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Case 1:06-Cv-00433-LTS-RHW Document 683 Filed 07/08/10 Page 1 of 11 Case 1:06-cv-00433-LTS-RHW Document 683 Filed 07/08/10 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA ex rel. CORI RIGSBY and KERRI RIGSBY RELATORS/COUNTER-DEFENDANTS v. CASE NO. 1:06cv433-LTS-RHW STATE FARM FIRE AND CASUALTY COMPANY DEFENDANT/COUNTER-PLAINTIFF and FORENSIC ANALYSIS ENGINEERING CORPORATION; HAAG ENGINEERING CO.; and ALEXIS KING DEFENDANTS STATE FARM FIRE AND CASUALTY COMPANY’S REBUTTAL MEMORANDUM IN SUPPORT OF ITS [671] MOTION FOR LIMITED AMENDMENT TO CASE MANAGEMENT ORDER [365] Robert C. Galloway (MSB #4388) Michael B. Beers ( ASB-4992-S80M ), PHV Jeffrey A. Walker (MSB #6879) BEERS, ANDERSON, JACKSON, PATTY & E. Barney Robinson III (MSB #09432) FAWAL, P.C. Benjamin M. Watson (MSB #100078) Post Office Box 1988, Suite 100 Amanda B. Barbour (MSB #99119) 250 Commerce Street (36104) Montgomery, Alabama 36102 BUTLER, SNOW, O’MARA, STEVENS & (P) (334) 834-5311 CANNADA, PLLC (F) (334) 834-5362 Post Office Drawer 4248 (E) [email protected] Gulfport, MS 39502 (P) (228) 575-3019 PRO HAC VICE (E) [email protected] James R. Robie (CA State Bar # 67303), PHV BUTLER, SNOW, O’MARA, STEVENS & ROBIE & MATTHAI CANNADA, PLLC Biltmore Tower, Suite 1500 200 Renaissance at Colony Park, Suite 1400 500 South Grand Avenue 1020 Highland Colony Parkway (39157) Los Angeles, California 90071 Post Office Box 6010 (P) (213) 706-8000 Ridgeland, MS 39158-6010 (F) (213) 706-9913 (P) (601) 948-5711 (E) [email protected] (F) (601) 985-4500 (E) [email protected] PRO HAC VICE (E) [email protected] (E) [email protected] (E) [email protected] Case 1:06-cv-00433-LTS-RHW Document 683 Filed 07/08/10 Page 2 of 11 Defendant/Counter-Plaintiff State Farm Fire and Casualty Company (“State Farm”) respectfully submits this Rebuttal Memorandum, pursuant to Federal Rule of Civil Procedure 16(b)(4), in Further Support of its [671] Motion for a Limited Amendment to the Case Management Order [365]. INTRODUCTION Very few issues on this motion are in dispute. What remains is nonetheless important. As State Farm represented to the Court in its opening memorandum, and as now confirmed by the Rigsbys, all Parties agree that State Farm should be given time to complete discovery of The Rendon Group, Inc. (“TRG”), including – if necessary – leave to take its or its personnel’s deposition. ([680] at 1 n.1.) Additionally, all Parties agree that Section 6(e) of the [365] CMO should be amended so that all motions currently due on July 15, 2010 will instead be due on August 16, 2010. ([680] at 1 n.1.) The only issues that remain are whether State Farm should be permitted to complete its depositions of the Rigsbys and a corporate representative of SLF, Inc. (“SLF”) after State Farm (i) reviews the TRG production (which it just obtained), (ii) receives and reviews the Barrett documents (which, pursuant to this Court’s order, is due on July 21, 2010), and (iii) receives any additional production from SLF based on State Farm’s Second Motion to Compel (which was filed today in the miscellaneous proceeding pending before the federal district court in Kentucky). The Rigsbys’ main argument is that State Farm “had more than enough time to take discovery from SLF” and has somehow forfeited its right to complete that deposition. This assertion is contradicted by the record, which demonstrates unequivocally that it is SLF’s obstructionist behavior and violation of a court order that has prevented State Farm from properly deposing its designated representative within the discovery deadline. 1 Case 1:06-cv-00433-LTS-RHW Document 683 Filed 07/08/10 Page 3 of 11 Moreover, the reason that State Farm did not depose SLF much earlier is that TRG, Don Barrett, and SLF all made an effort to obstruct State Farm from obtaining highly relevant documents that were necessary to effectively depose SLF. State Farm deposed SLF within the discovery period set forth in the CMO. It is SLF’s fault – not State Farm’s – that SLF obstructed and refused to obey a court order, forcing State Farm to today file a second motion to compel in the Kentucky proceeding. The Rigsbys’ attempts to shift the blame for these obstructionist tactics to State Farm do not withstand scrutiny. The Rigsbys also claim that the information that State Farm is seeking from them and SLF is of marginal relevance. The Rigsbys are wrong. State Farm has still not received the Barrett documents ordered in this Court’s [667] Order, as they are not due until July 21, 2010. State Farm has not yet received relief in Kentucky, as its second motion to compel was only filed today. State Farm did not receive the TRG production until late Tuesday afternoon and it comprises 17,424 pages – a huge number of documents that will take some time to review. Yet as revealed by the small sampling of the TRG production comprising Exhibit B, these materials pertain to issues that are highly relevant to this case and necessitate further questioning of SLF and the Rigsbys. 1 1 The Rigsbys also argue that this discovery somehow does not “relate to the central matter of this phase of litigation: whether State Farm submitted a fraudulent claim for payment on the McIntosh property.” ([680] at 1.) But this Court has already recognized that the “interrelationship of the McIntosh claim, the Scruggs attorneys, and the Rigsbys serves as the foundation for State Farm’s exploration of bias, prejudice or motive.” ([490] at 2.) As this Court held: “[E]vidence reflecting on the Rigsbys’ credibility is discoverable.” ( Id. at 3.) 2 Case 1:06-cv-00433-LTS-RHW Document 683 Filed 07/08/10 Page 4 of 11 REBUTTAL ARGUMENT I. THE DELAYED DISCOVERY WAS CAUSED BY SLF, THE BARRETT FIRM, AND TRG – NOT STATE FARM The Rigsbys suggest that State Farm has somehow dragged its feet in deposing SLF and therefore waived its right to complete SLF’s deposition. They also falsely 2 contend that State Farm engendered delay by serving Dickie Scruggs when he “was no longer the registered agent of SLF.” ([680] at 2.) With respect to TRG, State Farm served its subpoena duces tecum on January 5, 2010 [400]. Yet due to an intervening court battle initiated by TRG, State Farm did not receive a court order compelling production until June 17, 2010,3 and did not receive TRG’s production until late Tuesday afternoon.4 Moreover, State Farm made every reasonable attempt to obtain discovery from all possible sources. For example, SLF contends that it produced so few responsive documents because it sent them to Don Barrett some time ago. (06-28-2010 Rule 30(b)(6) Deposition of Scruggs Law Firm, P.A.-SLF, Inc. at 93-94 & 96-98, Ex. J to [671].) But State Farm served a separate subpoena duces tecum on Barrett in mid-April 2010, well before SLF’s deposition. ([480].) However, Barrett – like SLF – obstructed and State Farm was forced to seek a court order under which that production is not now due until July 21, 2010. ([667].) Finally, as explained more fully in State Farm’s Second Motion to Compel filed in the Kentucky miscellaneous proceeding, it is SLF’s misconduct – not State Farm’s conduct – that has caused the delay in concluding SLF’s deposition. See (SF’s Second Mtn. to Compel & 2 In fact, Scruggs was the registered agent of SLF at the time State Farm served both SLF subpoenas. See https://business.sos.state.ms.us/corp/soskb/Corp.asp?273884 . 3 See (Docket Sheet from TRG Alias Case, Ex. F to [671]. & ([23] Order in No. 1:10mc00164- HHK-JMF & [24] Mem. Op. in id. , Exs. A & B to [671].) 4 (Robinson Decl. at ¶¶3-4, Ex. A to Reb.) 3 Case 1:06-cv-00433-LTS-RHW Document 683 Filed 07/08/10 Page 5 of 11 Sptng. Mem. in No. 0:10-CV-00059-DLB-EBA (E.D. Ky.).) The Rigsbys argue that since “the Kentucky Court’s order on the motion to compel was handed down on Friday, June 25, and SLF’s deposition took place on Monday, June 28, it is not clear when or how SLF could have educated its witness, given the timing issues that State Farm itself created.” ([680] at 5.) In fact, SLF brought this “timing issue” upon itself when it filed its motion to quash on June 24, 2010 – four days before the scheduled deposition and thirteen days after it had been served with the subpoena . And the Rigsbys’ position – that State Farm should have rushed to depose SLF on a severely incomplete record – is contradicted by the Rigsbys’ previous briefing. Just two weeks ago , the Rigsbys argued to this Court that their late 30(b)(6) deposition notice to State Farm should be excused because State Farm’s supposedly “late” document production “ forced Relators to take a 30(b)(6) deposition at the end of the discovery period. ” ([653] at 3) (emphasis added). As they argued: “[P]arties are not precluded from taking appropriate discovery even if they could have taken it earlier. The decision as to how to order discovery is a matter left to the party seeking discovery.” ( Id. at 4.) State Farm deposed SLF within the discovery period – and State Farm should not be prejudiced by SLF’s stonewalling and blatant refusal to comply with a federal court order. This Court permitted the Rigsbys to take an out-of-time deposition of State Farm.
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