I haven’t seen so many lawyers move around this fast since they evacuated my building last year because of a gas leak. Seems like everyone in the Scruggs case either wants someone else’s lawyer or the lawyer wants someone else’s client. Sounds like a writer’s-strike Boston Legal script that didn’t make the cut. Why, next thing you know, Dickie Scruggs is going to say he wants to swap judges . . . oh wait, that’s no joke, he’s already tried that twice, once in his criminal contempt of court prosecution in Alabama (successful) and once in the Renfroe v. Rigsby case in Alabama (unsuccessful so far). With this much mind-changing, I don’t want to get behind these guys in line for ice cream.
By the way, if you’ve got catching up to do, here’s a link to my post Monday on the Langston firm withdrawing from representation of Scruggs. Here’s a link to a post yesterday about Tony Farese asking the court to withdraw as Zach Scruggs’ lawyer, and here’s a link to a post yesterday about Judge Biggers saying no to the request, as well as questioning a move where former counsel to defendant Steve Patterson wanted to represent Dickie Scruggs.
— I know a lot of you are reading hoping to see what take I have on what may or may not be going on with Joey Langston. Do I know? My answer is I don’t know. I hear things, many of them from knowledgeable and credible sources, and I hear these things from sources diverse enough that I would bet you that 90 percent of what I’m hearing turns out to be true — maybe 100 percent — but both back in the day when I was a reporter and now that I’m a lawyer, my bias is for documents, for evidence in my hand. Time has taught me the lesson that getting ahead of the hard evidence and rushing to talk about it is not a good idea.
I’ve used the word "fluid" to describe the current situation — and the lawyer-changing we see going on is a strong indication of how much in flux things are right now, and how many things are in flux — and I’m not comfortable writing about information that has to be classified as rumor at this point. There is a difference between my interpreting written evidence or passing along information directly from the person who knows absolutely for sure, on the one hand, and discussing what I’ve heard that sounds about right, on the other. I also know that oral and informal communications are subject to a feedback loop and to being contaminated by cognitive dissonance, lack of precision and self-authentication. I don’t want this to sound trite or maudlin or preachy, and I hope it doesn’t, because I’m just sayin’. But I keep in mind that I have a duty of fairness, and I keep in mind that real people are involved, folks with families that love them and count on them, folks that might lose their freedom. Maybe these people have done wrong, maybe they haven’t. Fairness is not the same as saying I don’t have an opinion. I can and do have opinions about what goes on, but I want to know for sure what it is folks supposedly have done before I start to form an opinion or say what it is. I’m glad I’ve heard these things and that sources are keeping me informed, don’t get me wrong. But I’m going to continue to wait to discuss publicly until I see documents, or news reports where the reporter has had the time, inclination and resources to nail down the facts. There will be plenty of time to discuss and analyze. You know where to find me. I’m here every day and I will see this thing through — I’ve been following and writing about Katrina and Scruggs and anti-concurrent causation and the Rigsbys and State Farm and all the rest for two years now, and I’ll be here until the cows come home to roost if I need to be.
— I see in the McIntosh v. State Farm case that Judge Senter issued an order about whether State Farm can depose Dickie and Zach Scruggs and whether the Rigsby sisters need to produce certain documents like telephone records. Again, in case you need a refresher — and who doesn’t, sometimes I have to look back myself to remember what I’ve written — here is a lengthy post I wrote back on December 29 about this controversy. Here’s a copy of Judge Senter’s order from yesterday. He was asked to review orders by Magistrate Judge Robert Walker ordering the Rigsbys to produce the documents and that the Scruggses must testify. Senter upheld Walker’s order about the Rigsbys — the phone records are not attorney-client communications but instead only show what numbers were called and when. For non-lawyers, remember that unless a given act is itself intended as a communication — nodding your head, flipping your attorney the bird (who hasn’t done that, or at least wanted to?) — it is not ordinarily considered protected by the attorney-client privilege.
About the depositions of the Scruggses, he wrote:
Much of the argument with respect to the Scruggses’ depositions hinges on their positions that what is involved is subject to the attorney-client privilege, that they are being deposed as “opposing counsel,” and that their rights and defenses are jeopardized in a criminal contempt proceeding pending in Alabama. Yet, as the Magistrate’s Order points out, it is difficult to determine at any stage of the proceedings exactly what roles the Scruggses were playing. The example used by the Magistrate is the statement made at the depositions in April/May 2007 that Richard Scruggs was wearing “two hats”–one as the Rigsbys’ lawyer and the other as their employer. It appears from the record that Zach Scruggs did the same thing on at least one other occasion. How all this connects with their representation of the Plaintiffs is also unclear. This is why the Scruggses’ depositions are appropriate–to ferret through this forest of relationships, especially in terms of the timing of various conduct and activity. Whether substantive information is obtained is largely up to the deponents, who are represented by their own counsel on different fronts.
So the answer is yes to the depositions. But wait, there’s more.
Judge Senter also said he is concerned about the documents State Farm wants the Scruggses to produce. Judge Walker had rejected what he called the Scruggses’ "blanket claims of privilege" with no privilege log being produced to substantiate claims of privilege and allow a document-by-document determination. Judge Senter said "the fact remains that [these assertions of privilege] were raised," and sent these "important issues" back to Walker to resolve.
Judge Senter summed it up this way: "In short, while it is appropriate for the depositions of the Scruggses to be taken, there is no practical sense in the depositions being held at this time." As trial in this case is set for February 25, that doesn’t leave much time to resolve the issues and still take the depositions. What are the odds, do you think, that after Judge Walker resolves the document issues, that the Scruggses will ask for another review of that ruling by Judge Senter? On a scale of certainty, I’d place it somewhere between the sun coming up tomorrow and Wile E. Coyote’s Acme rocket backpack blowing up.