Professional Documents
Culture Documents
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Sara E. Kropf
LAW OFFICE OF SARA KROPF PLLC
1001 G St. NW, Suite 800
Washington, DC 20001
(202) 627-6900
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TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................................................... ii
INTRODUCTION .................................................................................................................................1
STATEMENT OF FACTS ......................................................................................................................2
LEGAL ARGUMENT ...........................................................................................................................8
I.
B.
C.
II.
Sanctions are Also Warranted under Rule 37 Because Defendants Repeatedly and
Willfully Violated This Courts Orders to Preserve All Electronic Evidence.......25
A.
B.
C.
CONCLUSION...................................................................................................................................29
CERTIFICATE OF SERVICE ...............................................................................................................30
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TABLE OF AUTHORITIES
Cases
Page(s)
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Page(s)
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Drummond hereby moves for spoliation sanctions against Defendants pursuant to Rule
37 and this Courts inherent powers.
*
On March 12, 2015, Defendants disclosed to Drummond and this Court that
The effect of the loss of this evidence cannot be overstated. Defendants have repeatedly
demonstrated a refusal to disclose, and indeed lie about, critical facts until they are caught with a
document revealing the truth. The spoliation of
means
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STATEMENT OF FACTS
Mr. Collingsworth also used his IRAdvocates account to correspond with Albert van Bilderbeek
2
Drummond is still in the midst of expedited discovery on the issue of spoliation. Although Drummond made clear
its need to depose him immediately, Defendants refused to put Mr. Collingsworth up for deposition prior to August
17, 2015, and therefore Drummond has not yet had the opportunity to take his testimony. Ex. 1 (July 13, 2015
Correspondence). Other witnesses, including Bill Scherer and Juan Carlos Rodriguez, are presently scheduled to be
deposed the week of August 24. Id. Drummond reserves its right to supplement this motion with additional
evidence it uncovers between now and the evidentiary hearing.
3
In fact,
Defendants told this Court that this was a nontestifying expert witness in the Dole case. Doc. 123 (Apr. 21, 2014
Hrg. Tr.) at 15:4-5. That, too, was apparently false. On May 5, 2015, a California state court ordered Mr.
Collingsworth to disclose this payment recipients identity. Ex. 4 (May 5, 2015 Order). That court-ordered
disclosure allowed Dole to discover that this purported consulting expert is a former employee of a former
Dole subsidiary, and not a consulting expert, but if anything, a fact witness. Ex. 5 (Dole Joint Status
Statement) at 15 (emphasis added).
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regarding the defamatory letter to Itochu (Doc. 62-13), coordinate litigation funding efforts for
Balcero (Doc. 62-9), authorize witness payments (Doc. 174-5), communicate directly with
witnesses (Doc. 101-16), and discuss El Tigres Fiscalia testimony in which he disclaimed any
knowledge of Drummonds complicity with the AUC. Ex. 6 (CS 820-830).
Based on presently available evidence, it appears that Mr. Collingsworth used his Gmail
account for his most sensitive communications. For example,
Device
Status
Ft. Totten Transfer Station makes it easy for residents to dispose properly of solid waste, household hazardous
waste, unwanted electronic equipment and provides personal document shredding. Ex. 8 (Ft. Totten Station
screenshot) (emphasis added).
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Device
Status
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Device
Status
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Device
Status
What is more, shortly after Drummond began serving discovery requests in this case,
On
February 28, 2013, Drummond served its First Request for Production of Documents, and one of
those requests sought all of Mr. Collingsworths communications with Llanos Oil or its
principals, Hendrik and Albert van Bilderbeek. Doc. 43-6 at Req. No. 43. Production of those
communications would reveal the fact that Mr. Collingsworth assisted Albert van Bilderbeek in
funneling approximately $100,000 to Jaime Blanco, a fact Mr. Collingsworth had previously lied
about during the course of Balcero. Doc. 174 at 18-20. On April 3, 2013, Drummond served its
second set of requests for production, one of which requested all of Mr. Collingsworths emails
with Ivan Otero. Doc. 43-12 at Req. No. 8. Of course, it is now represented by Defendants that
Otero served as the conduit for not only the payments to Blanco, but also monthly payments to
El Tigre and Samario, facts which Mr. Collingsworth also concealed and lied about in Balcero.
Doc. 174 at 5-20.
But before a single email was produced by Defendants in this case,
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Additionally, the emails and files of other members of Mr. Collingsworths litigation team, including Daniel
Kovalik, Francisco Ramirez Cuellar, Rebecca Pendleton and Ivan Otero have not been preserved or searched, in
direct violation of this Courts express orders. Doc. 105; Doc. 111; Doc. 123 (Apr. 21, 2014 Hrg. Tr.) at 19:10-18;
Doc. 119; Doc. 101-4 at 10 (Daniel Kovalik, Francisco Ramirez Cuellar, Rebecca L. Pendleton, and Lorraine M.
Leete are part of my current or former legal teams); Doc. 69 at 51 (Ivan Otero is a key member of our
Colombian team and a member of our legal team).
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happened here: key evidence mysteriously disappeared while in Defendants sole custody or was
never preserved in the first place. Given these undisputed facts, only two questions remain for
the Court: (1) whether Defendants conduct with respect to this spoliation is sufficient to impose
sanctions, and if so, (2) what sanction should be imposed. In light of the repeated and serious
pattern of spoliation by Defendants, as well as the irreversible prejudice to Drummond, the entry
of a default judgment against Defendants is the only appropriate sanction.
I.
Defendants
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searched [and in this case, preserved.]) (quoting Zubulake v. UBS Warburg LLC, 229 F.R.D.
422, 432 (S.D.N.Y. 2004)). Defendants have never produced a litigation hold letter in this
litigation.
B.
Federal law governs the imposition of sanctions for spoliation of evidence in a diversity
suit because spoliation sanctions are an evidentiary matter. Flury, 427 F.3d at 944. [A] party
moving for sanctions must establish, among other things, that the destroyed evidence was
relevant to a claim or defense such that the destruction of that evidence resulted in prejudice. Eli
Lilly & Co. v. Air Exp. Intern. USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010) (citing Flury, 427
F.3d at 943). In addition to showing relevance and prejudice, the Eleventh Circuit requires a
showing of bad faith to support sanctions for spoliation: While this circuit does not require a
showing of malice in order to find bad faith, mere negligence in losing or destroying records is
not sufficient to draw an adverse inference. Mann v. Taser Intl, Inc., 588 F.3d 1291, 1310
(11th Cir. 2009).
The Eleventh Circuit also has explained . . . that in evaluating the need for sanctions,
federal courts look to factors enumerated in state law, because federal law does not set forth
specific guidelines regarding sanctions for spoliation. Ray v. Ford Motor Co., 792 F. Supp. 2d
1274, 1279 (M.D. Ala. 2011) (citing Flury, 427 F.3d at 944). Accordingly, when deciding
whether to impose spoliation sanctions, Alabama federal courts often look to and apply the
factors delineated by the Alabama Supreme Court:
(1) the importance of the evidence destroyed; (2) the culpability of the offending
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numerous misrepresentations by the Defendants both to Drummond and this Court. And as
are during critically relevant time
explained above,
periods in this case.
This defamation case arose when Defendants wrote a series of letters to Drummonds
customers and business partners stating as objective facts that Drummond conspired with a
terrorist organization and is guilty of mass murder and major human rights crimes. Defendants
premise their defense on the contention that Mr. Collingsworth had a subjective belief in the
truth of those statements because he reasonably relied on the testimony of several Colombian
paramilitary witnesses. Given this defense, evidence of substantial payments to these witnesses
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is clearly relevant to his reasonable belief in the truthfulness of the paramilitary testimony. It is
also plainly relevant to the credibility of these witnesses, should their testimony be offered to the
jury.
One of those witnesses is Jairo de Jesus Charris. It is now known that Defendants have
been paying Charris a monthly salary since at least July 2009. Defendants and their team had
been meeting with Charris for some time prior to thatand prior to Charris ever providing
testimony claiming Drummonds involvement with paramilitaries.
.
Additionally, Drummond has already outlined for the Court the fact that paramilitaries El
Tigre and Samario never claimed to have knowledge regarding Drummond until their criminal
lawyer, Ivan Otero, was promised a contingency fee in the Drummond cases around December
of 2008.
.
coincide with declarations
relied upon9 and the payments made to El Tigre, Samario, and Jaime Blanco.
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importance of
witness payments were for security. Ex. 15 (May 21, 2015 Hrg. Tr. Excerpt) at 27:9-13 (THE
COURT: . . .
.).
Without doubt, there is relevant evidence in the
, and Drummond is severely prejudiced by the loss of that evidence. See
Evans, 2010 WL 206141, at *11 (imposing sanctions for plaintiffs burning of her computer that
contained emails and her diary/narrative of events at issue in the case and explaining that
[t]here can be little doubt that evidence on plaintiffs destroyed computer was important
because it would have filled in the months-long gaps in her narrative/diary.).
2.
Prejudice to Drummond.
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the reason for the payments. Given his record of misrepresentations to Drummond and Court in
this matternot to mention his interest in the outcomerequiring Drummond to rely solely on
Mr. Collingsworths testimony for any fact in this case is extremely prejudicial. Indeed, were it
not for the discovery
would still be left to believe that they had found the shortest way to the truth by directly asking
Mr. Collingsworth what witnesses were paid and receiving the answer that it was exactly three.
Doc. 123 (Apr. 21, 2014 Hrg. Tr.) at 30:1-31:19.
Because the spoliated evidence is now irretrievable, Drummond has been denied the
to test and challenge Defendants
ability
claim that the witness payments were not in exchange for testimony. This has become a key
issue in the litigation; spoliation of evidence related to this issue has caused substantial prejudice
to Drummond. See Graff v. Baja Marine Corp., 310 F. Appx at 302 (explaining that defendants
suffered severe prejudice due to plaintiffs [spoliation] conduct because the [destroyed
evidence] was the critical piece of evidence in this case and because defendants were denied the
opportunity to test the evidence); Computer Assocs. Intl v. Am. Fundware, Inc., 133 F.R.D. 166,
170 (D. Colo. 1990) (ordering default judgment and explaining that [d]estroying the best
evidence relating to the core issue in the case inflicts the ultimate prejudice upon the opposing
party).
3.
Defendants active disposal of evidence and their complete failure to preserve other
evidence bears all the hallmarks of bad faith conduct. Eli Lilly, 615 F.3d at 1318. To show bad
faith, Drummond need not have evidence of intentional destruction of evidence because proof
of malicious destruction of evidence would rarely be available where one party has full control
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of the evidence. Britton v. Wal-Mart Stores East, L.P., No. 4:11-cv-32, 2011 WL 3236189, * 13
(N.D. Fla. June 8, 2011). There is no dispute that all of the evidence at issue in this motion was
in the full control of Defendants.
As an initial matter, Defendants did not preserve evidence for this litigation.
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.
Without even beginning to test the credibility of these explanations, the simple fact
remains:
Moreover, Defendants have not produced a single shred of objective evidence to support
their bizarre story
Prior to
Collingsworth had already received two requests for production
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Defendants expert
testified that he did not
and that
Id. at
Id. at
158:10-12.
Defendants uncorroborated story would have this Court believe that
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robbery. Id. at *8. He also failed to take any precautions to preserve the video diaries. Id. The
court concluded that the plaintiffs explanation for the alleged loss of video diaries is unworthy
of belief and is an attempt to mislead this Court and opposing counsel about this evidence. Id.
Because of this and other discovery abuses, the court imposed terminating sanctions and
dismissed the plaintiffs claims.
Bad faith can also be inferred where the spoliator possessed the motive and opportunity
to try to tamper with the evidence. Bashir v. Amtrak, 119 F.3d 929, 932 (11th Cir. 1997). The
discovery of
would be very harmful to Defendants, not only in this case but in their numerous other cases
premised on the testimony of Colombian paramilitaries. In addition, all of the evidence at issue
was within Defendants sole control. They had both the motive and opportunity to destroy it or
let it be disposed of without making the required effort to preserve it.
Defendants bad faith is also reflected by their deliberate concealment of the spoliation.
Defendants repeated misrepresentations regarding the scope, nature and extent of their witness
payments are well documented. Docs 174, 190 & 243. What Drummond did not know until
March 12, 2015, is that the Defendants also repeatedly lied regarding what documents they
actually had in their possession. Indeed, if Defendants story is to be believed, and Defendants
then that means Defendants
made numerous misrepresentations to Drummond, this Court, and other federal courts regarding
what documents they had in their possession.
represented that they had searched all of their files,
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simultaneously and falsely representing that no emails or documents had been deleted, and that
they had in their possession all of the documents Drummond had subpoenaed from third parties:
Date
Representation
Conrad & Scherer, LLP represents to the United States District Court for
the District of Columbia that in his capacity as Defendant in the libel
action and as counsel in the Balcero litigation, Mr. Collingsworth has
searched the files of IRAdvocates and has never taken the position that he
would not search IRAdvocates files. Doc. 1 in Drummond Co., Inc. v.
Collingsworth, et al., 2:14-mc-00621-RDP at n.1.
Also on August 16, Christian Levesque, a Conrad & Scherer lawyer and
counsel of record in Balcero, signs a sworn declaration testifying that Mr.
Collingsworth and his staff had searched all of IRAdvocates files for
responsive, nonprivileged documents in both this libel action and the
Balcero litigation. Ex. 23 (Aug. 16, 2013 Levesque Decl.) 2.
If these representations are true, and Defendants searched their files, then
Defendants knew as of August 16, 2013, that
September
2013
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April 2, 2014
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In the end, this is a case of knowing and willful disregard for the clear obligation to
preserve evidence that was solely within the possession and control of the Defendants. Swofford
v. Eslinger, 671 F. Supp. 2d at 1282 (concluding that bad faith is clear and imposing sanctions
for spoliation, including when the gun at issue in the case was returned to the manufacturer
rather than preserved). Not only that, Defendants misled both Drummond and this Court about it
for over a year.
4.
Fundamental Fairness.
prior
to these payments where these and other witnesses disclaim any knowledge about Drummond,
but this Court will never be able to see it. Fairness demands that Defendants not benefit from
their spoliation efforts and failure to preserve critical evidence.
5.
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The final factor for the Court to consider under Alabama law is whether there are
alternative sources of the missing and destroyed information. Although some
were obtained from third parties (over Defendants repeated objections to this
effort), they are far from a reliable or complete set. Plus,
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Entry of a default judgment under this Courts inherent authority is more than justified.
II.
Sanctions are Also Warranted under Rule 37 Because Defendants Repeatedly and
Willfully Violated This Courts Orders to Preserve All Electronic Evidence
In April 2014, this Court twice ordered Defendants to preserve all electronic evidence
related to their litigation against Drummond. After assuring the Court they would do so, Doc.
108 at 8, Defendants repeatedly and willfully violated these orders
A.
On April 3, 2014, one day after Drummond filed an Emergency Motion for Sanctions
(Doc. 101) requesting that Defendants hard drives be mirrored to prevent the loss or destruction
of evidence, the Court entered an order stating:
Defendants are DIRECTED to maintain and preserve all hard drives and email
accounts, in their present form, which have been utilized by Defendants litigation
team during their entire pursuit of litigation against Drummond under further
direction from the Court.
Doc. 105 (Apr. 3, 2014 Text Order). Following a hearing on April 21, the Court denied
Drummonds request for forensic imaging of Defendants computers, but reiterated its previous
preservation order:
Defendants SHALL continue to maintain and preserve in their present form all
computer servers, hard drives, email accounts, and all other electronic files or data
storage systems which have been utilized by Defendants litigation team during
their entire pursuit of litigation against Drummond.
Doc. 119 (Apr. 21, 2014 Order), at 1.
There is no ambiguity in these orders. Defendants were ordered to preserve all electronic
data, including hard drives and email accounts, used by any member of their litigation team in
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Had Defendants followed the Courts ruling, Conrad & Scherer would have copied all of all
these critical pieces of evidence immediately. Their failure to do so, resulting in the loss of
evidence, violates both the letter and the spirit of the Courts orders. This violation is even more
severe given the fact that the Court gave Defendants the benefit of the doubt in ordering them to
preserve their electronic data rather than ordering the independent forensic imaging requested by
Drummond.
C.
To warrant the sanction of default under Rule 37, Drummond must show that these
violations were committed willfully or in bad faith. Malautea, 987 F.2d at 1542. A violation
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caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37
default judgment or dismissal. Id. For the following reasons, Defendants violations were
committed willfully and in bad faith.
First, the Courts orders were clearmandating preservation of all electronic evidence,
including hard drives and email accounts, for any member of Defendants litigation team. At no
time did Defendants request a clarification of the Courts order or indicate that they were unable
to comply with it. They also did not inform the Court during the hearing on the Emergency
but rather
, but rather
,
. Ex. 9 (Williams Dep.) at 241:
).
Fourth, there is no reason why Defendants were unable to comply with the Courts order.
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Malautea, 987 F.2d at 1542 (identifying an inability to comply as a reason to excuse noncompliance with court order). Defendants hold themselves out as a highly reputable law firm
which has the resources, experience, and legal insight to handle the most complex factual and
legal issues at any stage of the dispute. Doc. 187 at 4; Ex. 16. They clearly do not lack the
financial wherewithal to preserve this evidence, as they have retained at least four law firms to
represent them in this litigation and 13 lawyers have entered an appearance on their behalf.
There is simply no reason why Defendants could not have complied with these orders, especially
given the gravity of the circumstances which led the Court to enter them.
Fifth, this
for example,
destruction policy.
Sixth, Drummond sought forensic imaging of Defendants computers and email accounts
in its Emergency Motion for Sanctions on April 2, 2014. Defendants were on notice that
forensic imaging was a possible outcome of that motion (which was denied without prejudice).
The Court effectively gave Defendants a second chance by denying Drummonds motion.
Defendants misled the Court into denying Drummonds motion and then took advantage of the
Courts ruling to engage in additional spoliation.
Seventh, Collingsworth is a lawyer; Conrad & Scherer is a law firm. These are
sophisticated parties who are well aware of their legal obligations to preserve evidence and the
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steps needed to do so. A party deemed to have knowledge as to the importance of evidence for
litigation will be held to a higher standard with regards to spoliation. Cooper v. Toshiba Home
Tech. Corp., 76 F. Supp. 2d at 1275. Defendants complete failure to take any steps to comply
with this Courts Orders and preserve
should not be excused.
CONCLUSION
Sanctions for discovery abuses are intended to prevent unfair prejudice to litigants and
to insure the integrity of the discovery process. Flury, 427 F.3d at 944. It is difficult to
conceive of a situation where a partys affront to the integrity of the judicial process could be any
more plain: Defendants have willfully disobeyed six court orders, Doc. 174-22 (Mar. 8, 2012
Balcero Mem. Op.); Doc. 63; Doc. 105; Doc. 111; Doc. 123 (Apr. 21, 2014 Hrg. Tr.) at 19:1018; Doc. 119, and have repeatedly lied in response to direct questions from a federal judge. Doc.
123 (Apr. 21, 2014 Hrg. Tr.) at 30:1-31:19; Doc. 174-3 (Mar. 8, 2012 Hrg. Tr.) at 8:20-9:7. It is
also difficult to imagine a case where a plaintiff has been more unfairly prejudiced. One of the
primary issues to be decided by the jury in this case is Mr. Collingsworths subjective state of
mindhis subjective intent in paying the witnesses upon whom he relies for the truth of his
defamatory statements and his subjective belief in those witnesses testimony.
Mr.
Collingsworth has demonstrated the propensity to lie repeatedly about critical facts in this case,
only disclosing them when a document appears revealing the truth. It is now known that
have been
irretrievably lost due to the affirmative acts of the Defendants, leaving the Court and Drummond
to rely solely on the testimony of Mr. Collingsworth to fill in the gaps. The prejudice of this
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result is incurable, and it undoubtedly cripples to the Court and Drummonds efforts to uncover
the truth. Default is the only appropriate outcome.
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that on July 23, 2015, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system which will send notification of such filing to the
following:
Bradley J. Smith, Esq.
Eric D. Bonner, Esq.
Clark, Hair & Smith, P.C.
1000 Urban Center Drive
Suite 125
Birmingham, Alabama 35242
Christopher S. Niewoehner
Kendall Enyard
Savannah E. Marion
STEPTOE & JOHNSON, LLP
115 S. LaSalle Street
Suite 3100
Chicago, IL 60603
Tel: (312) 577-1240
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