searcy

Denneys petition for writ of mandamus, the standard of review is even more

demanding:

Because a writ of mandamus is an action against the district court judge, it is a drastic and extraordinary remedy reserved for really extraordinary causes amounting to a judicial usurpation of power or a clear abuse of discretion. Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 258687, 159 L.Ed.2d 459 (2004) (quotation marks and citations omitted).

Three conditions must be satisfied before a writ of mandamus may issue. Id. First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires, thus ensuring that the writ does not replace the regular appeals process. Id. at 38081, 124 S.Ct. at 2587 (quotation marks omitted) (alterations adopted). Second, the petitioner must show that his right to issuance of the writ is clear and indisputable. Id. at 381, 124 S.Ct. at 2587 (quotation marks omitted). Third, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. Id.

In re Wellcare Health Plans, Inc., 754 F.3d 1234, 1238 (11th Cir. 2014). See also

In re Steinhardt Partners, L.P., 9 F.3d 230, 233-34 (2d Cir. 1993) (This standard

requires a showing of an extreme need for reversal. . . . It is not enough that the

court of appeals might disagree with the district judges decision were it a

conventional appeal from a final judgment. [E]ven if the judge was wrong, indeed

very wrong . . . that is not enough.) (citations omitted).


{B1962252} 38

SUMMARY OF THE ARGUMENT

The judgment of the district court should be affirmed. Judge Middlebrooks

correctly found that Mr. Scarola and Searcy Denney failed to carry their burden of

demonstrating the documents sought by Drummonds subpoenas are shielded from

disclosure under the work product doctrine. Defendants did not even attempt to

raise claims of work product before the district court, depriving the district court of

the opportunity to consider Defendants position on the issue. The documents at

issue were created during the course of representing different parties in a different

case, and therefore are not work product in this case under the plain language of

Rule 26(b)(3) and United States Supreme Court precedent.

Even if this Court disagrees with the district courts holding in this regard,

there are three additional, independently sufficient reasons why this Court should

nevertheless affirm. First, none of the Appellants properly raised any work

product objections because none of them produced a privilege log, or otherwise

described the documents with the particularity required by this Court to preserve a

claim of privilege. As the district court recognized, without a privilege log, the

Court is left to speculate as to the propriety of Movants privilege arguments.

Doc. 24 at 5. This Court can and should affirm on this ground alone.

Second, Mr. Scarola and Searcy Denney (as well as Mr. Collingsworth and

Conrad & Scherer) waived any work product protection over the documents at


{B1962252} 39

issue to the extent they were disclosed to Paul Wolf, who had grave concerns about

Mr. Collingsworths payments to witnesses and affirmatively refused to sign a

Common Interest Confidentiality Agreement.

Third, Mr. Scarola, Searcy Denney, and Defendants waived the protections

of the work product doctrine by affirmatively placing the purportedly privileged

information and documents at issue in this litigation. Defendants filed an affidavit

by Mr. Scarola as an exhibit to a pleading opposing Drummonds efforts to

discover their witness payments. His affidavit described the substance of the

discussions and documents he now claims are privileged, and Defendants cited it

for the proposition that their admitted witness payments were proper. It is well

settled that a litigant cannot wield the work product doctrine as both a sword and a

shield, offering self-serving testimony about the substance of purportedly

privileged documents while simultaneously denying the opposing party the ability

to discover those documents.

Mr. Scarola and Searcy Denney (but not the Defendants) also raise an undue

burden argument. This argument, too, should be rejected. Mr. Scarola and Searcy

Denney asked the district court not to address their undue burden objection, and

therefore cannot now ask this Court to reverse the district court on this basis.

Furthermore, the sole evidence they offer in support of this objection is premised


{B1962252} 40

on a patently incorrect interpretation of Drummonds subpoenas, and therefore

does not establish that the subpoenas impose an undue burden.

ARGUMENT AND CITATIONS OF AUTHORITY

The procedural history of this appeal is somewhat unique, in that only half

of the Appellants actually participated in the proceedings below. Only the

subpoena recipients (Mr. Scarola and Searcy Denney) timely objected to the

subpoenas and only they moved to quash. Defendants (Mr. Collingsworth and

Conrad & Scherer) served no objections to the subpoena, did not file a motion to

quash, and did not participate in the proceedings initiated by the subpoena

recipients. Rather, they laid in wait until the district court made its decision, and

then filed a notice of appeal once they determined they were unhappy with the

result.

I. MR. COLLINGSWORTH AND CONRAD & SCHERER WAIVED ALL OF THEIR

OBJECTIONS TO THE SUBPOENAS, AND THEIR APPEAL SHOULD BE

SUMMARILY DISMISSED WITHOUT REACHING ITS MERITS.

As a threshold matter, Mr. Collingsworth and Conrad & Scherer waived all

of their objections to Drummonds subpoenas. Rule 45 requires the objecting

party to raise its objections before the earlier of the time specified for compliance

or 14 days after the subpoena is served. Ott v. City of Milwaukee, 682 F.3d at


{B1962252} 41

558 (quoting Fed. R. Civ. P. 45(c)(2)(B)).19 Despite receiving notice of the

subpoenas pursuant to Rule 45(a)(4), Mr. Collingsworth and Conrad & Scherer

never raised any objection to the subpoenas within the time allotted under Rule

45(d)(2)(B). In fact, they did not raise any objections until after the district court

entered its November 20, 2014 Order denying Mr. Scarola and Searcy Denneys

motion to quash.20 That failure results in waiver of any objections they might

otherwise have had. Universal City Dev. Partners, Ltd. v. Ride & Show Engg,

Inc., 230 F.R.D. 688, 697-98 (M.D. Fla. 2005) (Rule 45 requires both that an

objection be made to the subpoena and the claim of privilege must be stated within

14 days of service of the subpoena. [. . .] Failure to serve written objection to a

subpoena within the time specified by Fed.R.Civ.P. 45 typically waives any

objections the party may have.) (citations omitted); Uzzell v. Teletech Holdings,

Inc., No. C07-0232 MJP, 2007 WL 4358315, at *1 (W.D. Wash. Dec. 7, 2007) (A

party who does not timely object to a Rule 45 subpoena waives any objection to

the subpoena. [. . .] Because Plaintiff never objected, filed a motion to quash, or

filed a motion for a protective order until more than two months after the

19 Subdivision (d) contains the provisions formerly in subdivision (c). 2013 Amendments, advisory committee notes. 20 Not only did they receive notice of the subpoenas, but both Mr. Collingsworth and Conrad & Scherer were closely following and acutely aware of the resulting miscellaneous proceedings, as is evidenced by their conferral with Drummonds counsel regarding filing certain documents under seal. See Doc. 14 (Oct. 16, 2014 Order) at 2.


{B1962252} 42

subpoenas were issued, he has waived all objections to the subpoenas.) (citation

omitted).21

This Court should reject Defendants arguments for this reason alone.

II. THE DOCUMENTS AT ISSUE ARE NOT PROTECTED BY THE WORK PRODUCT

DOCTRINE.

The crux of both Mr. Scarola and Searcy Denneys argument, as well as that

of Mr. Collingsworth and Conrad & Scherer, is the district court erred by allegedly

not considering whether the documents at issue are protected from disclosure under

either Rule 45 or Hickman v. Taylor, 329 U.S. 495 (1947), because Rule 26(b)(3)

only partially codified the work product doctrine. Scarola Br. at 12 (citation

omitted); see also Collingsworth Br. at 12 (noting the purported partial

codification of the work product doctrine in Rule 26(b)(3)).

First, this partial codification argument is irreconcilable with Mr. Scarola

and Searcy Denneys position in the district court. Indeed, Mr. Scarola and Searcy

Denney expressly argued that [t]he attorney work product privilege traces its roots

to the recognition by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 510-

511 (1947) and that [t]he privilege is presently codified i[n] Federal Rules of

21

See also Parke v. Glover, No. 09-0327-WS-C, 2010 WL 370329, at *2-3 (S.D. Ala. Jan. 26, 2010) (a party has 14 days within which to object to a non-party subpoena otherwise the objections are waived); Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 412 (S.D.N.Y. 2000) (same); Edlin v. Garner Family Enterprises, Inc., No. 1:11-CV-01300-SEB, 2012 WL 364088, at *1 (S.D. Ind. Feb. 1, 2012) (same).


{B1962252} 43

Civil Procedure 26(b)(3). Doc. 1 at 5 (emphasis added). There was no argument

before the district court that Rule 26(c)(3) only partially codified the work product

doctrine, or that the district court should look beyond Rule 26(c)(3) in addressing

Mr. Scarola and Searcy Denneys work product claims. They cannot now raise

this new argument on appeal as grounds for reversing the district court:

Whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court, he should raise that point in such clear and simple language that the trial court may not misunderstand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment on appeal.

United States v. Zinn, 321 F.3d 1084, 1087-88 (11th Cir. 2003) (quoting United

States v. Riggs, 967 F.2d 561, 564 (11th Cir. 1992), quoting in turn United States v.

Reyes-Vasquez, 905 F.2d 1497, 1500 (11th Cir. 1990)).22

Moreover, even if this partial codification argument had been properly

raised below, it nevertheless fails on its merit. Mr. Scarola, Searcy Denney, and

Defendants all claim the district court erred in relying on this Courts opinion in

Tambourine Comercio Internacional SA v. Solowsky, 312 F. Appx 263, 284 (11th

Cir. 2009). In Tambourine, the defendants were a lawyer and his law firm accused

of wrongdoing related to money held in trust. The plaintiff sought to introduce the

documents of an expert witness (Turner) who had been retained by defendants in

22 Notably, this Court has stated that [t]he [work product] privilege is presently codified in Fed. R. Civ. P. 26(b)(3). Cox v. Administrator U.S. Steel & Carnegie,17 F.3d 1386, 1421 (11th Cir. 1994).


{B1962252} 44

previous litigation (the Kobarid litigation). In the Kobarid litigation, Defendants

represented a client named Reizen. This Court held that Turners documents were

not protected by the work product doctrine and were thus discoverable:

By its plain text, Rule 26(b)(3) applies to documents or things prepared by or for another party or its representative. Turner prepared the documents at issue here in anticipation of the Kobarid litigation for Reizen. Reizen is not a party to this case. Defendants were not parties to the Kobarid case, but rather served as Reizens defense counsel for a time. Thus, the Rules protection applies to Reizen, not to Defendants. Indeed, the Supreme Court itself has stated, albeit in dicta, that the literal language of [Rule 26(b)(3)] protects materials prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation. FTC v. Grolier Inc., 462 U.S. 19, 25, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983) (citing 8 C. Wright & A. Miller, Federal Practice and Procedure 2024, at 201 (1970)) (emphasis added). According to the Wright & Miller article, [d]ocuments prepared for one who is not a party to the present suit are wholly unprotected by Rule 26(b)(3) even though the person may be a party to a closely related lawsuit in which he will be disadvantaged if he must disclose in the present suit.

312 F. Appx at 284.

All of the Appellants downplay Tambourine as an unpublished decision of

this Court with no binding precedential effect. Collingsworth Br. at 12; see

also Scarola Br. at 15 (because Tambourine is unpublished, it is not

precedential). Tambourine, however, is persuasive authority, and the district

court should not be held in error for following it. 11th Cir. R. 36-2.

Moreover, other courts have relied on Tambourine to reach the same

conclusion as the district court. S.E.C. v. Microtune, Inc., 258 F.R.D. 310, 317 n.3


{B1962252} 45

(N.D. Tex. 2009) (citing nine cases, including Tambourine, and stating [u]nder

the plain language of Rule 26(b)(3), only a party can claim work product

protection and denying a non-partys motion to quash a subpoena); Bozeman v.

Chartis Cas. Co., No. 2:10-cv-102-FtM-362PC, 2010 WL 4386826, at *2 (M.D.

Fla. Oct. 29, 2010) (citing Tambourine and rejecting non-party attorneys argument

that a subpoena commanding the production of documents prepared for another

party in another case were protected by the work product doctrine); Adriana M.

Castro, M.D., P.A. v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 WL 3771493, at *4

(N.D. Ill. July 18, 2013) (allowing a non-party subpoena recipient to make work

product objections would abrogate the limitations affirmatively imposed by the

Rule and contravene the Supreme Court's teaching that Rule 26(b)(3) sets forth

the extent to which trial preparation materials are discoverable in federal

courts.) (quoting FTC v. Grolier Inc., 462 U.S. 19, 25 (1983)).

Furthermore, Tambourine correctly applied the Supreme Courts holding in

FTC v. Grolier, Inc., 462 U.S. 19 (1983). Grolier recognized that the federal rules

were amended in 1970 (well after Hickman v. Taylor) to add Rule 26(b)(3), which

the Court held clarif[ies] the extent to which trial preparation materials are

discoverable in federal courts. Id. at 25. Grolier went on to state that the literal

language of the Rule protects materials prepared for any litigation or trial as long

as they were prepared by or for a party to the subsequent litigation. Id. (citing 8 J.


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Wright & A. Miller, Federal Practice and Procedure 2024, at 201 (1970))

(emphasis in original). Significantly, Grolier also noted that [w]hatever problems

such a construction of Rule 26(b)(3) may engender in the civil discovery area, its

holding was consistent with the language of Rule 26(b)(3). Id. at 25-26.

Tambourine, therefore, faithfully applies the Supreme Courts holding in

Grolier and the plain language of Rule 26(b)(3), which codifies the work product

doctrine. Accordingly, the district court did not err in denying Mr. Scarola and

Searcy Denneys motion to quash on this basis.23

III. THERE ARE THREE ADDITIONAL, INDEPENDENTLY SUFFICIENT REASONS

WHY THE DISTRICT COURT SHOULD BE AFFIRMED.

This Court, however, need not reach Appellants arguments concerning the

district courts application of Tambourine. The Court can affirm on any ground

supported by the record. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043,

1059 (11th Cir. 2007

Drummond Brief in Common Interest Privilege Appeal

Documents

Transcript of Drummond Brief in Common Interest Privilege Appeal