Drummond Brief in Common Interest Privilege Appeal

Case: 14-15722
Date Filed: 05/18/2015
Page: 1 of 79
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.
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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
Cohen Milstein Sellers & Toll, PLLC (Proposed Intervenor in District Court)
Clark, Jr., John W. (counsel for Defendants-Appellants)
Collingsworth, Terrence P. (Defendant-Appellant)
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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
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
Kropf, Sara E. (counsel for Plaintiff-Appellee)
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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
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)
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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
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
(205) 868-6000
Counsel for the Appellee
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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.
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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 BE
SUMMARILY 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 REASONS
WHY 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
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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 ARGUMENT
SHOULD 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
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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
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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
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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
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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
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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*
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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
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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/p60249.pdf .....................................................................................................................25
http://www.dane.gov.co/files/noticias/MESEP_2009.pdf.......................................25
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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
On March 26, 2015, this Court entered an order providing that [t]he
jurisdictional question(s) earlier raised will be carried with the case.
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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?
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2.
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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.
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Despite receiving notice of the subpoenas, Mr.
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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
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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.
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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.
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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
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.
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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
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.
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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.
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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.
The Netherlands government influences or controls the coal Netherlands-based

utilities purchase.
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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-0575KOB (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-cv01041-RDP (N.D. Ala.) (Balcero).
This Court also recently affirmed this
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.).
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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
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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
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.
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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.
First is Jairo de Jesus Charris Castro
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.
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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 at
http://www.census.gov/content/dam/Census/library/publications/2014/demo/p60249.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).
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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. 171 at 12 and Doc. 17-10 (Charris email). In the email, he states that his 82-yearold 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.
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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
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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
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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 &
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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?
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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.
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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
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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
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be within the scope of discovery by United States District Court Judge R. David
Proctor, who is presiding over Drummonds underlying defamation case. Doc. 1734.15 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.
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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);
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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}
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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).
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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}
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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}
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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}
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Case: 14-15722
558 (quoting Fed. R. Civ. P. 45(c)(2)(B)).19
Page: 47 of 79
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}
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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, 510511 (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}
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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).
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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}
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(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) (we may, nevertheless, affirm a district courts decision to
grant or deny a motion for any reason) (citing Lucas v. W.W. Grainger, Inc., 257
23
Some courts, recognizing these very limitations of Rule 26(b)(3), have utilized
protective orders under Rule 26(c) to deny discovery of work product from other
cases. See, e.g., Arkwright Mut. Ins. Co. v. Natl Union Fire Ins. Co. of Pittsburgh,
Pa., 19 F.3d 1432 n.3 (6th Cir. 1994) (unpublished table opinion) ([t]he sharp
edge of Rule 26(b)(3) is blunted somewhat by Rule 26(c)). None of the
Appellants cited any of this authority to the district court, and cannot raise it for the
first time on appeal. Access Now, 385 F.3d at 1331 (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.) (citations omitted).
{B1962252}
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F.3d 1249, 1256 (11th Cir. 2001)). Here, even if this Court were to disagree with
the district courts reliance on Tambourine, there are three additional,
independently sufficient reasons why the district court should nevertheless be
affirmed:
A.
1.
Mr. Scarola and Searcy Denney relied on blanket work product

objections, which this Court has repeatedly held are insufficient
to meet their burden to demonstrate that the documents are
privileged.
2.
Any alleged work product protection was waived as to any

documents disclosed to Paul Wolf, who refused to participate in
any common interest arrangement.
3.
Appellants placed the documents in Mr. Scarolas possession at

issue by describing their substance and significance in a sworn
declaration. They cannot now use the work product doctrine as
a sword and a shield by foreclosing discovery into these
documents.
Mr. Scarola and Searcy Denney did not meet their burden of
demonstrating that the documents sought are protected as work
product.
[T]he party seeking to assert the attorney-client privilege or the work

product doctrine as a bar to discovery has the burden of establishing that either or
both is applicable. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th
Cir. 2013) (quoting Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.
1984)). Rule 45(e)(2)(A) requires a subpoena recipient who withholds documents
on a claim of privilege or other protection to take certain steps to properly raise
such a claim:
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(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to
protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that,
without revealing information itself privileged or
protected, will enable the parties to assess the claim.
Mr. Scarola and Searcy Denney did not do this, and instead improperly relied on
admittedly blanket assertions of privilege this Court has consistently rejected.
Doc. 23 at 2; In re Grand Jury Subpoena, 831 F.2d 225, 227 (11th Cir. 1987) (We
agree with the underlying rationales of Davis and Roundtree and hold that an
attorney seeking to quash a subpoena must assert the attorney-client privilege on a
document-by-document basis.) (emphasis added); United States v. Davis, 636
F.2d 1028, 1044 n.20 (5th Cir. 1981) (Blanket assertions of privilege before a
district court are usually unacceptable.).24
24
This Circuit is not alone in its rejection of blanket assertions of privilege. See,
e.g., United States v. El Paso Co., 682 F.2d 530, 539 (5th Cir. 1982) (we have
made clear that the attorney-client privilege may not be tossed as a blanket over an
undifferentiated group of documents. The privilege must be specifically asserted
with respect to particular documents.) (citing Davis and Roundtree); In re Grand
Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir. 2011) (blanket assertions of
privilege are insufficient, as [d]etermining whether documents are privileged
demands a highly fact-specific analysisone that most often requires the party
seeking to validate a claim of privilege to do so document by document); United
States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990) (claims of attorney{B1962252}
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Mr. Scarola and Searcy Denney principally argued in their motion to quash
that the documents sought by the subpoenas were protected by the work product
doctrine. See Doc. 1. In response, Drummond maintained that Mr. Scarola and
Searcy Denney did not adequately preserve their work product objections because
they failed to produce a privilege log in accordance with Rule 45 and Southern
District of Florida Local Rule 26(g)(3). Doc. 17 at 12-13.25 Rather than produce a
privilege log, Mr. Scarola and Searcy Denney argued on reply that it would be
clearly absurd to require them to do so in light of the purported burden of
creating a privilege log, and that they need not log the documents until the Court
rules on [their] objections. Doc. 23 at 6.26 In that same filing, however, they told
client privilege must be asserted document by document, rather than as a single,

blanket assertion); Holifield v. United States, 909 F.2d 201, 204 (7th Cir. 1990)
(This type of blanket objection will not suffice to support a claim that the
attorney-client privilege prohibits the production of documents.).
25
Southern District of Florida Local Rule 26.1(g)(3)(B)(ii)(a) requires litigants to

provide specific information to properly claim privilege, including (1) the type of
document; (2) general subject matter of the document or electronically stored
information; (3) the date of the document or electronically stored information; and
(4) such other information as is sufficient to identify the document. Local Rule
26.1(g)(3)(C) correspondingly requires preparation of a privilege log with respect
to all documents, electronically stored information, things and oral
communications withheld on the basis of a claim of privilege or work product
protection except the following: written and oral communications between a party
and its counsel after commencement of the action and work product material
created after commencement of the action.
26
As explained supra in Part I, Mr. Collingsworth and Conrad & Scherer did not
raise any objection to Drummonds subpoenas before the district court much less
a work product objection supported by a privilege log.
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the district court that the burdensomeness issues raised by [Mr. Scarola and
Searcy Denney] need not be considered by the Court until the privilege issues have
been resolved. Id. at 5. Therefore, Mr. Scarola and Searcy Denney requested that
the district court only determine the merits of their blanket work product
objections.
The district court did just that, and denied Mr. Scarola and Searcy Denneys
motion to quash. Doc. 24. With respect to the failure to produce a privilege log,
Judge Middlebrooks agreed that without a privilege log, the Court is left to
speculate as to the propriety of Movants privilege arguments. Id. at 5.
Mr. Scarola and Searcy Denney do not raise this issue in their principal
brief, much less explain why the district courts denial of the motion to quash
should not be affirmed on this alternative ground. Defendants did not address this
aspect of the district courts order either. As such, they waived any argument with
respect to this issue. Doe, et al. v. Drummond Company, Inc., et al., 782 F.3d 576,
612 n.49 (Since Plaintiffs failed to raise any challenges in their initial brief to this
court with regard to this issue, they have abandoned it on appeal.) (citing Access
Now, 385 F.3d at 1330 and Fed. R. App. P. 28(a)(5)).
Even if they had properly raised the issue on appeal, the lack of a privilege
log is fatal to their work product objections. The purpose of [p]aragraph (d)(2)
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of Rule 4527 is to provide a party whose discovery is constrained by a claim of

privilege or work product protection with information sufficient to evaluate such a
claim and to resist if it seems justified. 1991 Amendments, advisory committee
notes. Compliance with Rule 45 requires the production of a privilege log by a
subpoena recipient who raises privilege or work product objections. In re Grand
Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001) (courts consistently have held
that the rule requires a party resisting disclosure to produce a document index or
privilege log and a party that fails to submit a privilege log is deemed to waive
the underlying privilege claim raised under Rule 45); U.S. v. Construction
Products Research, Inc., 73 F.3d 464, 473-74 (2d Cir. 1996) (work product claims
waived by subpoena recipient who submitted an inadequate privilege log and
instead relied on general allegations of privilege); In re Clemente, 17 F. Appx
968, 969 (Fed. Cir. 2001) (We are not persuaded that the district court erred in its
ruling on the waiver of the privilege or the failure to prepare a timely privilege log.
Ascent has therefore not met its burden of establishing that it has a clear and
indisputable right to the issuance of a writ of mandamus.).
Rule 45 is not satisfied where, as here, a subpoena recipients generalized
arguments and blanket objections force both the district court and the party that
issued the subpoena to speculate as to the propriety of Movants privilege
27
This subsection is now codified at Fed. R. Civ. P. 45(e)(2).
{B1962252}
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Page: 58 of 79
arguments. Doc. 24 at 5; see also In re Grand Jury Subpoena, 831 F.2d at 227
(11th Cir. 1987); United States v. Davis, 636 F.2d at 1044 n.20; Avery Dennison
Corp. v. Four Pillars, 190 F.R.D. 1, 1 (D.D.C. 1999) (the filing of a privilege
log . . . has become, by now, the universally accepted means of asserting
privileges in discovery in the federal courts; the general objection that, for
example, a request for production of documents calls for the production of
documents which are privileged is condemned as insufficient).
In fact, one of the cases all of the Appellants urge this Court to follow makes
this point explicit. See Collingsworth Br. at 15 (arguing this Courts decision in
Tambourine was inadequately reasoned due to its failure to consider Carnes v.
Crete Carrier Corp., 244 F.R.D. 694 (N.D. Ga. 2007)); Scarola Br. at 14 (citing
Carnes). The court in Carnes held, consistent with this Courts precedent, that
[w]ork product must be specifically raised and demonstrated rather than asserted
in a blanket fashion. Carnes, 244 F.R.D. at 698 (citation omitted). The party
asserting the attorney-client privilege or the work product doctrine bears the
burden to provide a factual basis for its assertions, and [t]his burden is met
when the party produces a detailed privilege log stating the basis of the claimed
privilege for each document in question, together with an accompanying
explanatory affidavit from counsel. Id. (citation omitted). Because the objecting
party in Carnes had produced a privilege log, the privilege claims were sustained
{B1962252}
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as to the documents listed on the log.
Page: 59 of 79
But the court ordered all responsive
documents not listed on the log to be produced, finding the failure to specify any
remaining documents [on the privilege log] constitutes a waiver of any attorneyclient privilege and work product protection for those documents. Id. at 699.
Mr. Scarola and Searcy Denney did not provide a privilege log or any
specific description of any documents to establish that such documents were,
indeed, protected as work product. See Regency of Palm Beach, Inc. v. QBE Ins.
Corp., 259 F.R.D. 645, 650 (S.D. Fla. 2009) (a real, as opposed to a speculative,
concern must be shown that an attorneys thought processes pertaining to pending
or anticipated litigation will be exposed through discovery, and that burden cannot
be met through conclusory statements) (citation omitted). Rather, they relied on
what they admitted were blanket assertions of privilege. Doc. 23 at 2. This
Circuit has repeatedly rejected such blanket claims as insufficient to meet an
objecting partys burden of establishing the documents sought by a subpoena are
subject to work product protection. Therefore, the district court did not abuse its
discretion in denying Mr. Scarola and Searcy Denneys motion to quash. This
decision should be affirmed.
{B1962252}
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B.
Page: 60 of 79
Mr. Scarola, Searcy Denney, Mr. Collingsworth and Conrad &

Scherer voluntarily disclosed alleged work product to Paul Wolf,
who never agreed to and in fact did not keep such information
confidential.
[T]he work product privilege does not attach automatically to any

document sent to an attorney. Regency of Palm Beach v. QBE, 259 F.R.D. at 650.
That is why an objecting party is required to describe the allegedly privileged
documents with particularity. The failure to provide a privilege log is all the more
fatal to the present appeal because Drummond presented strong evidence that at
least some, if not all, of the documents responsive to the subpoena were disclosed
to a person (Paul Wolf) who had refused to participate in any common interest
arrangement with Mr. Scarola or the other Chiquita MDL plaintiffs counsel, and
therefore cannot be protected as work product. 28
In the district court, Mr. Scarola and Searcy Denney argued that production
of the documents responsive to Drummonds subpoenas would violate the
common interest and confidentiality agreement in the Chiquita MDL litigation.
Doc. 1 at 4.29 Specifically, Mr. Scarola and Searcy Denney urged that [t]he work
product and communications that Mr. Wolf disclosed to Drummond were among
the privileged information that Mr. Wolf received as a member of a common
28
The district court declined to address this issue, having already rejected Mr.
Scarola and Searcy Denneys work product arguments on other grounds. See Doc.
24 at 6 n.2.
29
Again, Defendants made no arguments whatsoever to the district court.
{B1962252}
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interest agreement in the Chiquita Litigation. Doc. 23 at 4. They have repeated

that argument in this Court. See Scarola Br. at 11 n.5 (the documents at issue were
exchanged by a group of counsel with a common legal interest); id. at 16 (the
Chiquita lawyers entered into common interest and confidentiality agreements
pursuant to which the documents and communications at issue were exchanged).
Privileges should be narrowly construed and expansions cautiously
extended. Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990). Although
occasionally termed a privilege itself, the common interest doctrine is really an
exception to the rule that no privilege attaches to communications between a client
and an attorney in the presence of a third person. United States v. Gumbaytay, 276
F.R.D. 671, 673-74 (M.D. Ala. 2011) (citing United States v. BDO Seidman, LLP,
492 F.3d 806, 815 (7th Cir. 2007)). [A]s an exception to waiver, the joint defense
or common interest rule presupposes the existence of an otherwise valid privilege,
and the rule applies not only to communications subject to the attorney-client
privilege, but also to communications protected by the work product doctrine. In
re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th
Cir. 1990) (citation omitted). [T]he burden of establishing that [the common
interest rule] applies, in all its elements, always rests upon the person asserting it.
This showing must be made on a document-by-document basis, and based on
competent evidence, usually through the admission of affidavits, deposition
{B1962252}
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testimony or other admissible evidence. Chevron Corp. v. Donziger, 296 F.R.D.

168, 203 (S.D.N.Y. 2013), reconsideration denied, No. 11 CIV. 0691 LAK, 2014
WL 2608852 (S.D.N.Y. Mar. 4, 2014) (citations omitted).
The only evidence in the appellate record regarding a common interest
agreement, however, is that Mr. Wolf, another lawyer representing a group of
plaintiffs in the Chiquita MDL and with whom purported work product was
shared, refused to participate in any such agreement. Indeed, Mr. Wolf was very
concerned about Mr. Collingsworths conduct and believed it may negatively
affect [the] representation of [Mr. Wolfs] clients in the Chiquita case. Doc. 1729 at 29. Mr. Wolf also believed it was unethical to pay witnesses, particularly
since no bar counsel had approved of the method in any way. Id. Accordingly,
Mr. Wolf does not consider any of the conversations or emails among the
[Chiquita] plaintiffs steering committee about payments to witnesses to be
privileged or protected by work product. Id. at 6.
Mr. Scarola admitted that Mr. Wolf refused to sign the confidentiality
agreement, and . . . declined to accept other ground rules the [Chiquita MDL]
group had agreed to in order to cooperate. Doc. 17-32 at 2; see also id. at 5.
Mr. Collingsworth testified similarly: Operating within the group of lawyers for
the plaintiffs in the Chiquita MDL, all of us, except Wolf, signed a Common
Interest Confidentiality Agreement. Wolf has repeatedly disclosed confidential
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discussions to Chiquita and the world at large in various documents he has filed.
Doc. 17-2 (Collingsworth Decl.) 64 (emphasis in original).30 Mr. Collingsworth
also testified that
[I]n roughly September 2011, the group voted unanimously to exclude
Wolf from our joint discussions, as he was revealing portions of those
discussions to Chiquita in his various inappropriate filings, and he
refused to abide by other rules to which we had agreed governing our
joint prosecution of the cases. Wolf is aware I was an advocate for
taking this position. In at least two different group meetings when
Wolf was present by phone, before we took this action, I expressed
my opinion that Wolf should be excluded from our joint discussions
because his public disclosures were so unprofessional and
inappropriate that it appeared he was sabotaging our litigation, and
had certainly demonstrated that he was grossly incompetent.
Id. at 65.
Accordingly, at least until roughly September 2011, Mr. Scarola, Searcy
Denney, Mr. Collingsworth and Conrad & Scherer included Mr. Wolf in
discussions and communications they claim are work product in the Chiquita
30
Drummond notes that there is no written Common Interest Confidentiality

Agreement in the record, much less an executed one. As one court has stated,
[I]t is certainly prudent practice to execute a written agreement before
significant communications are exchanged. This would eliminate any
doubt about whether the parties to the discussion were pursuing a
common goal with respect to the matters communicated. Without a
written agreement, the partys burden of proving that a statement was
made in the common interest will undoubtedly be more difficult.
Minebea Co. v. Papst, 228 F.R.D. 13, 16 (D.D.C. 2005) (quoting 2 Stephen A.
Saltzburg, et al., Federal Rules Of Evidence Manual at 501-35-36 (8th ed. 2002)).
{B1962252}
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MDL, including communications regarding witness payments. Id. at 64; Doc.

17-32 at 3. Critically, they did so despite their knowledge that Mr. Wolf (1)
refused to sign the confidentiality agreement, and (2) had revealed other
communications between the Chiquita plaintiffs lawyers that the Appellants
contend should not have been disclosed. Docs. 17-32 at 2 & 5; Doc. 17-2 at
64 & 65.
It is well settled that a litigant waives work product where disclosures were
neither involuntary nor compelled. Stern v. OQuinn, 253 F.R.D. 663, 683 (S.D.
Fla. 2008). Moreover, when disclosure is made in a manner that is inconsistent
with maintaining secrecy against opponents [. . .] even a disclosure to a nonadversary that substantially or materially increases the likelihood that an
adversary will obtain the information results in a waiver of the work product
protection. Bank of Am., N.A. v. Terra Nova Ins. Co., 212 F.R.D. 166, 170
(S.D.N.Y. 2002) (quoting United States v. Am. Tel. and Tel. Co., 642 F.2d 1285,
1299 (D.C. Cir. 1980)).31
31
See also Pruco Life Ins. Co. v. Brasner, No. 10-80804-CIV, 2012 WL 3001570,
at *3 (S.D. Fla. June 28, 2012) report and recommendation adopted, No. 1080804-CIV, 2012 WL 3000235 (S.D. Fla. July 23, 2012) (The majority of courts
however, have recognized that a waiver of work product protection may occur
when disclosure is made in a manner that substantially increases the opportunity
for potential adversaries to obtain the information.); Ecuadorian Plaintiffs v.
Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010) (while work product immunity
is not automatically waived by disclosure of protected material to third parties,
disclosure does waive protection if it has substantially increased the opportunities
{B1962252}
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Here, Mr. Scarola and Mr. Collingsworth testified that they voluntarily
disclosed information and documents they claim are work product to Mr. Wolf,
who had grave concerns about Mr. Collingsworths witness payments and had, in
fact, raised those concerns with both Mr. Collingsworth and Mr. Scarola. Doc. 1729 (Wolf Decl.) at 19, 20, 23 & 29; Doc. 17-30 (Wolf Dep.) at 40:13-41:19.
Importantly, and by their own admission, they did so with full knowledge that Mr.
Wolf affirmatively refused to sign a Common Interest Confidentiality
Agreement and had previously disclosed their communications to the world at
large and their adversaries. Doc. 17-2 (Collingsworth Decl.) 64. Any work
product protection over communications or documents shared with Mr. Wolf is
therefore waived.
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.
On October 30, 2013, over ten months before Drummond served the
subpoenas involved in this appeal, Mr. Scarola affirmatively interjected himself
and the substance of his purportedly privileged communications with Mr.
Collingsworth and Conrad & Scherer into the underlying defamation case.
Specifically, he testified in support of the Defendants unsuccessful opposition to
for potential adversaries to obtain the information) (quoting 8 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure 2024 (3d ed. 2010)).
{B1962252}
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Drummonds motion to compel. Doc. 17-32.32 In pertinent part, Mr. Scarola

testified:
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
killingshe 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. at 3 & 4.
By offering this self-serving testimony regarding the substance of
purportedly privileged communications and documents, Mr. Scarola and Searcy
Denney (as well as Conrad & Scherer and Mr. Collingsworth) affirmatively placed
these communications and documents at issue. Accordingly, they cannot now
withhold these documents on a claim of work product:
We are told that we cannot have our cake and eat it too. What this
means in the privilege context is that a litigant cannot at one and the
same time place privileged matters into issue and also assert that what
has been placed into issue nonetheless remains privileged and not
subject to full discovery and exploration.
32
United States District Court Judge R. David Proctor ultimately granted many
aspects of Drummonds motion to compel, holding, inter alia, that documents
reflecting the fact of witness payments could not be withheld as work product.
Doc. 17-34.
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QBE Ins. Corp. v. Jorda Enterprises, Inc., 286 F.R.D. 661, 664 (S.D. Fla. 2012)
(citation omitted). In other words, a party cannot partially disclose privileged
communications or affirmatively rely on privileged communications to support its
claim or defense and then shield the underlying communications from scrutiny by
the opposing party. In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir.
2000). 33
That is exactly what has happened here. Mr. Scarola offered testimony
claiming his discussions with Mr. Collingsworth concerning witness payments
were merely in the context of providing security to witnesses. That is a material
33
See also United States v. Nobles, 422 U.S. 225, 239-40 (1975) ([W]here, as
here, counsel attempts to make a testimonial use of these materials the normal rules
of evidence come into play with respect to cross-examination and production of
documents. . . . Respondent can no more advance the work product doctrine to
sustain a unilateral testimonial use of work product materials than he could elect to
testify in his own behalf and thereafter assert his Fifth Amendment privilege to
resist cross-examination on matters reasonably related to those brought out in
direct examination.); Ceres Marine Terminals, Inc. v. Director, Office of
Workers Compensation Programs, 512 F. Appx 1014, 1016 (11th Cir. 2013)
(litigant waived work product protection over documents when he placed that
information at issue through an affirmative act for his own benefit) (citing Cox v.
Admr U.S. Steel & Carnegie, 17 F.3d 1386, 1417 (11th Cir. 1994)); JTR
Enterprises, LLC v. An Unknown Quantity of Colombian Emeralds, Amethysts &
Quartz Crystals, 297 F.R.D. 522, 530-31 (S.D. Fla. 2013) (holding that an alleged
work product document that was referred to in a public statement could not be
protected because a party cant selectively cho[o]se which portions of a document
to release to the public and which portions it wishes to assert a privilege);
Johnston v. Dillard Dept. Stores, Inc., 152 F.R.D. 89, 93-94 (E.D. La. 1993) (work
product waived over notes of a meeting where litigant submitted an affidavit of
counsel regarding what evidence was considered at the meeting).
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dispute in this case, and Drummond has presented evidence that the witness
payments were not for security at all, and that Mr. Scarola communicated with Mr.
Collingsworth regarding the prospect of paying witnesses criminal legal fees to
obtain testimony. Doc. 17-33 (July 19, 2011 email attaching Piper Hendricks
Memo). To allow Mr. Scarola to offer a self-serving characterization of alleged
work-product communications, and then withhold from discovery the documents
needed to test the veracity of that characterization, would countenance the
improper use of the work product doctrine as both a sword and a shield. Indeed, in
the context of cases such as this one, where the misconduct of a lawyer is at issue,
it would place lawyers above ordinary litigants, which is not the purpose of the
work product doctrine. See SEC v. Natl Student Marketing Corp., No. 225-72,
1974 WL 415, at *4 (D.D.C. June 25, 1974) (The Hickman rule, as well as the
1970 amendments to the Federal Rules, cannot be viewed as a means by which
attorneys, based solely upon that status, are to be elevated to a preferred position
when involved as parties in the litigation process.).
In this case, all of the Appellants placed purportedly privileged matters at
issue when they offered Mr. Scarolas testimony regarding the substance of
allegedly privileged conversations and documents in support of Mr. Collingsworth
and Conrad & Scherers contention that their payments to fact witnesses were not
in exchange for testimony against Drummond. Doc. 17-32 at 3-5. Therefore,
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they are now properly subject to full discovery and exploration on the same, and
the work product doctrine cannot shield the underlying communications from
scrutiny. QBE Ins. Corp., 286 F.R.D. at 664; In re Grand Jury Proceedings, 219
F.3d at 182.
Appellants conclusory claim that some responsive documents may contain
opinion work product does not change the analysis.34 Opinion work product is
subject to implied waiver when a litigant makes testimonial use of opinion work
product. In Cox v. Admr. U.S. Steel & Carnegie, 17 F.3d 1386, 1422-23 (11th
Cir. 1994), this Court cited In re Martin Marietta Corp., 856 F.2d 619 (4th Cir.
1988), in declining to find a testimonial waiver of opinion work product materials.
In Martin Marietta, the Fourth Circuit found that attorney opinion work product
was not subject to implied waiver in that particular case because testimonial use
has been made of non-opinion work product. 856 F.2d at 625
The Martin Marietta court, however, recognized that actual disclosure of
pure mental impressions may be deemed waiver, and further stated that there
may be indirect waiver [of opinion work product] in extreme circumstances. Id.
at 626. In explaining its holding, the Fourth Circuit acknowledged such a waiver
would occur in the rare case in which a litigant [ ] attempt[s] to use a pure mental
34
Of course, none of the Appellants carried their burden of demonstrating to the

district court that any particular document actually qualified as opinion work
product. See Part III.A, supra.
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impression or legal theory as a sword and as a shield . . . so as to distort the

factfinding process. Id.
That is precisely what is occurring here: the Defendants in the underlying
defamation action Mr. Collingsworth and Conrad & Scherer are a lawyer and
his law firm.
They have wielded the work product doctrine as a sword by
submitting the testimony of their co-counsel describing purportedly privileged

communications and documents, all in support of their claim that their witness
payments were ethical and legal. At the same time, they are using the work
product doctrine as a shield to deny Drummond the ability to discover those
communications and challenge their unilateral characterization of the substance of
these claims. This they cannot do. The rationale behind this rule is all the more
persuasive where, as here, an attorney or law firm is a party and their subjective
state of mind is squarely at issue. See Charles A. Wright & Arthur R. Miller, Fed.
Prac. and Proc. 2026 (Supp. 1994) (Documents that would otherwise be
protected must be produced if the knowledge, mental impressions, opinions, and
advice of a lawyer or law firm are at issue in a litigation to which the lawyer or law
firm is a party.).
{B1962252}
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IV.
Page: 71 of 79
MR. SCAROLA AND SEARCY DENNEYS UNDUE BURDEN ARGUMENT

SHOULD BE REJECTED. 35
Mr. Scarola and Searcy Denneys final argument is that the district court
erred by not quashing the subpoena based on undue burden. Scarola Br. at 17-20.
Specifically, Scarola and Searcy Denney argue that they would have to incur a
significant burden and expense to locate and produce all responsive documents.
Id. at 18 n.8. It is unclear how they could ask this Court to hold the district court in
error in this regard, given that Mr. Scarola and Searcy Denney specifically told the
district court the burdensomeness issues raised by [Mr. Scarola and Searcy
Denney] need not be considered by the Court until the privilege issues have been
resolved. Doc. 23 at 5 (emphasis added). The doctrine of invited error precludes
reversal on this ground. See Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204,
1213 (11th Cir. 2011) (holding the doctrine stands for the common sense
proposition that someone who invites a court down the primrose path to error
should not be heard to complain that the court accepted its invitation and went
down that path.); United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (It is
35
Mr. Collingsworth and Conrad & Scherer do not raise any argument regarding
the burden imposed by Drummonds subpoena, as they lack standing to do so. See
AF Holdings, LLC v. Does 1-162, No. 11-23036-Civ, 2012 WL 488217, at *3 n.1
(S.D. Fla. Feb. 14, 2012) (a subpoena to a third party does not create an undue
burden on the putative defendants because they are not required to produce
anything) (citations omitted).
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a cardinal rule of appellate review that a party may not challenge as error a ruling
or other trial proceeding invited by that party.) (citations omitted).
Mr. Scarola and Searcy Denney admit in their principal appellate brief to
this Court that the parties indicated as part of their briefing on the Motion that the
trial court should address the threshold issue of privilege before considering
burden, and that [i]n retrospect . . . this may not have been the best approach.
Scarola Br. at 20 & n.9. Whatever regret there may be over this decision, the
district court cannot have erred by accepting Mr. Scarola and Searcy Denneys
invitation.
The undue burden argument also fails for additional reasons. In support of
their excessive cost argument, Mr. Scarola and Searcy Denney rely on an affidavit
submitted by John C. Hopkins, a Searcy Denney employee in charge of Searcy
Denneys eDiscovery compliance. Doc. 1-4 at 2 & 3. Citing this affidavit,
they argue that the preliminar[y] estimated cost of subpoena compliance [is]
approximately 750 man hours at a total of $140,000. Scarola Br. at 18. There are
several flaws in this estimate.
First, it is premised on a patently incorrect reading of Drummonds
subpoenas. For example, the Hopkins affidavit wrongly states that category 2 of
the subpoena seeks all communications that Searcy Denney had with any
employee, agent or shareholder of Parker Waichman, LLP. Doc. 1-4 at 17.
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Mr. Scarola and Searcy Denney similarly (and incorrectly) contended that
Drummond seeks all communications, including emails that Searcy Denney had
with Terrence P. Collingsworth or any employee of Conrad & Scherer, LLP.
Doc. 1 at 8. These contentions are simply wrong, as they omit the language
limiting such requests to communications relating to (a) the provision of security
in Colombia or (b) payments to witnesses or any Colombian paramilitary. Doc.
1-2 at Req. Nos 1-8. Sec. & Exch. Commn v. Dresser Indus., Inc., 453 F. Supp.
573, 577 (D.D.C. 1978) affd, 628 F.2d 1368 (D.C. Cir. 1980) (rejecting an undue
burden objection where a subpoena recipient cite[d] a phrase from the subpoena,
taken out of context, and allege[d] that the phrase could be interpreted to require
the production of voluminous materials, and holding that [t]he scope of the
subpoena is clear and Dressers attempts to misinterpret the subpoena so as to
make it appear unreasonable will be rejected).
Furthermore, Mr. Scarola and Searcy Denney are no ordinary, unrelated
non-party witness[es]. Chevron Corp. v. Donziger, No. 11-civ-0691(LAK), 2013
WL 1087236, at **31-33 (S.D.N.Y. Mar. 15, 2013) (denying a request for
reimbursement of estimated costs in the range of $1,060,000 and $1,290,000
where the subpoena recipient was an alleged co-conspirator and its actions and
knowledge will be issues in the case). Indeed, they are co-counsel with Mr.
Collingsworth and Conrad & Scherer and had multiple communications with Mr.
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Collingsworth relating to payments to witnesses in Colombia. More importantly,

Mr. Scarola interjected himself into this case. Doc. 17-32.
Mr. Scarola and
Searcy Denney should not now be heard to complain that Drummond seeks
discovery that directly bears on the statements in Mr. Scarolas testimony,
voluntarily offered in support of the Defendants.
V.
MR. SCAROLA AND SEARCY DENNEYS PETITION FOR WRIT OF

MANDAMUS SHOULD BE DENIED FOR THE REASONS ALREADY DISCUSSED.
As outlined above, Mr. Scarola and Searcy Denneys efforts to quash the
subpoenas should be rejected. The same reasons justify the denial of their petition
for writ of mandamus, but apply with even more force due to the higher standard
applicable to such an exceptional request for relief.
Mandamus is an extraordinary remedy, and it is appropriate only when no
other adequate means are available to remedy a clear usurpation of power or abuse
of discretion by the district court. Mohawk, 541 F.3d at 1055 (quoting In re
Loudermilch, 158 F.3d 1143, 1144 (11th Cir. 1998)). The petitioner seeking the
writ carries the burden of showing that its right to the issuance of the writ is clear
and indisputable. Id. (citation omitted). A writ will not issue merely because
[the petitioner] shows evidence that, on appeal, would warrant reversal of the
district court. Id. (citation omitted). Even if Mr. Scarola and Searcy Denney
convinced this Court that the district court had erred in overruling a claim of
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privilege, that is still insufficient to show their right to the issuance of the writ is
clear and indisputable. Id.
Here, Mr. Scarola and Searcy Denney sought to quash the subpoenas by
making blanket claims of privilege which are unacceptable in this Circuit. They
also failed to prove any common-interest privilege attaching to any particular
document, especially in light of the undisputed fact that many, if not all, of the
responsive communications were shared with Paul Wolfan individual who
expressly refused to enter into any common-interest agreement. Furthermore, Mr.
Scarola placed the substance of his communications with Mr. Collingsworth
regarding payments to Colombian witnesses directly at issue by voluntarily
testifying about them, thereby waiving any protection over the documents which
bear on the veracity of his characterization of those discussions. Mr. Scarola and
Searcy Denney have not demonstrated that the district court erred to reversal in
denying their motion to quash. They certainly have not met the much higher
burden of establishing the district court engaged in a usurpation of judicial power
or clear abuse of discretion. Their petition for writ of mandamus should therefore
be denied.
CONCLUSION
The subpoenas at issue are narrowly tailored to the discovery of evidence the
district court presiding over this defamation case has already ruled is relevant and
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within the scope of discovery. It was therefore the burden of Mr. Scarola and
Searcy Denney to demonstrate to the district court that every document sought by
the subpoena was protected as work product. They did not come remotely close to
meeting that burden. The district courts denial of their motion to quash should be
affirmed.
The Defendants made no objection whatsoever to the subpoenas, and this
Court should therefore not consider any of their arguments, which have all been
waived. The Defendants did not even give the district court the opportunity to
consider their arguments in the first instance. Even were this Court to consider
Defendants belated objections to the subpoenas, they fail for the same reasons as
those made by Mr. Scarola and Searcy Denney.
Drummond respectfully submits that the district court did not usurp its
power, clearly abuse its discretion, or otherwise err to reversal in denying Mr.
Scarola and Searcy Denneys motion to quash. The district courts decision should
be affirmed, and the petition for writ of mandamus filed by Mr. Scarola and Searcy
Denney should be denied.
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Respectfully submitted,
STARNES DAVIS FLORIE LLP
P.O. Box 59812
(205) 868-6000
Fax: (205) 868-6099
Brett Alan Barfield
HOLLAND & KNIGHT
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(305) 789-7661
Fax: (305) 789-7799
{B1962252}
71
Case: 14-15722
Page: 78 of 79
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because, according to the word count function of Microsoft
Word, this brief contains 14,773 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(a)(7)(B)(iii) and 11th Cir. R. 32-4.36 I further certify that
this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been
prepared using Microsoft Word 14-point Times New Roman type.
36
On April 22, 2015, this Court consolidated the petition for writ of mandamus in
Appeal No. 14-15749 with this Appeal. That Order also sua sponte provide[d]
Drummond with 2,000 additional words with which to complete its response
brief.
{B1962252}
72
Case: 14-15722
Page: 79 of 79
CERTIFICATE OF SERVICE
I hereby certify that on May 18, 2015, Appellees Principal Appellate Brief
was electronically filed with the Clerk of the U.S. Court of Appeals for the
Eleventh Circuit and served on counsel of record through the Courts ECF system.

Starnes Davis Florie, LLP
100 Brookwood Place, Seventh Floor
(205) 868-6000
{B1962252}
73

Drummond Brief in Common Interest Privilege Appeal

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Case: 14-15722

Date Filed: 05/18/2015

United States Court of Appeals for the Eleventh

TERRENCE P. COLLINGSWORTH, ET AL.,

William A. Davis III

Date Filed: 05/18/2015

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

Date Filed: 05/18/2015

Conrad & Scherer, LLP (Defendant-Appellant)

Date Filed: 05/18/2015

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

Date Filed: 05/18/2015

Simons, Marco (EarthRights Internationalcounsel for Proposed Intervenors in

s/ H. Thomas Wells, III

Date Filed: 05/18/2015

STATEMENT REGARDING ORAL ARGUMENT

Date Filed: 05/18/2015

Date Filed: 05/18/2015

never agreed to and in fact did not keep such information

Date Filed: 05/18/2015

Access Now, Inc. v. Sw. Airlines Co.,

Date Filed: 05/18/2015

Cardona v. Chiquita Brands Int'l, Inc.,

Date Filed: 05/18/2015

Farnsworth v. Procter & Gamble Co.,

Date Filed: 05/18/2015

In re Steinhardt Partners, L.P.,

Date Filed: 05/18/2015

Pruco Life Ins. Co. v. Brasner,

Date Filed: 05/18/2015

Date Filed: 05/18/2015

United States v. Ross,

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

2 Stephen A. Saltzburg, et al., Federal Rules Of Evidence Manual

Date Filed: 05/18/2015

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

Date Filed: 05/18/2015

Date Filed: 05/18/2015

Denney failed to carry their burden of demonstrating that the documents

Date Filed: 05/18/2015

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

Despite receiving notice of the subpoenas, Mr.

Date Filed: 05/18/2015

Date Filed: 05/18/2015

Date Filed: 05/18/2015

On December 23, 2014, they filed a petition for writ of

mandamus in this Court.

This Court has since consolidated those appellate

Date Filed: 05/18/2015

Indeed, one of these putative intervenors, Marco Simons, submitted an affidavit

Date Filed: 05/18/2015

Statement of the Facts

Date Filed: 05/18/2015

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

Date Filed: 05/18/2015

Background of the Defamation Litigation

The Netherlands government influences or controls the coal Netherlands-based

Date Filed: 05/18/2015

Related Alien Tort Statute Litigation

This Court also recently affirmed this

Date Filed: 05/18/2015

It is therefore important for purposes of this appeal to

understand what evidence Mr. Collingsworth actually has.