drummond dole response to special master recommendation re confidentiality r 371

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DRUMMOND COMPANY, INC.,

Plaintiff,

v.

TERRENCE P. COLLINGSWORTH,

individually and as agent of Conrad &

Scherer, LLP; and CONRAD &

SCHERER, LLP, et al.,

Defendants.

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CV-11-P-3695-S

DOLE FOOD’S RESPONSE TO REPORT AND RECOMMENDATION OF SPECIAL

MASTER REGARDING CERTAIN ISSUES RELATING TO THE COURT’S HEARING

ON PLAINTIFF’S MOTION FOR SANCTIONS

On August 18, 2015, Dole Food received the Special Master’s Report and Recommenda-

tion Regarding Certain Issues Relating to the Court’s Hearing on Plaintiff’s Motion for Sanc-

tions. Dole Food does not have access to the underlying documents the Special Master assessed,

and thus it cannot comment on the Special Master’s determination of whether particular docu-

ments are privileged and/or deserve confidential or other treatment. In terms of the general is-

sues addressed in the Special Master’s Report, Dole Food seeks clarification on two issues and

raises one, critical objection.

Dole Food did not fund the AUC – ever. It did receive threats. Its subsidiary’s employ-

ees were kidnapped. And they were murdered. As it dealt with these crises, Dole Food never

saw funding terrorists as an option. Yet, since 2009, it has stood falsely accused of the most hei-

nous acts. Its accuser, Conrad & Scherer, recruited its clients and then filed a baseless complaint

FILED 2015 Aug-21 PM 04:04U.S. DISTRICT COURT

N.D. OF ALABAMA

Case 2:11-cv-03695-RDP-TMP Document 317 Filed 08/21/15 of 7

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. See Perez 1A v. Dole Food Co., Case No. BC412620, Court’s Ruling on Motion of Defendant

Dole Food Company, Inc. for Cost Bond Under Code of Civil Procedure Section 1030 Heard on

July 6, 2010 at 5 (Cal. Super. Ct. July 7, 2010) (“[t]the court finds that there is a ‘reasonable pos-

sibility’ that defendant will prevail at trial.”). Much of the evidence of Conrad & Scherer’s ac-

tions may never be documented, in light of facts such as the large swaths of “missing” e-mails

“lost” from multiple, Terry Collingsworth devices. But other evidence exists - evidence that

Conrad & Scherer is desperately trying to keep under wraps as its lies to and misleads multiple

courts around the country. Justice Brandeis once said – “Sunlight is said to be the best of disin-

fectants…” Buckley v. Valeo, 424 U.S. 1, 658 (1976). He could not have been more right.

Dole Food requests that Conrad & Scherer’s bad acts, and the documents that confirm those bad

acts, be placed firmly in the sunlight.

Objection: Dole Food objects to any document found to be evidence of a crime/fraud be-

ing designated “confidential” in this action or otherwise kept from public view. The Report and

Recommendation (“Report”) finds that no privilege or work product protection attaches to a

number of documents because they fall within the crime-fraud exception. See August 14 Report

& Recommendation, at pp. 32-39. The Report orders their production yet goes on to state that

“while the crime-fraud exception should give Plaintiff in this case possession of certain docu-

ments in this case, the Special Master has concerns about the confidential nature of those docu-

ments and their use beyond this litigation.” August 14 Report & Recommendation, at p. 32. The

Report then recommends that a specified list of documents “be produced, and redacted if noted,

but remain ‘Confidential’ pursuant to Protective Order in this case….” Id. The Report does not

disclose the nature of the concern or why it leads to the conclusion that confidential treatment is

appropriate, so Dole Food cannot address those issues directly.


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The Report also does not identify any legal or factual basis or reason for designating

these documents as “confidential” in the face of a crime-fraud finding. And Dole Food is una-

ware of any authority for the proposition that a document that is determined to be in furtherance

of a crime or a fraud, and therefore subject to discovery, can nonetheless be kept from public

view. Far from being guarded as “confidential,” documents made in furtherance of a crime or

fraud should promptly be made openly available to the appropriate authorities, and to those

whom Conrad & Scherer has falsely accused. Dole Food has stood falsely accused for years

while Conrad & Scherer made back room deals with witnesses so they could “like what they

see”. See Drummond Co. v. Collingsworth, Case No. 2:11-cv-03695 (RDP) (TMP) (N.D. Ala.),

Dkt. 109-1 at 2 (filed on 4/3/2014). While they negotiated with the very mass murdering drug

lords who murdered their own clients to supposedly serve as their “experts.” See Conrad &

Scherer LLP v. Wichmann, Case No. 09-011600 (05), (Transcript, hearing 5/2/14) at 97:3-8 (Fla.

Cir. Ct.). And while they apparently paid these same murderers legal bills in criminal proceed-

ings. See Drummond, Dkt. 101-15 (filed on 4/2/2014). All of this is likely part of a crime/fraud

and none of it should be afforded “confidentiality” by any court. Dole Food subpoenaed from

Drummond the evidence it intends use to defend itself against the outrageous and false claims

that Conrad & Scherer chose to level against it in the Superior Court of Los Angeles. Dole

Food’s defense should be as public and Conrad & Scherer’s baseless allegations.

Rather than furthering the rule of law, restricting Dole Food’s ability to use evidence that

the Report recognizes is neither privileged nor work-product precisely because of its furtherance

of a crime or fraud undermines Dole Food’s ability to investigate and defend itself. And it facili-

tates Conrad & Scherer’s attempts to manipulate and deceive other tribunals. For example, the

only document described in substantive detail (in footnote 10 on pages 32 through 33) pertains


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directly to the false claims that Conrad & Scherer has brought against Dole Food in the Los An-

geles Superior Court, and about which Conrad & Scherer has made misrepresentations to both

the trial court and appellate courts presiding over that action. In California, as in this Court,

Conrad & Scherer has claimed without justification that the payments were made as an “expert

witness fee,” when, as the Report recognizes, in actuality “[t]he witness in question provided in-

formation and facts regarding persons and entities in Colombia, not opinion testimony” and thus

the document should “be produced under the crime-fraud exception.” August 14 Report & Rec-

ommendation, at p. 33, n. 10. There is no good reason to protect from public scrutiny this or any

other document that further crimes or frauds.

The need to put Conrad & Scherer’s actions in the public view is particularly critical in

these related matters where Conrad & Scherer’s lack of respect for the rule of law and candor.

Conrad & Scherer was caught lying to this Court and to the California court - and only admitted

its lies after they were outed. It now stands in contempt of the California Court’s order to pro-

duce all documents relating to payments and scripts provided to any former AUC member. Pe-

rez 1A v. Dole Food Co., Case No. BC412620, Order Granting Dole Food Company, Inc.’s Mo-

tion to Compel the Production of Documents and Responses to Interrogatories at 4 (Cal. Super.

Ct. July 10, 2015). Highlighting its duplicitous positions as it moves between different courts,

after having argued to the state and federal Alabama Courts that they should quash Dole Food’s

subpoena and limit it to requesting payment documents through party discovery in California,

Conrad & Scherer is now arguing in the California action that it cannot be ordered to produce the

incriminating documents there because the Perez plaintiffs and Conrad & Scherer as their agent

supposedly lack “possession, custody and control” of them. In rejecting Conrad & Scherer’s

recent request for an emergency stay of the California production order, the Presiding Justice of


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the Court of Appeal held: “Petitioners have been dilatory in seeking relief. Given the unprece-

dented evidence of payments to at least one witness, there has been no showing of any abuse of

discretion by the respondent court.” Mendoza Gomez v. Sup. Ct., Case No. B266126, Order

Denying Stay Request (Cal. Ct. App. Aug. 14, 2015). Even in the face of this denial of its stay

request, Conrad & Scherer continues in its contemptuous behavior. Thus despite having been

forced to litigate this issue up to the Alabama Supreme Court and in the California Court of Ap-

peal, Dole Food has yet to receive its discovery.

Absent Conrad & Scherer’s misuse of the confidentiality order in this case, these docu-

ments would have long ago been in the public record, and both this Court and numerous others

would have been spared significant expenditures of time and effort, as well as attempted manipu-

lations. Going forward, Dole Food urges this Court to ensure that all discoverable documents—

but especially those found to further crimes or frauds—become and remain part of the public

record. See Ala. Code § 36-12-40.

First Request for Clarification: During the telephonic hearing held on July 2, 2015, the

Honorable Judge Proctor held that, in order to allow Drummond to complete its compliance with

Dole Food’s subpoena on or before late August 2015, the Special Master would review all re-

sponsive documents marked “confidential” to determine: (1) whether any “witness location” in-

formation needed to be redacted; and (2) which, if any, of the documents should retain their

“confidential” designation when produced to Dole Food. See July 2, 2015 Tel. Hearing Tr. at

3:25-4:15; July 6, 2015 Order (Dkt. 267). After this determination, all responsive documents are

to be produced to Dole Food by Drummond this month. Setting aside the Paul Wolf, Parker

Waichman and Oxbridge Financial documents addressed below, the Report and Recommenda-

tion does not explicitly address the documents previously marked “confidential” by Conrad &


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Scherer that are to be produced to Dole Food by Drummond pursuant to Dole Food’s Alabama

State Court subpoena. Drummond previously represented that approximately 85% of those doc-

uments related to witness payment issues and were not properly marked confidential in light of

the Special Master’s subsequently adopted February 26, 2015 Report and Recommendation hold-

ing that the fact of a payment to a witnesses or potential witnesses is not “confidential infor-

mation” within the meaning of the Stipulated Protective Order. See July 6, 2015 Order (Dkt.

268). Dole Food respectfully requests that the Special Master or District Court confirm that none

of the documents to be produced to Dole Food by Drummond are “confidential,” other than those

specifically identified in the August 14, 2015 Report and Recommendation.

Second Request for Clarification: The Report and Recommendation determines that

certain Paul Wolf, Parker Waichman and Oxbridge Financial documents, are confidential and/or

privileged while others are not. Dole Food understands that the documents in the possession,

custody and control of Drummond produced by these 3 entities and designated “confidential” by

Conrad & Scherer will be produced to it with a confidential stamp and subject to both the

Drummond and Perez protective orders. Dole Food further understands that the documents

found to be privileged will not be produced to it. Dole Food respectfully requests that either the

Special Master or the District Court confirm that Dole Food’s understanding in this regard is cor-

rect.

August 21, 2015 Respectfully submitted,

/s/ J. Bentley Owens

J. Bentley Owens, III (ASB-1986-044J)

Ellis, Head, Owens & Justice

P.O. Box 587

Columbiana, Alabama 35051

Telephone: (205) 669-6783

Facsimile: (205) 669-4932


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Email: [email protected]

Attorney for Non-Party Dole Food Company, Inc.

Of Counsel:

Andrea E. Neuman (N.Y. Reg. No. 5095138)

(will move for pro hac vice admission)

Gibson, Dunn & Crutcher, LLP

200 Park Avenue, 47th Floor

New York, NY 10166-0193

Phone: (212) 351-4000

Email: [email protected]

101981980.1
