On Monday I wrote about a National Law Journal article discussing Ex rel. Rigsby, the whistleblower lawsuit filed by the Rigsby sisters and Dickie Scruggs against State Farm and others. I said I thought some of the premises of the article were in error. There was a second National Law Journal article on the subject of Scruggs, and this article said I needed a subscription to open it — I wanted to see if it might be of interest. At the time I wrote the other post, I wasn’t sure if I had a subscription and if so, what the password might be, and while I was asking around my office to see if we have a subscription, a day or so passed, and then I saw the very same article linked and accessible at this post at William Childs’ TortsProf Blog. I don’t know what happened to the subscription requirement, perhaps it wears off after the story is a few days old. In any event, I am a strong believer in omens — they seem as good a way to explain the way the world works as any other — and I took this, in addition to the fact that someone asked me yesterday what I thought of the article, as an omen that I should write about the second National Law Journal story.
This story is basically accurate, not completely so. This excerpt is of a part of the story that gives the wrong impression about events involving the Renfroe v. Rigsby lawsuit and the criminal contempt prosecution of Scruggs:
Scruggs, whose own home was destroyed by Katrina, in turn hired the sisters as consultants at $150,000 each.
In fall 2006, Renfroe sued the sisters for return of the documents, and Acker issued a protective order and injunction forcing return of the documents to State Farm. Instead, Scruggs sent them to Hood, saying the order provided an exception for law enforcement sources.
Scruggs also sent the documents to the television program "20/20."
Ironically, the sisters, Cori Rigsby and Kerri Rigsby, had already sent Hood the documents separately.
Enraged at Scruggs’ action, Acker asked Martin, the U.S. Attorney for the Northern District of Alabama, to bring criminal contempt charges against Scruggs and his law firm for allegedly violating his protective order. Martin, after what she called a careful review of the case, declined to bring charges.
"Ironically" is the wrong word. It is not ironic that Hood already had the documents, he had them because the Rigsby sisters, Scruggs’ clients, did a "data dump" of Renfroe claims files and delivered them to Scruggs and also to Hood, who sent provided curbside pick-up service — on the very same day the sisters copied the 15,000 pages of documents! I mean, what are the odds, right? Obviously, Scruggs’ hand was all over this, as it has been with everything to do with the documents. Acker ordered the Rigsby sisters and their agents to return all the copies they themselves had — the order did not purport to pertain to the copies that Hood had, and which Scruggs and the Rigsby sisters knew Hood had. Instead of returning his copies, Scruggs, after conferring with Hood just after Acker’s injunctive order, sent his copies to Hood. It is not "ironic" that Hood happened to have copies — Acker and prosecutors allege that this was clearly a dodge by Scruggs so he could keep the documents out of the hands of Renfroe’s attorneys.
Even though Renfroe’s lawyers were under a protective order and could not disclose the contents of the returned documents to Renfroe or State Farm, Scruggs either didn’t trust them to obey the order or suspected that their actions in other regards would give away the contents of the documents. The latter theory would be most viable if the documents contained nothing especially damaging to State Farm, contrary to what Scruggs and Hood may have implied in negotiations with State Farm. For example, if the lawyers knew the documents were nothing special and decided that Scruggs and Hood were full of bunk, is it possible their actions in regard to other events might have tipped this belief? I can see someone believing this could happen. And once it did happen, the documents’ value as a negotiating tool would be done. This theory could account for Scruggs’ willingness to risk Acker’s ire by sending the documents to Hood, who, one must admit, hardly needed them.
Another bone to pick — Scruggs sent the documents to the ABC program, but that show aired in August 2006, while Acker’s injunction wasn’t entered until December. The story also has a bunch of quotes from professors who think this is all nothing and that it will blow over — I mean, check this out:
Cohen of Fordham said that he handled the only case that went to the U.S. Supreme Court in which someone was sentenced to criminal contempt after prosecution by private prosecutors. In that case, the Supreme Court sided with Cohen and stated that the appointment of a private prosecutor violates the separation of powers doctrine. Young v. U.S., 106 S. Ct. 3270 (1987).
"It’s hard to see how turning over documents to law enforcement violates a court order," Cohen said.
With all respect to Prof. Cohen, that last statement indicates to me that he hasn’t paid very close attention to the facts of this case. You know from what I just wrote above that the quote is a misleading picture of what was going on. Any readers who may be new to this story, feel free to use my blog’s search bar to research the numerous posts I have written about this case, including copies of relevant court documents. These are all publicly available on PACER, but not everyone has a PACER account or operates PACER with ease. Will it all blow over? Maybe, maybe not, but if Scruggs wasn’t pretty worried, he wouldn’t have hired as his attorney John Keker, one of the best criminal defense and courtroom lawyers in this country.