Collingsworth Redacted Response To Motion For Sanctions

FILED
Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 1 of 43
2015 Mar-05 PM 07:08

U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DRUMMOND COMPANY, INC.,

Plaintiff,
vs.
TERRENCE P. COLLINGSWORTH,
individually and as agent of Conrad &
Scherer, LLP; and CONRAD & SCHERER,
LLP,
Defendants.
Case No. 2:11-cv-3695-RDP
DEFENDANTS RESPONSE BRIEF TO DRUMMONDS RENEWED MOTION FOR

SANCTIONS AND REQUEST FOR AN EVIDENTIARY HEARING
Kenneth E. McNeil, Pro Hac Vice
Texas State Bar No.: 13830900
Stuart V. Kusin, Pro Hac Vice
Manmeet S. Walia, Pro Hac Vice
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: 713/651-9366
Facsimile: 713/654-6666
Attorneys for Terrence P. Collingsworth and Conrad & Scherer LLP
3572882v1/014368
Table of Contents
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Collingsworths Earlier Incorrect Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Overview of the Role of Witness Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Overview of the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
RELEVANT DISCOVERY BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I.
A DEFAULT JUDGMENT SHOULD NOT BE ENTERED UNDER EITHER

RULE 37 OR THE COURTS INHERENT POWER. . . . . . . . . . . . . . . . . . . . . . . . .15
A. Legal framework for sanctions under Rule 37 and courts inherent authority. 15
1.
Rule 37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.
Courts inherent authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
B. The standards for entering a default judgment under Rule 37 or the courts
inherent authority are not satisfied here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
1.
No Court order in this case has been violated. . . . . . . . . . . . . . . .. . . . 19
2.
The incorrect statements made by Mr. Collingsworth to the Court in

April 2014 were not made in bad faith. . . . . . . . . . . . . . . . . . . . . . . . . .20
3.
Drummond has not been prejudiced because defendants complied

with the October 15, 2014 Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.
The rest of the storythe necessary role of witness payments in

Colombia in order to obtain the truth. . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. A default judgment cannot be entered against Conrad & Scherer because there
is no evidence that Conrad & Scherer acted in bad faith. . . . . . . . . . . . . . . . . . . 30
II.
ALTERNATIVE RULE 37 SANCTIONS SOUGHT BY DRUMMOND ARE NOT

WARRANTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 31
A.
Rule 37 sanctions must bear a close relationship to the discovery misconduct

at issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
ii
B.
III.
Drummond has not demonstrated that the least punitive sanction would not
suffice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
THE COURT SHOULD DEFER ITS RULING UNTIL AFTER THE CLOSE OF
DISCOVERY OR UNTIL THE CASE IS OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
iii
Table of Authorities
Cases
Atchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071 (9th Cir. 1998) .............. 18
Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480 (11th Cir. 1982) .............................................. 16
Barnes v. Dalton, 158 F.3d 1212 (11th Cir. 1998) ....................................................................... 17
Bonds v. District of Columbia, 93 F.3d 801 (D.C. Cir. 1996) ...................................................... 16
Brigham Young Univ. v. Pfizer, Inc., No. 2:06-CV-890 TS BCW, 2010 WL 3394665 (D. Utah
Aug. 27, 2010) .................................................................................................................. 34
Brooks v. Hilton Casinos Inc., 959 F.2d 757 (9th Cir. 1992) ....................................................... 32
Buchanan v. Bowman, 820 F.2d 359 (11th Cir. 1987) ................................................................. 16
Buffalo Carpenters Pension Fund v. CKG Ceiling & Partition Co., 192 F.R.D. 95 (W.D.N.Y.
2000) ................................................................................................................................. 23
Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) ......................................................................... 17
Caldwell v. Cablevision Sys. Corp., 984 N.E.2d 909 (N.Y. 2013) ............................................... 29
Carroll v. Jaques Admiralty Law Firm, P.C., 110 F.3d 290 (5th Cir. 1997)................................ 33
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ...................................................................... 17, 18
Chilcutt v. U.S., 4 F.3d 1313 (5th Cir. 1993) .......................................................................... 21, 22
Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1997) .......................................... 30
Compton v. Alpha Kappa Alpha Sorority, Inc., 938 F. Supp. 2d 103 (D.D.C. 2013)................... 18
CPR Assocs., Inc. v. Se. Penn. Chapter of Am. Heart Assn, No. CIV. A. 90-3758, 1992 WL
229296 (E.D. Pa. Sept. 9, 1992) ....................................................................................... 31
Creative Dimensions In Mgmt., Inc. v. Thomas Grp., Inc., No. Civ. A. 96-6318, 1999 WL
135155 (E.D. Pa. Mar. 11, 1999) ...................................................................................... 34
Curtin v. Curtin, 90 F.R.D. 582 (N.D. Ohio 1981) ....................................................................... 23
DOnofrio v. SFX Sports Group, Inc., 06-cv-687, 2010 WL 3324964 (D.D.C. Aug. 24, 2010).. 34
Davis v. Grant Park Nursing Home, LP, No. 1:08-CV-01764 PLF, 2010 WL 4642531 (D.D.C.
Nov. 9, 2010) .................................................................................................................... 33
iv
Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298 (11th Cir. 2009) ...... 17, 20
English v. 21st Phoenix Corp., 590 F.2d 723 (8th Cir. 1979) ...................................................... 32
Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72 (1st Cir. 2009)............................................... 33
Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002) .................................................. 22
Gratton v. Great Am. Commcns, 178 F.3d 1373 (11th Cir. 1999) ........................................ 21, 22
Haskell v. Philadelphia Transp. Co., 19 F.R.D. 356 (D. Pa. 1956).............................................. 23
In re Amtrak Sunset Limited Train Crash in Bayou Canot, AL on Sept. 22, 1993 (In re Sunset
Limited), 136 F. Supp. 2d 1251 ............................................................................... 21, 22
In re Asbestos II Consolidated Pretrial Proceedings, 124 F.R.D. 187 (N.D. Ill. 1989) ........ 23, 24
In re Brican Am. LLC Equip. Lease Litig., 977 F. Supp. 2d 1287 (S.D. Fla. 2013) ............... 17, 18
In re Grand Jury Proceedings, 117 F. Supp. 2d 6 (D.D.C. 2000) ................................................ 31
In re Prosser, Bankr. No. 0630009, 2011 WL 6440879 (Bankr. D.V.I. Dec. 20, 2011)...... 28, 29
Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) ......... 16, 31, 32
JZ Buckingham Invests. LLC v. United States, 77 Fed. Cl. 37 (2007) .......................................... 34
Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536 (11th Cir. 1993) .................................... 21, 22
Markham v. Nat'l States Ins. Co., No. CIV.02-1606-F, 2004 WL 3019308 (W.D. Okla. Jan. 8,
2004) ................................................................................................................................. 32
Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332 (11th Cir. 2002) ............ 21, 22
Natl Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976) .................................... 16
OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344 (11th Cir. 2008) ................... 23
Platypus Wear, Inc. v. Horizonte Fabricacao Distribuicao Importacao Exportacao Ltda, No. 0820738-CIV, 2010 WL 625356 (S.D. Fla. Feb. 17, 2010) ................................................. 34
Reffett v. C.I.R., 39 T.C. 869 (T.C. 1963) ..................................................................................... 29
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002)........................ 33
Resolution Trust Corp. v. Thomas, No. 92-2cv-084, 1995 WL 261693 (D. Kan. Apr. 11, 1995)
..................................................................................................................................... 23, 24
Schwartz v. Million Air, Inc., 341 F.3d 1220 (11th Cir. 2003) ..................................................... 23
v
Scipione v. Advance Stores Co., 294 F.R.D. 659 (M.D. Fla. 2013).............................................. 15
Spence v. Maryland Cas. Co., 803 F. Supp. 649 (W.D.N.Y. 1992) ............................................. 23
Thomas v. Tenneco Packaging Co., 293 F.3d 1306 (11th Cir. 2002)........................................... 18
Tourgeman v. Collins Fin. Servs., Inc., No. 08CV1392-JLS NLS, 2012 WL 28289 (S.D. Cal.
Jan. 5, 2012) ...................................................................................................................... 33
United States v. Certain Real Property Located at Route 1, Bryant, Ala., 126 F.3d 1314 (11th
Cir. 1997) .................................................................................................................... 20, 23
United States v. Hilburn, 625 F.2d 1177 (5th Cir. 1980).............................................................. 31
United States v. Honeywell Int'l Inc., 281 F.R.D. 27 (D.D.C. 2012) ............................................ 33
United States v. Real Property Known As 200 Acres of Land Near FM 2686 Rio Grande City,
Tex., 773 F.3d 654 (5th Cir. 2014) .................................................................................... 16
United States v. Singh, 291 F.3d 756 (11th Cir. 2002) ................................................................. 31
United States v. Varnado, 447 F. Appx 48 (11th Cir. 2011) ....................................................... 16
Vaca v. Rio Props., Inc., No. 2:08-CV-00940-RLH, 2011 WL 830519 (D. Nev. Mar. 3, 2011) . 32
Videojet Sys. Intl, Inc. v. Eagle Inks, Inc., 251 F.3d 170 (Fed. Cir. 200) .............................. 21, 22
Wallace v. McGlothan, 606 F.3d 410 (7th Cir. 2010) .................................................................. 21
Wandner v. Am. Airlines, Inc., No. 14cv-22011, 2015 WL 145019 (S.D. Fla. Jan. 12, 2015).. 18,
21
Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110 (2d Cir. 2009) .............................. 30
Worldcom Network Servs., Inc. v. Metro Access, Inc., 205 F.R.D. 136 (S.D.N.Y. 2002) ............ 23
Zocaras v. Castro, 465 F.3d 479 (11th Cir. 2006)........................................................................ 22
vi
BACKGROUND1
There are great ironies in Drummonds motion for sanctions:
Drummond suggests that payments for protection of witnesses in Colombia are

highly improperwhen there is no evidence that the payments impact any
testimony, the threats to Colombian witnesses are so commonplace that the only
way to protect the truth is to protect the witness, and there is law that witness
payments for this purposes are legal and ethical.
Drummond argues that there was a bad faith motive by Mr. Collingsworth in
hiding witness protection paymentsbut there is no evidence of that. To the
contrary, the defendants have voluntarily disclosed the payments for witness
protection at issue here as soon as it was clear the Court deemed them
discoverable.
The witness protection issue goes merely to credibility of the witnesses who
received the payments or benefitted from them indirectlysomething the jury
must determine at trial. That record has been corrected long before trial.
The only real harm is to Mr. Collingsworths credibility for not making things
clear sooner.
The ultimate tragic irony would be that the absurd capital punishment sanction sought
by Drummond would ensure the defendants right to prove the truth of Drummonds own
misconduct would never get to trial. Drummond would win a disparagement case it instigated
against the defendantswithout giving the defendants a chance to defend themselves with the
truth. The truth or falsity of the claims made is ultimately at issuenot the declarant.
It is very important in this case to get to the truth. That is the defendants goal.
Unfortunately, some of Mr. Collingsworths statement were inaccurate and did not advance this
case toward the truth. Those incorrect statements have been corrected in supplemental
interrogatories, document responses, and privilege logs.
The bullets used in the Background section are merely for the ease of the reader. They are not an effort to avoid
this Courts page limitation. If the bullets are removed from Background section, the text of the brief is still under
thirty-five pages. It is the Defendants understanding that the Court has already permitted thirty pages, see Doc. 182,
and the Defendants have assumed that the Court will grant the parties joint motion for five additional pages filed
yesterday. Doc. 185.
The Court must now confront two issues:
The first arises from in-court statements Mr. Collingsworth made to the Court
indicating that security payments had been made to the families of only three
Colombian witnesses. This statement was wrong and inaccurate.
The second issue arises because Drummond now seeks to punish Mr.
Collingsworth and his law firm for the false statements by receiving a grant of
judgment in its favor in a defamation suit Drummond is prosecuting on its own
behalf.
The Court will judge Mr. Collingsworths statements as it must. But thoughtful analysis
will show his wrongful statements had no real deleterious effect on Drummonds lawsuit. Even
though the statements were wrong, Mr. Collingsworths error is irrelevant to the truth or falsity
of the statements Drummond claims are defamatory. Drummond either did, or did not, engage in
Colombian human rights abuses. Furthermore, no prejudice has been done in light of this selfreporting at this early stage of discovery.
Overview of the Facts
A. Mr. Collingsworths Earlier Incorrect Statements
The evidence on Mr. Collingsworths statements shows they were wrong, but Drummond
both misconstrues the context and timeline of those incorrect statements and overblows their
impact on this case: Mr. Collingsworth did state, on repeated occasions, that the only payments
related to witnesses were relocations of families of three witnesses.
That was corrected after the October 15, 2014 Orderwhich vastly expanded the
definition of both payment and witness.
At that point, two types of other indirect payments witnesses received were
disclosed:
o
A list of exhibits is attached hereto as Exhibit 1.
But this Court knows that a human rights lawyer

in Colombia has a very thorny path to maneuver:
Saying too much can hurt witnesses.
Saying too little can protect the witnesses, but hurt the attorneys credibility.
Either being too precise or too general can become problematic.
Indeed, this Court has been facing precisely the same issues. It wants to protect
witnesses, but it wants the truth from witnesses. It reserved judgment on how to deal with this
thorny path in the early stages of this case, but it recently decided in favor of extremely broad
disclosure in its October 15, 2014 Orderwith the protection of a privilege log to prevent overdisclosure.
Even if this Court concludes that Mr. Collingsworth made misjudgments regarding
clarifying the record, those misjudgments were made in a difficult context, and as trial is still far
away, there has been no procedural harm to Drummond. Furthermore, the recent exhaustive
efforts of the defendants to comply with the Courts October 15, 2014 Order are exemplary.
3
Indeed, once the complexities of the discovery and privilege issues became clear, defendants
essentially replaced their small insurance defense counsel with a strong litigation team that spent
over $1 million doing a thorough document review. Ex. 3, 9, 11, 13 (Frevola Aff.). Over
12,800 documents were placed on a 2,400-page privilege log within a few short weeks after the
sea-change in language in the Courts October 15, 2014 order. Moreover, the Court is also aware
of the sensitive work-product concerns, which means that defendants cannot defend themselves
adequately without revealing work product that prejudices the innocent plaintiff clients
represented in the underlying Drummond cases yet to be tried.
B. Overview of the Role of Witness Payments
Conrad & Scherer is a highly reputable law firm in Florida, which has never been
sanctioned in its almost 40-year history. Ex. 4, 3 (William Scherer Jr. Aff.). However, it is no
surprise that Drummond is using Mr. Collingsworths statements to seek capital punishment
on all the defendants liability defenses. Drummond does not want the ultimate truth to come out.
The truth is that these payments were meant to protect witnesses so that the Court ultimately
does get the truth. Conrad & Scherer has worked hard and spent its own money to do that.
Indeed, the big elephant in the room in this case is how the Court is to hear the real truth
from witnesses when there is so much witness intimidation in Colombia:
Without witness protection and assistance in this dark environment, there is in all
likelihood no chance of getting to the truth.
The risk of witness intimidation by Drummond in these Drummond cases is

clearwhen just looking at the tip of the iceberg of evidence that is already in the
record.
Indeed, if there is no witness protection, witnesses may either disappear or lie

about the truth for fear of being attacked or framed.
These risks are firmly established by the attached affidavit of Javier F. Peaan incredibly
courageous United States law enforcement hero. He is one of the two leaders of the U.S.
governments successful effort to bring down Pablo Escobar, the leader of the Medellin cartel in
Colombia. Ex. 5, 3 (Pea Decl.).
This tragic moral dilemma makes this present case factually unique. Unlike standard U.S.
cases, payments to render assistance to witnesses and their families in Colombia are both proper
and necessary to protect the truth. Indeed an attorney is charged with getting to the truth for his
clientsand in Colombia, he must protect them in order to do that:
There is no crime in assistance payments to witnesses or their families for

protection. Indeed, Drummond has not made a single allegation of criminal
conduct here.
The necessity of payments for witness protection and legal assistance in this case
is firmly established by the attached supplemental declaration of Ivan Otero. See
Ex. 2, 3, 28-40.
Otero tells a chilling story of how he learned the truth about Drummond and
underscores the importance of these payments and why they were conservative
and reasonable under the circumstances. See generally id.
o
Otero is a well-known criminal defense lawyer in Colombia and has dealt

with the Medellin-style threats of the AUC terrorists on a first-hand basis.
Id. 1, 21, 74-77.
Otero has also been a law professor at a major public university in

Colombia for 14 yearsteaching both criminal law and evidence. He is
intimately familiar with the Colombian legal system. Id. 1.
Otero is in a unique position to tell the story, because he was an attorney

for various AUC terrorists in the early 2000s, until the Colombian
government offered them reduced sentences for fully disclosing the truth,
and they no longer needed Oteros representation. Id. 18-20, 24.
Drummond obviously knew that AUC terrorists could be trouble if

they strayed from the code of silence. The Medellin-style
training of the AUCwith its money or bullets approach to
controlling witnesseswas a terrifying fact of life for these former
AUC members. Id. 16.
Blanco was a former subcontractor for Drummond and was convicted of

participating in the killing of Drummond labor union organizers.
Nevertheless, the very Colombian court that convicted Blanco

stated in the record of his judgment that Drummond and Garry
Drummond should be investigated by the government of Colombia
based on the evidence presented in that case. Ex. 6, 2 (Colombian
Court Judgment).
Otero himself has to drive a special armored car and protect his own
family for the foreseeable future in light of express and serious hit list
threats he has received for championing the very cases presently before
this Court in underlying Drummond litigation. Ex. 2, 2.
If Drummond can properly defend itself merely on the facts and the truth,
there is no need for the kinds of threats described in Oteros declaration.
See id. 74-77.
This credible story stands in stark contrast to Drummonds story that its personnel had
never spoken or met with members of the AUC, much less participated in a scheme to finance
the AUC.
Alfredo Santander Araujo, Manager of Community Relations for Drummond in

Colombia: Q: So as far as you know, no one at Drummond was ever tasked with
officially communicating with the AUC? A: I believe that at Drummond, and Im
almost certainin fact, I am certain nonobody had official or inform- -- or informal
contact with members of the AUC. Q: Not even informal contact? A: Im certain
there was no contact, formal or informal. Ex. 8 at 121:2-11 (Alfredo Santander Araujo
Dep. Tr.).
In fact, there is a long list of evidence that Drummond financed and openly interacted
with the AUC, including the following:
Declaration of Jose Gelvez Albarracin, former AUC member: At this meeting [with
Rafael Pea Ros, Luis Carlos Rodriguez, and Jim Adkins, among others] we discussed
and we all agreed that we would support the AUC with money for arms and supplies. We
also agreed that we would give the AUC a monthly payment to cover the salaries, food,
and costs of the AUC troops. We also agreed to buy the AUC some vehicles and supply
them with fuel. There was no objection to any of these agreements from anyone
present. . . . Besides receiving funding and other support from Drummond and Prodeco,
the AUC also entered the Drummond mine freely. Ex. 10, 16, 19 (Gelvez Decl.).
Declaration of Libardo Duarte, former AUC member: The AUC, Drummond managers,
and the Colombian military all interacted and cooperated. . . . Jaime Blancos place was
our hangout because he got the contract to run the Drummond casino precisely because
he was closely aligned with the AUC. Sometime in 1999, I learned from Omega that
Drummond had a major agreement with the AUC, and that Drummond paid the AUC
about $500,000 (U.S.) per month. This covered our operations payments for the
7
soldiers, equipment, transport, supplies, food, and drinks. Whatever was left over went up
the line to Jorge 40 and Carlos Castao. . . . The other major way that Drummond
provided major funding to the AUC was to contract with other businesses, and as a
requirement of getting Drummonds business, these contractors had to make payments to
the AUC. Ex. 11, 29-31 (Durante Decl.).
Declaration of Jaime Blanco Maya: El Tigre, was the commander of the AUC in the
region and he asked me to be the intermediary between the AUC and Drummond. He was
hoping that Drummond would financially support the AUC. . . . After two or three trips
[Adkins] told me that he had raised the issue of funding El Tigres front of the AUC and
that Garry Drummond had agreed to the idea. Adkins thought it was impossible for
Drummond to pay the AUC directly. As a result, we had to devise a strategy to make
payments to the AUC through my company, ISA. . . . The first monthly payment by
Drummond of roughly $30 million Colombian pesos to the AUC was made, but during
the first month Adkins told me that if in some months he could not bring the required
cash, I should charge any funds that were needed to Drummond through ISA, by creating
false charge or overcharging for services not provided. Ex. 12, 16, 18, 21 (Blanco
Decl.).
Overview of the Law

To succeed on its request for entry of a default judgment against defendants, Drummond
must satisfy the demanding legal standards of Federal Rule of Civil Procedure 37 or succeed in
invoking the inherent powers of this Court. Drummond can do neither.
Before a court can enter a default judgment under Rule 37, the following four factors
must be met: (1) failure to comply with a court discovery order, (2) willfulness or bad faith, (3)
prejudice to the other party, and (4) the ineffectiveness of lesser sanctions. Drummond cannot
prove any of these elements:
First, the defendants have not violated any discovery order compelling disclosure of the
fact of all witness payments.
o The Courts October 15, 2013 Order only stated that the fact of payments to
witnesses is not subject to work production objections and, in any event, there
were no outstanding discovery requests that sought information on all witness
payments.
o The only order compelling production of such information was the October 15,
2014 Order, with which the defendants have spent more than $1 million to
comply.
Second, because no Court order has been violated, there has been no willful or bad faith
failure to comply with a Court order.
Third, Mr. Collingsworths statements were not made willfully or in bad faith.
Fourth, Drummond has not been prejudiced by Mr. Collingsworths statements.

o A trial date has not been set.
o Depositions have not started.
o Work product and other privilege issues are still under consideration.
Fifth, even though no sanctions are warranted, Drummond has not demonstrated that any
lesser sanction other than default would be ineffective.
In fact, the incredible efforts undertaken by the defendants to comply with the Courts October
15, 2014, which threatened sanctions, demonstrates that sanctions are wholly unnecessary to
ensure defendants fully comply with all of their discovery obligations.
Drummond also has not demonstrated that the standard necessary for invoking the
Courts inherent authority has been satisfied. In order for the Court to exercise its inherent
authority to impose sanctions, a finding of bad faith is required. But, as discussed further below,
Mr. Collingsworth did not make his incorrect statements in bad faith.
To illustrate the difference between this case and those cited by Drummond in which
dismissal or default was imposed, defendants have attached a chart of cases cited by Drummond.
See Ex. 13. This chart makes clear that the key criteria for sanctions occur when:
The party sanctioned violated multiple discovery orders or engaged in multiple rounds of
discovery misconduct.
The party sanctioned had previously been sanctioned or the court had previously found
that sanctions were warranted.
The important documents and information that were the subject of the sanctions motion
were not disclosed until the end of discovery or even until trial.
The important documents and information were in many instances discovered by the
opposing party or even the Court.
9
The party against whom sanctions were sought had no credible explanation for its
misconduct.
The party seeking sanctions was prejudiced by the discovery misconduct.
None of these criteria are present here. Defendants have also attached, as Exhibit 14, a chart of
cases in which sanctions were not issued that involved fact patterns more closely mirroring the
facts of this case.
In summary, this case boils down to whether the Court should use its inherent
discretionary powers to enter a default judgment against the defendants over incorrect statements
that were corrected long before the close of discovery and long before trial, had no real
deleterious effect on Drummonds lawsuit, and are entirely irrelevant to the truth or falsity of the
statements Drummond claims are defamatory.
A careful review of both the law and the facts demonstrates that the Court can easily
reserve judgment on any such sanctions until all the evidence is in and the case is tried. The real
remedy for this situationif any questions existshould be to:
Let this case go to trial so that the jury can determine the facts and weigh the
credibility of witnesses who received direct or indirect paymentsfor security,
witness relocation, or otherwise.
Withhold any ruling on sanctions until after all evidence is presented at trial and
the complete context of all witness payments is known.
RELEVANT DISCOVERY BACKGROUND3
The first twenty-three pages of Drummonds Sanctions Motion paint a Background of

Facts depicting a damning story of overt deception and unabashed disregard for this Courts
authority. A closer review of the facts reveals that no such things occurred.
In addition to factual discussion provided here, defendants have attached, as Exhibit 15, a chart responding to
every evidentiary-supported allegation made by Drummond in its Sanctions Motion.
10
For starters, the threshold condition for invoking Rule 37 sanctions is not satisfied:
violation of a discovery order. Until October 15, 2014, there was no outstanding discovery order
compelling disclosure of witness-related protection payments. Thus, defendants could not have
violated any such order before then. Drummond ignores the plain truth of these facts.
On July 1, 2013, Drummond filed a motion to compel discovery responses. Doc. 43. That
motion expressly sought to compel discovery relevant to payments to . . . witnesses, and it
listed twenty-two different interrogatories and requests for production that purportedly requested
such information:
Doc. 43 at 14; see Ex. 16 (Pls 1st & 2nd Reqs. for Produc. & Interrogs.).
Not a single one of the requests listed, however, even arguably sought information
regarding payments to witnessesa deficiency defendants raised at least twice with
Drummond in opposing the motion to compel and in another filing. See Doc. 46 at 20; Doc. 114
at 4. Thus, contrary to Drummonds repeated representations in its Sanctions Motion, when the
Court entered its October 15, 2013 Order on Drummonds motion to compel, there were no
outstanding discovery requests for documents and information regarding payments related
to witness protection. Therefore, defendants had no obligation to produce such documents and
information in response to the Courts October 15, 2013 Order.4
The documents reflecting payments related to witness protection that Drummond knew about, which related to
Charris, Durante, Gelvez and Halcon, were all documents Drummond acquired during Balcero. See Doc. 69, 3435 (Collingsworth declaration explaining documents reflecting payments relating to protection for Charris, Durante,
Gelvez, and Halcon were produced in Balcero).
11
Accordingly, when defendants asserted, both in briefing on the motion to compel and at
the October 10, 2013 hearing, that they had produced every responsive document, Doc. 46 at 9
(emphasis added); Doc. 63 at 26:9-16, that representation was true. Drummonds accusations to
the contrary in its Sanctions Motion are, therefore, flatly false. See Pl.s Mot. at 9.
In addition, defendants could not have been in violation of the 2013 Order as it expressly
found that [i]nterrogatories and requests for production on payments to witnesses are not
overbroad and are properly within the scope of discovery. Doc. 64 at 3 (emphasis added). Until
Drummond served defendants with an interrogatory or request for production that actually
sought such information, defendants could not be in violation of that Order.
One need look no further than Drummonds Sanctions Motion to see that nowhere does
Drummond direct the Court to a specific discovery request regarding payments related to witness
protection with which the defendants have not complied.5
This is because it was not until February 11, 2014, that Drummond first served
discovery requests broadly seeking documents and information about payments related to
witness protection. Ex 17 (Pl.s 3rd Reqs. for Produc.); Ex. 18 (Pl.s 3rd Interrogs.) (together,
3rd Requests). Further, Drummonds 3rd Requests included, for the first time, an incredibly
broad definition of payments that was not in previous discovery requests and was not
considered by the Court during the October 10, 2013 hearing. Ex. 17, 18; Ex. 18, 14. Thus, it
was not until March 2014 that the defendants were faced with having to respond to discovery
requests broadly seeking payments related to witness protection as defined by Drummond.
In responding to Drummonds 3rd Requests, defendants understood that payments to
witnesses were discoverable in light of the October 15, 2013 Order. But, exercising their rights
5
In contrast, where discovery requests on particular topics do exist, Drummond is careful to ensure that pinpoint
cites to particular request numbers are included. See, e.g., Pl.s Mot. at 22 (citing specific requests by number).
12
under the Rules, defendants appropriately objected to Drummonds new, broad definition of
payments, which had not yet been adopted or even considered by the Court. Ex. 19, 2 & pg.
3 (Defs. Resps. & Objections to Pls 3rd Reqs. for Produc.); Ex. 20, 2 & pg. 2 (Defs. Resps.
& Objections to Pls 3rd Interrog.). Thus, at this point, defendants were still not in violation of
the October 15, 2013 Order because that order did not compel production of information
consistent with Drummonds new definition of payments.6
Instead of attempting to procure a discovery order, a prerequisite to sanctions under Rule
37, Drummond leapfrogged right to sanctions. See Doc. 104. In that motion, Drummond
claimed, as it does now, that defendants were withholding documents that the Court ordered
produced in October of 2013. Doc. 104 at 1. Drummond made this incredible assertion despite
the fact that Drummond first served requests for documents regarding payments for witness
protection, which included a new definition of payments, four months after the October 15,
2013 Order was issued and less than two months before filing its motion for sanctions.
As the parties entered the April 2014 hearing on Drummonds motion for sanctions,
defendants had outstanding objections to Drummonds definition of payments and, thus, the
scope of which payments were discoverable had not been settled. If Drummond had attempted to
meet and confer on defendants objections, rather than leapfrogging to a motion for sanctions,
the parameters of which payments were discoverable could have been clarified much earlier.
Because it did not meet and confer or file a motion to compel, however, those parameters were
still unclear during the April 2014 hearing.
Prior to service of the 3rd Requests, defendants, based on their understanding of the scope of payments
following the hearing (and in the absence of any contrary instructions regarding the definition of payments), did
discuss that three witnesses had received security payments. See Doc. 68 at 11; Doc. 69, 34. These representations
did not expressly limit the number of witnesses who received security payments only to the three witnesses
discussed.
13
And, because those parameters were still unclear, when defendants stated in their
opposition to the motion for sanctions that they were in full compliance with the Courts
discovery order, Doc. 114 at 2, they werebased on their interpretation of payments to
witnesses as direct payments by either Conrad & Scherer or Mr. Collingsworth to a witness or a
witnesss family.7
In May 2014, defendants produced documents in which they redacted evidence of
security payments made by Conrad & Scherer to Ivan Otero. These documents did not in any
way mention or refer to witnesses or witness security payments.
It was not until the Court issued its October 15, 2014 Order on Privilege Logs that
Drummonds definitions of payments to witnesses and Colombian witnesses became the
operative definitions in the case.8 See Doc. 151, 9, n.2. The definition of payments to
witnesses thus became:
Payments to witnesses is meant to encompass in the broadest sense possible
any documents or communications that relate to witness payments or any form of
assistance to witnesses. This includes all documents relating to requests for
payment, offers of payment, refusals to pay, actual payments, contemplated
payments, suggestions of payment, proposals of payment, the logistics of
effectuating payments, problems (legal, logistical, or otherwise) with payments,
amounts of payments and rejections of offers of payments. Payments to
witnesses is not in any way limited to security payments; rather it encompasses
any payment or benefit (monetary or non-monetary) whatsoever to any witness,
whether contemplated or completed, regardless of what any party contends was
the purpose of the payment. Additionally, payments to witnesses is not limited
7
Even as Drummonds motion shows, this was an entirely true statement.

This also puts in context the statements of the defendants counsel in the April 2014 hearing that there was no
payment made because, in the context of the Court asking about the legality of those payments, and in light of Mr.
Collingsworths declaration limiting his statement to payments by Parker Waichman and/or Conrad & Scherer, this
statement was also accurate.
8
Despite Drummonds insinuation to the contrary, Pl.s Mot. at 13-15, Parker Waichmans agreement to produce
certain documents for the Special Masters in camera review did not prompt defendants disclosure of these
documents. There is no guarantee the documents under the Special Masters review will be produced. Moreover, the
defendants promptly disclosed new documents after the Courts October 15, 2014 Order was issued.
14
to direct payments to witnesses, but also includes any benefit or things of value
offered or provided to, or requested by, witnesses lawyers, family members,
contacts, intermediaries, friends, girlfriends, paramours, associates or agents, or
payments actually made to a security firm or some other person or entity
providing security.
Id. at n.2.
And, the definition of Colombian witnesses became any person claiming to have
knowledge of Drummonds alleged collaboration with paramilitaries and includes people of any
nationality. Colombian witnesses is not meant and should not be limited to witnesses who are
citizens or residents of Colombia. Id. at n.1.
Accordingly, as soon as humanly possible following issuance of the October 15, 2014
Order, defendants produced documents in accordance with the new definitions of payments to
witnesses and Colombian witnesses. And, as discussed below, the defendants expended an
incredible amount of time and money to comply with the Courts Order in a timely fashion.
ARGUMENT
I.
A DEFAULT JUDGMENT SHOULD NOT BE ENTERED UNDER EITHER

RULE 37 OR THE COURTS INHERENT POWER.
Default judgment should not be entered under Rule 37 or the Courts inherent authority
because both require a finding of bad faith or willfulness, and there is no evidence of either in
this case. In addition, Rule 37 sanctions are not available because no discovery order has been
violated and Drummond has not suffered any prejudice from the defendants alleged misconduct.
A.
Legal framework for sanctions under Rule 37 and courts inherent authority
1.
Rule 37
Defendants do not meet any of the three central requirements for a Rule 37 sanctions.
Four conditions must be present for a default judgment to be entered as a sanction under Rule 37:
(1) there must be a discovery order, (2) which the offending party violated willfully or in bad
15
faith, (3) resulting in prejudice to the other party, and (4) a finding by the court that less drastic
sanctions would not achieve Rule 37s desired deterrent effect. See Scipione v. Advance Stores
Co., 294 F.R.D. 659, 664-65 (M.D. Fla. 2013) (citing Natl Hockey League v. Metro. Hockey
Club, Inc., 427 U.S. 639 (1976)); see also United States v. Certain Real Property Located at
Route 1, Bryant, Ala., 126 F.3d 1314, 1318 (11th Cir. 1997) (holding that circuit precedent
clearly dictates that a default judgment under Rule 37 must be preceded by an order of the
court compelling discovery, the violation of which might authorize such sanctions); Aztec Steel
Co. v. Fla. Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982) (Rule 37 sanctions designed to
prevent unfair prejudice to the litigants); United States v. Real Property Known As 200 Acres of
Land Near FM 2686 Rio Grande City, Tex., 773 F.3d 654, 660 (5th Cir. 2014) (in order for
default judgment to be entered, the penalized partys discovery violation must be willful, and
the drastic measure is only to be employed where a lesser sanction would not substantially
achieve the desired deterrent effect); United States v. Varnado, 447 F. Appx 48, 51 (11th Cir.
2011) (holding [t]he district court must also determine that lesser sanctions would not serve the
interests of justice before it enters default judgment).
A default judgment, the most severe sanction available under Rule 37, is a drastic
sanction that should be used only in extreme situations because it is preferable for cases to be
heard on the merits. . . . Varnado, 447 F. Appx at 51. Because a default judgment precludes a
trial on the merits, the Eleventh Circuit has consistently . . . found Rule 37 sanctions such as
dismissal or entry of default judgment to be appropriate . . . only where the partys conduct
amounts to flagrant disregard and willful disobedience of discovery orders. Certain Real Prop.
Located at Route 1, Bryant, Ala., 126 F.3d at 1317 (quoting Buchanan v. Bowman, 820 F.2d 359,
361 (11th Cir. 1987)). Such a demanding standard is necessary because sanctions under Rule 37
16
must be just, which means the severity of the sanction must bear a close relation to the conduct
at issue. Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (citing Ins. Corp. v.
Compagnie des Bauxites de Guine, 456 U.S. 694, 707 (1982)).
2.
Courts inherent authority
Invocation of a courts inherent authority to issue sanctions also has a demanding

standard: bad faith. And as defined in case law, that must be an extreme form of bad faith.
Furthermore, Drummond carries the burden of proof of showing bad faith by clear and
convincing evidence.
A court can exercise its inherent authority to issue sanctions only upon a finding of bad
faith. See Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir.
2009) (The key to unlocking a courts inherent power is a finding of bad faith.). Bad faith
occurs in very extreme situations:
When fraud has been practiced on the court, Chambers v. NASCO, Inc., 501 U.S. 32,
46 (1991), or the very temple of justice has been defiled, Byrne v. Nezhat, 261 F.3d
1075, 1106 (11th Cir. 2001), abrogated on other grounds Bridge v. Phoenix Bond &
Indem. Co., 553 U.S. 639 (2008);
[W]here an attorney knowingly or recklessly raises a frivolous argument, or argues a

meritorious claim for the purpose of harassing an opponent, Barnes v. Dalton, 158 F.3d
1212, 1214 (11th Cir. 1998);
[B]y delaying or disrupting the litigation or hampering enforcement of a court order,

id.; or
When a party commits perjury or . . . doctors evidence that relates to the pivotal or
linchpin issue in the case. In re Brican Am. LLC Equip. Lease Litig., 977 F. Supp. 2d
1287, 1292 (S.D. Fla. 2013) (internal quotations omitted).
False or incorrect statements alone do not compel a finding of bad faith. That is,
[w]ithout a smoking gun statement from the plaintiff, i.e., I know my claim is frivolous and I
am pursuing this claim to harass the defendants, a district court makes a determination of bad
17
faith by drawing inferences from the conduct before it. Standing alone, a false or inconsistent
statement in a deposition does not compel the conclusion of bad faith. Byrne, 261 F.3d at 1125.
Although courts can exercise their inherent powers to issue sanctions even if procedural
rules exist which sanction the same conduct, Chambers, 501 U.S. at 49, when there is bad-faith
conduct in the course of litigation that could be adequately sanctioned under the Rules, the court
ordinarily should rely on the Rules rather than the inherent power, id. at 50. Finally, courts must
exercise caution in invoking [their] inherent power. Thomas v. Tenneco Packaging Co., 293
F.3d 1306, 1320 (11th Cir. 2002) (quoting Chambers, 501 U.S. at 50).
The party seeking sanctions (Drummond) carries the burden of proving bad faith. See
Wandner v. Am. Airlines, Inc., No. 14-cv-22011, 2015 WL 145019, at *10 (S.D. Fla. Jan. 12,
2015). For sanctions such as default judgment, proof of bad faith must be shown by clear and
convincing evidence. Id. at *13; see also In re Brican Am. LLC Equip. Lease Litig., 977 F.
Supp. 2d at 1293, n.6 (quoting Compton v. Alpha Kappa Alpha Sorority, Inc., 938 F. Supp. 2d
103, 104-05 (D.D.C. 2013)).
B.
The standards for entering a default judgment under Rule 37 or the Courts
inherent authority are not satisfied here.
Drummonds motion for sanctions boils down to two primary arguments: that defendants
did not produce all documents in response to the 2013 Order, and that Mr. Collingsworth made
false statements to the Court during the April 2014 hearing. Neither argument warrants a default
judgmentparticularly when there was self-reporting and the issue was fixed early in discovery.
Drummond also bases its motion, in part, on filings made or violations of an order in
other cases, but a party cannot be sanctioned in one case for its conduct in another case. See
Atchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1073 (9th Cir. 1998)
(The Federal Rules of Civil Procedure do not authorize dismissal of an entirely separate action
18
for violations in a related action. . . . The effect of a district courts sanction may not pervade
beyond the action in which the violation occurred.). There was an order in Balcero that related
to witnesses. See Doc. 332 at 5-7. That order did not apply to documents and, in any event,
cannot provide a basis for sanctions here. Further, to the extent it required disclosures, it has
been fixed.
1.
No Court order in this case has been violated.
With respect to the first argument, the defendants were never in violation of the October
15, 2013 Order, which is the only order in this case Drummond argues was violated. See Pl.s
Mot. at 1, 2, 15, 30.
As discussed above, the October 15, 2013 Order determined that [i]nterrogatories and
requests for production on payments to witnesses are not overbroad and are properly within the
scope of discovery. Doc. 64 at 3 (emphasis added). But, there were no outstanding discovery
requests as of the issuance of that order that directly sought information regarding witness
payments.
Nor were defendants in violation of that order after Drummond served its 3rd Requests in
February 2014, which were the first requests that expressly sought information about witness
payments. As explained above, those requests included an entirely new and incredibly broad
definition of payments to witnesses to which defendants appropriately objected and was not a
part of the Courts October 15, 2013 Order.
Prior to this extremely broad definition being adopted in the Courts October 15, 2014
Order, defendants had a good faith basis for objecting on this ground and construing payments
to witnesses narrowly as only those payments flowing directly from Conrad & Scherer to a
witness or a witnesss family.
19
It was not until the Court issued its October 15, 2014 Order that it was clear that the
definition of witness payments in Drummonds 3rd Requests would be operative in this case.
Defendants complied with that order, and Drummond does not argue that they did not. Thus, not
a single court order has been violated by the defendants and, therefore, no Rule 37 sanctions,
much less a default judgment, are available. Certain Real Prop. Located at Route 1, Bryant, Ala.,
126 F.3d at 1318.
2.
The incorrect statements made by Mr. Collingsworth to the Court in

April 2014 were not made in bad faith.
Mr. Collingsworths incorrect statements at the April 2014 hearing cannot give rise to
Rule 37 sanctions because there is not sufficient evidence that Mr. Collingsworth made those
statements in bad faith.
A finding of bad faith is necessary to impose sanctions pursuant to the Courts inherent
authority. Eagle Hosp. Physicians, 561 F.3d at 1306. As Mr. Collingsworth admits, his
statements were inaccurate and should not have been made. Ex. 21, 2-14 (Collingsworth
Decl.). But, there is a big difference between making a statement by a mistake and making a
statement in bad faith. Even a serious mistakeand one that was cured on a self-reporting
basisis not bad faith as evidenced by case law.
The tragic aspect of this mistake is that it has clearly hurt Mr. Collingsworths credibility
before the Court. But shooting oneself in the footwhich sometimes happens when one
unexpectedly speaks in a courtroomdoes not rise to perjury. That is particularly true in this
instance, where Mr. Collingsworths statements do not undermine the lawsuit itself.
Mr. Collingsworth, in standing up and volunteering to answer the Courts question, even
though he had not expected to make any statements at the hearing, failed to qualify his response
in light of the payments made by Conrad & Scherer to Ivan Otero. See id. 13. Instead, Mr.
20
Collingsworth mentioned in open court only payments made directly by Conrad & Scherer for
witness protection. Id. He was not expecting to speak and the hearing and did not want to say too
much. Id.
Mr. Collingsworths declaration speaks for itself. See id. And, Mr. Collingsworth has
fixed the issue with additional supplementation in compliance with the October 15, 2014 Order.
A false or incorrect statement to the Court, standing alone, cannot constitute bad faith.
Byrne, 261 F.3d at 1125. And Drummond certainly has not carried its burden of proving by clear
and convincing evidence that it does. Wandner, 2015 WL 145019, at *13. At most, Mr.
Collingsworth has damaged his credibility before the Court. But, that does not mean he
committed perjury or otherwise acted in bad faith. See Wallace v. McGlothan, 606 F.3d 410,
425-28 (7th Cir. 2010) (dismissal not warranted where false deposition testimony was not
perjurious or committed in bad faith, and could be adequately remedied by cross examination at
trial). There is no evidence that this incorrect statement was made willfully or in bad faith. As a
result, Mr. Collingsworth should not receive any sanction for these incorrect statements, and he
certainly should not be subjected to a default judgment.
The cases cited by Drummond on pages 26-29 of its Sanctions Motion in support of its
request for a default judgment are clearly distinguishable from the fact pattern here. In those
cases:
The party sanctioned in many instances had violated multiple discovery orders or
engaged in multiple rounds of discovery misconduct (Malautea v. Suzuki Motor Co.,
Ltd., 987 F.2d 1536, 1538-42 (11th Cir. 1993); In re Amtrak Sunset Limited Train
Crash in Bayou Canot, AL on Sept. 22, 1993 (In re Sunset Limited), 136 F. Supp. 2d
1251, 1255-58; Chilcutt v. U.S., 4 F.3d 1313, 1321 (5th Cir. 1993); Martin v. Automobili
Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335-36 & n.2 (11th Cir. 2002); Videojet
21
Sys. Intl, Inc. v. Eagle Inks, Inc., 251 F.3d 170, at *2 (Fed. Cir. 200); Gratton v. Great
Am. Commcns, 178 F.3d 1373, 1375 (11th Cir. 1999)).
The party sanctioned in some instances had previously been sanctioned or the court
had previously found that sanctions were warranted (Fair Housing of Marin v.
Combs, 285 F.3d 899, 906 (9th Cir. 2002); Martin, 307 F.3d at 1334; Gratton, 178 F.3d
at 1375).
The important documents and information that were the subject of the sanctions
motion were not disclosed until the end of discovery or even until trial (Chilcutt, 4
F.3d at 1318; In re Sunset Limited, 136 F. Supp. 2d at 1268-69; Zocaras v. Castro, 465
F.3d 479, 483 (11th Cir. 2006)).
The important documents and information were in many instances discovered by

the opposing party or even the Court (Malautea, 987 F.2d at 1540-41; In re Sunset
Limited, 136 F. Supp. 2d at 1258; Chilcutt, 4 F.3d at 1318-19; Videojet Sys. Intl, 251
F.3d at *1).
The party against whom sanctions were sought often had no credible explanation
for its misconduct (Malautea, 987 F.2d at 1543; In re Sunset Limited, 136 F. Supp. 2d
at 1257; Chilcutt, 4 F.3d at 1323; Combs, 285 F.3d at 905-06; Videojet Sys. Intl, 251
F.3d at *2).
The party seeking sanctions was prejudiced by the discovery misconduct (Malautea,
987 F.2d at 1540; Combs, 285 F.3d at 906; Videojet Sys. Intl, 251 F.3d at *2.)
Attached, as Exhibit 13, is a chart of these cases showing that all of them consist of a
combination of factors not present here, such as that the misconduct occurred very late in the
case at trial or just before, there was no self-reporting, or there was no credible explanation (e.g.,
implausible that party who served 18-months in prison forgot felony conviction).
In contrast, defendants here have not violated any discovery order in this case and have
not been sanctioned in this case; the information was provided long before discovery closed and
even before a trial date has been set; the important information was disclosed by the defendants
themselves; the defendants have reasonable and credible explanations to rebut each of
Drummonds allegations of misconduct; and Drummond has suffered no prejudice.
In these circumstances, courts routinely refuse to impose any sanctions, must less the
draconian sanction of default or dismissal. The cases included in the chart in Exhibit 14 include
22
fact patterns more closely mirroring this one, including the difficulties investigating and
litigating cases arising in foreign countries.9 For example, in Schwartz v. Million Air, Inc., 341
F.3d 1220 (11th Cir. 2003), the Eleventh Circuit reversed a sanctions award against lawyers
representing Ecuadorian clients in cases arising from a plane crash, some of whom asserted
frivolous injury claims. Id. at 1224. In holding that the lawyers did not act in bad faith in
pursuing these claims, the Eleventh Circuit based its decision on the special circumstances
involved in the case: It involves great distances across international borders. It also involves
foreign languages and foreign cultures. And it involves medical records and a great many clients.
Taking these uncommon circumstances into consideration, we cannot conclude that Appellants
acted much (if at all) outside of the range of reasonable conduct by relying upon the
representations of Briones, the duly licensed Ecuadorian counsel who referred the cases to
them. Id. at 1226. The Court also observed, We cannot say that it was unreasonableto the
point of willful abuse and bad faithfor American counsel to rely upon others (especially other
legal counsel) who were fluent in Spanish and familiar with local customs in Ecuador and who
were on the spot to conduct the investigation. Id.
Other cases abound. In OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344
(11th Cir. 2008), the Eleventh Circuit reversed the district courts exclusion of plaintiffs expert
report that was not produced until after the close of discovery where the plaintiff had already
provided some information about the expert in the complaint and in an affidavit, and where no
United States v. Certain Real Property Located at Route 1, Bryant, Ala., 126 F.3d 1314 (11th Cir. 1997); OFS
Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344 (11th Cir. 2008); Buffalo Carpenters Pension Fund v.
CKG Ceiling & Partition Co., 192 F.R.D. 95 (W.D.N.Y. 2000); Worldcom Network Servs., Inc. v. Metro Access,
Inc., 205 F.R.D. 136 (S.D.N.Y. 2002); Spence v. Maryland Cas. Co., 803 F. Supp. 649 (W.D.N.Y. 1992); Curtin v.
Curtin, 90 F.R.D. 582 (N.D. Ohio 1981); Resolution Trust Corp. v. Thomas, No. 92-2cv-084, 1995 WL 261693 (D.
Kan. Apr. 11, 1995); In re Asbestos II Consol. Proceedings, 124 F.R.D. 187 (N.D. Ill. 1989); Haskell v.
Philadelphia Transp. Co., 19 F.R.D. 356 (D. Pa. 1956); see also Schwartz v. Million Air, Inc., 341 F.3d 1220 (11th
Cir. 200).
23
trial date had been set or was imminent. Id. at 1363-64. In Resolution Trust Corp. v. Thomas, No.
92-cv-2084, 1995 WL 261693 (D. Kan. Apr. 11, 1995), the district court denied a motion for
sanctions when the plaintiff located several boxes of important documents after a key witness
was deposed because the plaintiff was not under an order to produce the documents in question
and the defendants showed no prejudice from the delay. Id. at *1. As a result, the court held that
the late discovery of the documents in issue is not a serious failure to respond which implicates
the need for sanctions. Id. at *1-*2. In In re Asbestos II Consolidated Pretrial Proceedings, 124
F.R.D. 187 (N.D. Ill. 1989), the court refused to order dismissal after the plaintiffs counsel, who
was managing multiple cases, got severely behind in responding to discovery and, in some cases,
did not respond at all. The court was sympathetic to the plaintiffs counsel position and found
that the attorney had not acted violated the discovery orders willfully or in bad faith. Id.
3.
Drummond has not been prejudiced because defendants complied

with the October 15, 2014 Order.
Sanctions also should not be imposed because Drummond has not been prejudiced. The
definitions of witness and payments was not included in any Court order prior to October 15,
2014. That order made it crystal clear that the Court wanted everything in any way involving
payments related to witnesses. But, it also turned this case, which defendants believed to be
$500,000 lawsuit, based on representations previously made by Drummond to the Court, into a
discovery project that has cost Conrad & Scherer more than $1 million dollars in legal costs.
The efforts of the defendants to comply with the October 15, 2014 Order are exemplary.
Defendants spent well over $1 million performing a document search and review. It rivals the
kind of discovery searches that international companies like AT&T and BellSouth or others are
forced to perform. Ex. 3, 3.
Defendants revised privilege log illustrates this effort:
24
Over 12,800 documents were placed on a 2,444-page privilege log within a few
short weeks after the October 15, 2014 Order.
Those entries each listed the specific document requests in Drummonds

discovery requests and other detailed information required by the Court.
A large number of additional documents were produced following a massive

search by defendants new litigation team that revealed many new documents.10
Interrogatories have been answered or supplemented on four separate occasions in

recent weeks to expand the explanation of witness-related protection payments.
See Ex. 22 (Defs Nov. 2014, Dec. 2014, Jan. 2015, and Mar. 2015 Interrog.
Supplementations).
Drummond has not challenged the thoroughness of this workit seeks sanctions
only for a limited number of Mr. Collingsworths statements that have been
corrected.
This result alone shows that no sanctions are needed to force defendants to fully and
transparently participate in the discovery process.
4.
The rest of the storythe necessary role of witness payments in

Colombia in order to obtain the truth.
The reasonableness of Mr. Collingsworths statements and the careful line defendants had
to walk in openly discussing witness payments becomes clear when the entire context in which
payments related to witness protection and getting to the truth in the horrifying atmosphere of
Colombia is considered.
In the United States, witness payments are often viewed suspiciously as erecting a
barrier to the truth. In places like Colombia, in contrast, witness payments are often the only way
to obtain the truth.11
10
This also explains why some documents were not listed on previous privilege logs, omissions which Drummond
argues reflects defendants bad faith. Cf. Pl.s Mot. at 11-12, 23.
11
To confirm this fact generally, one need look no further than the website of the United States Embassy in
Colombia. See Embassy of the United States, Bogota, Colombia, Protection, http://bogota.
usembassy.gov/protection html (last visited Mar. 4, 2015) (Witness intimidation has been a serious issue for the
Colombian criminal justice system for decades. Violence and the threat of violence against witnesses and their
families have unfortunately been common tools in Colombia that affect criminal cases. Likewise, intimidation
against prosecutors, judges and police is a common way to detract from thorough prosecution of cases.).
25
One need look no further than the declaration of Javier F. Pea, a legendary figure in U.S.
drug enforcement. Mr. Pea is the former Special Agent in Charge (Ret.) of the Houston Field
Division of the U.S. Drug Enforcement Administration (DEA). Ex. 5, 1. He was one of two
men leading the team that brought down the ultimate scary figure in the Medellin cartel: Pablo
Escobar. Id. 3. Pea is one of the most celebrated law enforcement officers in the United
States: as tough and smart as they come.
Mr. Pea clearly explains the terrible risks that witnesses face when they tell the truth in a
situation involving such organization as the AUC. Id. 11-12, 20-21. He clearly states that one
simply cannot get the truth from witnesses in Colombia unless they feel safe. Id. 11.
That clearly applies to this specific Drummond case. The Court should carefully read the
supplemental declaration of Ivan Otero. See Ex. 2.
Otero is co-counsel to Conrad & Scherer in the underlying Drummond cases. He has
worked directly with key witnesses against Drummond in Colombia. He describes the real-world
of how to get at the truth in Colombia. It is not pretty.
Otero is a well-known criminal defense lawyer in Colombia, who deals first-hand on an
ongoing daily basis with the Medellin-style threats of the AUC. Id. 1, 6. As a practicing
lawyer and law professor, Otero is intimately familiar with the Colombian legal system. Id. 1.
Otero has to drive a special armored car and protect his own family for the foreseeable
future in light of express and serious hit list threats he has received for championing the very
cases presently before this Court in the underlying Drummond litigation. Id. 10, 74, 76.
Otero was an attorney for various AUC terrorists in the early 2000s, until the Colombian
government offered them reduced sentences for fully disclosing the truth, and they no longer
needed Oteros representation. Id. at 19.
26
The AUC terrorists knew there could be trouble if they strayed from the code of
silence. The Medellin-style training of the AUCwith its money or bullets approach to
controlling witnesseswas a terrifying fact of life for these former AUC members. Id. 16, 32,
34, 35.
By a sheer circumstance, Otero also met
another witness capable of shedding light on the truth about Drummond: Jaime Blanco. See id.
50. A former subcontractor for Drummond, Blanco was convicted in 2013 of participating in the
killing of Drummond labor union organizers. See id. 54.
. Nevertheless, the same Colombian court that convicted Blanco stated

in the record of judgment that Garry Drummond, Jim Atkins, and others should be investigated
by the government of Colombia based on the evidence presented in that case. Ex. 6, 2.
27
The ultimate irony about Drummonds vicious attack on witness protection as somehow a
terrible thing in Colombia rather than the only way to get the truth is shown by a careful look
at the law.
Not only are payments to Colombian witnesses necessary to secure the truth, they are
also legal and ethical. The payments to Colombian witnesses do not violate any statute because
the applicable laws forbid only payments made for the purpose of acquiring testimony, see 18
U.S.C. 201(c)(2) (prohibiting payments for or because of testimony), or payments made with
a corrupt intent, id. 1512(b) (prohibiting knowing attempts to corruptly influence testimony).
Here, the payments for security or attorneys fees were neither for testimony nor made with
corrupt intentthey are entirely consistent with payments found to be lawful. See, e.g., 18
U.S.C. 201(d) (providing analogous examples of payments to witnesses that do not violate
bribery statute); In re Prosser, Bankr. No. 0630009, 2011 WL 6440879, at *39-*41 (Bankr.
D.V.I. Dec. 20, 2011) (payments to witness not improper where they were not for or because
of the witness testimony).
Payments to fact witnesses are also ethical, as long as the witnesss testimony is not
contingent on the payment. Drummond has presented no such evidence here. Alabama Rule of
Professional Conduct (ARPC) 3.4(b), prohibits a lawyer from offer[ing] an inducement to a
witness that is prohibited by law. As the comment to Rule 3.4 clarifies, however, it is not
improper to pay a witnesss expenses or to compensate an expert witness on terms permitted by
law. The Alabama State Bars Disciplinary Commission has interpreted this to mean that an
attorney may pay a fact witness for actual expenses and actual loss of income or wages as long as
such payment is not made as an inducement to the witness to testify in a certain way. Ex. 23 at 3
(Ala. Bar Formal Op. 1997-02).
28
The Alabama State Bars position on payments to fact witnesses mirrors that of the
American Bar Association and other jurisdictions with rules similar to ARPC 3.4(b). In ABA
Formal Opinion 96-402 (August 2, 1996), the ABA interpreted model rule 3.4(b) to allow a
lawyer to compensate a non-expert witness for time spent in attending a deposition or trial or in
meeting with the lawyer preparatory to such testimony, provided that the payment is not
conditioned on the content of the testimony and provided further that the payment does not
violate the law of the jurisdiction. Ex. 24, 1 (Am. Bar Assn Formal Op. 1997-02). The ABA
Opinion also affirmed the legitimacy of compensating a fact witness for time spent in pretrial
interviews with the lawyer in preparation for testifying and for time spent in reviewing and
researching records that are germane to his or her testimony. Id. 5.
Other jurisdictions with ethical rules similar to ARPC 3.4(b) are in accord. See, e.g.,
Caldwell v. Cablevision Sys. Corp., 984 N.E.2d 909, 912-13 (N.Y. 2013) (distinguishing
between permissible payments that ease the burdens a fact witness encounters while testifying
and prohibited payments that hinder the truth by influencing a witnesss testimony); Reffett v.
C.I.R., 39 T.C. 869, 877-78 (T.C. 1963).
Further, payment of a witnesss attorneys fees are permissible as expenses. See In re
Prosser, 2011 WL 6440879, at *47 (citing Delaware Bar Opinion and holding that, in prior
instances, payment of a witnesss attorneys fees has been determined to be a legitimate
expense). In fact, the Alabama State Bar has issued a formal opinion, Formal Opinion 82-699,
in which it found that payment of an out-of-state witnesss attorneys fees were permitted where
such payments were necessary to obtain critical testimony that could likely not be obtained
without it. Ex. 25 (Ala. Bar Formal Op. 82-699). The Alabama Bar reaffirmed the validity of
Formal Opinion 82-699 in its more recent Formal Opinion 1997-02, which concluded that [t]his
29
opinion is consistent with previous opinions of the Disciplinary Commission on similar or

related issues in ROs 81-549, 82-699 and 88-42. Ex. 23 at 3.
C.
A default judgment cannot be entered against Conrad & Scherer because

there is no evidence that Conrad & Scherer acted in bad faith.
Drummond argues that, in addition to Mr. Collingsworth, the law firm Conrad & Scherer
should be sanctioned. Like Mr. Collingsworth, however, the firm has not violated any discovery
order triggering Rule 37. Therefore, default cannot be entered against the firm under Rule 37.
Nor has the firm acted in bad faith so as to support exercise of the Courts inherent
authority. Drummond suggests that it did by failing to disclose payments to Blanco of which,
Drummond alleges, the firm was clearly aware. See Pl.s Mot. at 18, n.12. For purposes of a
sanctions motion, [b]ad faith is personal and may not automatically be visited on others
such that absent a specific finding of the law firms bad faith, a sanction under the courts
inherent power is unjustified. Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 114
(2d Cir. 2009). There is no evidence that Conrad & Scherer failed to comply with a Courts
discovery order intentionally or in bad faith, and the alleged bad-faith actions of others cannot be
attributed to it. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1371 (11th Cir. 1997).
Moreover, mere imputation of knowledge is also not a basis for showing that the firm as
a whole acted in bad faith or was significantly involved in any alleged misconduct that forms the
basis of Drummonds motion for sanctions. Indeed, Bill Scherer, managing partner of the firm,
has stated he knew nothing about the payments to Blanco by the van Bilderbeeks. See Ex. 22 at
6-7 (Defs. 2nd Am. & Supplemental Objections & Resps. To Pl.s 3rd Set of Interrog. No. 2).
Drummond has not argued that there is anything improper about those payments, nor can it rebut
the fact that those payments have been disclosed long before trial.
30
The sanctions Drummond requests against Conrad & Scherer are therefore inappropriate.
See CPR Assocs., Inc. v. Se. Penn. Chapter of Am. Heart Assn, No. CIV. A. 90-3758, 1992 WL
229296, at *11 (E.D. Pa. Sept. 9, 1992) (finding no reason to vicariously sanction law firm when
firm did not willfully engage in misconduct or significantly participate in discovery process).
II.
ALTERNATIVE RULE 37 SANCTIONS SOUGHT BY DRUMMOND ARE NOT

WARRANTED.
Drummonds attack is centered exclusively on obtaining a default judgment against the
defendants. There is good reason: there is no connection between the harm alleged and the lesser
sanctions sought by Drummond. And the law requires the minimal sanction in light of the harm
done.12
A.
Rule 37 sanctions must bear a close relationship to the discovery misconduct

at issue.
The Supreme Court has made it very clear that a sanction must be specifically related to
the particular claim which was at issue in the order to provide discovery. Ins. Corp. of Ireland
v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982).
This means that sanctions imposed for failing to comply with a discovery order must be
reasonable in light of the circumstances, and a sanction is reasonable only if its character and
magnitude are proportionate to the character and magnitude of the violation of the underlying
discovery order, and the harmful consequences of that violation. Vaca v. Rio Props., Inc., No.
12
Drummonds suggestion that Mr. Collingsworths incorrect statement to the Court constitutes contempt should
summarily be rejected. Drummond fails to inform the Court that only false statements that constitute perjury give
rise to contempt. It also does not discuss in any detail either of the federal statutes that are implicated by its request
for a finding of criminal contempt. See In re Grand Jury Proceedings, 117 F. Supp. 2d 6, 27-28 (D.D.C. 2000) (To
support a determination of criminal contempt for making a false statement, the Government must prove, beyond a
reasonable doubt, that the relevant statement meets the essential elements of perjury under the general law.). See
also United States v. Hilburn, 625 F.2d 1177, 1179 & n.1 (5th Cir. 1980) (explaining that criminal contempt is
designed to vindicate authority of court by punishing alleged wrongdoer). Drummond pays only lip service to 18
U.S.C. 401(1), and does not even mention the multi-part test implicated by 18 U.S.C. 1621, the general perjury
statute. See United States v. Singh, 291 F.3d 756, 763 n.4 (11th Cir. 2002) (setting forth four-part test). The Court
should waste no time in rejecting this argument.
31
2:08-CV-00940-RLH, 2011 WL 830519, at *3 (D. Nev. Mar. 3, 2011); Markham v. Natl States
Ins. Co., No. CIV.02-1606-F, 2004 WL 3019308, at *13 (W.D. Okla. Jan. 8, 2004) (holding that,
even in cases where serious sanctions are warranted due to a finding of willfulness or bad faith,
the sanction imposed should still ordinarily be tailored with an eye to remedying the harm
resulting from the offenders conduct).
In Insurance Corporation of Ireland, the Supreme Court upheld the sanctiona finding
of personal jurisdiction over the defendantsbecause it related to the defendants failure to
comply with discovery orders requiring them to produce evidence related to their defense that the
court lacked personal jurisdiction over them. 456 U.S. at 708-09.
Drummonds alternative sanctions do not specifically relate to the alleged misconduct:
Drummond provides no explanation as to how waiving privilege over protected

documents relating to witness payments and credibility determinations is related
to the failure to identify a handful of other witnesses who had received security
payments.
Drummond fails to explain how an award of fees relating to third-party subpoenas

that had nothing to do with defendants alleged misconduct or the Special
Masters costs relate bear any relationship to the misconduct alleged here,
especially when Drummond was vigorously pursuing such discovery anyway.
Further undermining any claim for delay in discovery, Drummond itself failed to
produce any meaningful documents or any privilege log until December 14,
2014. And Drummond only then responded to comply with the Courts October
15, 2014 order as well.
For these reasons, Drummonds request for alternative sanctions should be denied. See,
e.g., Brooks v. Hilton Casinos Inc., 959 F.2d 757, 768 (9th Cir. 1992) (reversing decision to
prevent sanctioned party from proving any damages, where the information improperly withheld
related only to the partys economic loss claim, not other damages); English v. 21st Phoenix
Corp., 590 F.2d 723, 728 (8th Cir. 1979) (sanction establishing jurisdictional facts was carefully
tailored . . . to address the specific information sought by discovery).
32
B.
Drummond has not demonstrated that the least punitive sanction would not
suffice.
Drummond ignores a key principle embedded in Rule 37: namely, that the court should
impose the least punitive sanction to achieve the purpose of the sanctions not the most
punitive. As the First Circuit has succinctly put it, when it comes to Rule 37 sanctions, the
punishment must approximately fit the crime. Esposito v. Home Depot U.S.A., Inc., 590 F.3d
72, 80 (1st Cir. 2009). In addition, sanctions must be handled on a case-by-case basis. Id.
Thus, even when considering sanctions short of dismissal, courts must impose the least punitive
sanction sufficient under the circumstances. See, e.g., Residential Funding Corp. v. DeGeorge
Fin. Corp., 306 F.3d 99, 112 (2d Cir. 2002) (instructing district court to consider [on remand]
whether lesser sanctions were more appropriate).13
III.
THE COURT SHOULD DEFER ITS RULING UNTIL AFTER THE CLOSE OF
DISCOVERY OR UNTIL THE CASE IS OVER.
The real remedy that the Court should consider is to defer ruling on Drummonds
Sanctions Motion until after the case is over or, at a minimum, until discovery is closed. There
are strong reasons to do so:
Drummonds motion is premature because the Court cannot possibly ascertain

whether any prejudice to Drummond can be cured, or at least lessened by the
discovery that is yet to be done. United States v. Honeywell Intl Inc., 281 F.R.D.
27, 30 (D.D.C. 2012).
Any prejudice that Drummond has suffered can only be examined by looking at
all the information that is available, for only in that context can the nature and
extent of the loss suffered be accurately gauged. Davis v. Grant Park Nursing
Home, LP, No. 1:08-CV-01764 PLF, 2010 WL 4642531, at *1 (D.D.C. Nov. 9,
2010).
It is not until the end of discovery that the Court can assess accurately what
prejudice, if any, the [discovery violation] has caused. Id. (striking motion for
13
Carroll v. Jaques Admiralty Law Firm, P.C., 110 F.3d 290, 294 (5th Cir. 1997) (affirming fine that was the least
severe sanction available); Tourgeman v. Collins Fin. Servs., Inc., No. 08CV1392-JLS NLS, 2012 WL 28289, at *4
(S.D. Cal. Jan. 5, 2012) (imposing attorneys fees rather than finding numerosity requirement of class action
satisfied)
33
sanctions without prejudice); see also DOnofrio v. SFX Sports Group, Inc., 06cv-687, 2010 WL 3324964, at *11 (D.D.C. Aug. 24, 2010) (It is only after
establishing the prejudice the plaintiff suffered that any resulting sanction will
fairly address that prejudice.).
Even if there was a close question about whether the witness payments at issue were
proper (which there is not), the appropriate remedy is for Drummond to be able to test the
witnesses credibility at their deposition or at trial. Platypus Wear, Inc. v. Horizonte Fabricacao
Distribuicao Importacao Exportacao Ltda, No. 08-20738-CIV, 2010 WL 625356, at *5 (S.D.
Fla. Feb. 17, 2010) (refusing to bar evidence and testimony of facts witnesses whom movant
argued received financial benefits as the credibility of the witnesses can be addressed with
vigorous cross-examination and argument); Creative Dimensions In Mgmt., Inc. v. Thomas
Grp., Inc., No. Civ. A. 96-6318, 1999 WL 135155, at *3 (E.D. Pa. Mar. 11, 1999) (witness
payments that may have implicated ethical rules did not render witnesss testimony inadmissible
but only created credibility questions for the jury). This alone counsels in favor of staying any
sanctions determination until the credibility of the witnesses, and therefore the impact on their
testimony, can be assessed.
There is no harm in this. Document and written discovery is underway, and it is only at
the deposition stage, which has not yet begun, that credibility issues, including Mr.
Collingsworths own, really can be developed.
For these reasons, the Court should defer consideration of sanctions until the end of the
case because, the court will then have a full record of the case and a more complete history of
[the parties] compliance, noncompliance, willfulness, or bad faith. Brigham Young Univ. v.
Pfizer, Inc., No. 2:06-CV-890 TS BCW, 2010 WL 3394665, at *1 (D. Utah Aug. 27, 2010); see
also JZ Buckingham Invests. LLC v. United States, 77 Fed. Cl. 37, 48 (2007) (deferring a
34
determination of sanctions until closer to trial when the impact of the discovery violations can be
more readily ascertained).
CONCLUSION
For all these reasons, Drummonds motion should be denied, or deferred until after trial.
Respectfully submitted,
SUSMAN GODFREY L.L.P.
By: /s/ Kenneth E. McNeil

Kenneth E. McNeil, Pro Hac Vice
Stuart V. Kusin, Pro Hac Vice
Manmeet S. Walia, Pro Hac Vice
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: 713/651-9366
Facsimile: 713/654-6666
OF COUNSEL:
Christopher S. Niewoehner
Admitted pro hac vice
Steptoe & Johnson LLP
115 South LaSalle Street, Suite 3100
Chicago, IL 60604
Tel: 312-577-1240
Fax: 312-577-1370
cniewoehner@steptoe.com
Kendall R. Enyard
Savannah E. Marion
Admitted pro hac vice
Steptoe & Johnson LLP
1330 Connecticut Avenue NW
35
Washington, DC 20036
Tel: 202-429-6405
Fax: 202-429-3902
Robert K. Spotswood
Michael T. Sansbury
William T. Paulk
SPOTSWOOD SANSOM & SANSBURY LLC
One Federal Place
1819 Fifth Avenue North, Suite 1050
Birmingham, Alabama 35203
rks@spotswoodllc.com
Bradley J. Smith
Clark, Hair & Smith, P.C.
1000 Urban Center Drive, Suite 125
Birmingham, Alabama 35242
Tel: 205-397-2900
Fax: 205-397-2901
bsmith@chslaw.com
36
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of March, 2015, a true and correct copy of the
foregoing document was served upon the following parties via the Courts CM/ECF system:
William Anthony Davis, III, Esq.
H. Thomas Wells, III, Esq.
Benjamin T. Presley
STARNES DAVIS FLORIE, LLP
P.O. Box 59812
Birmingham, AL 35259
Sara E. Kropf
LAW OFFICE OF SARA KROPF PLLC
1001 G Street NW, Suite 800
Washington, D.C. 20001
Attorneys for Plaintiff Drummond Co., Inc.
/s/ William T. Paulk

William T. Paulk
37

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FILED

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 1 of 43

2015 Mar-05 PM 07:08

IN THE UNITED STATES DISTRICT COURT

DRUMMOND COMPANY, INC.,

Case No. 2:11-cv-3695-RDP

DEFENDANTS RESPONSE BRIEF TO DRUMMONDS RENEWED MOTION FOR

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 2 of 43

A DEFAULT JUDGMENT SHOULD NOT BE ENTERED UNDER EITHER

Courts inherent authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

No Court order in this case has been violated. . . . . . . . . . . . . . . .. . . . 19

The incorrect statements made by Mr. Collingsworth to the Court in

Drummond has not been prejudiced because defendants complied

The rest of the storythe necessary role of witness payments in

ALTERNATIVE RULE 37 SANCTIONS SOUGHT BY DRUMMOND ARE NOT

Rule 37 sanctions must bear a close relationship to the discovery misconduct

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 3 of 43

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 4 of 43

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 5 of 43

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 6 of 43

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 7 of 43

Drummond suggests that payments for protection of witnesses in Colombia are

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 8 of 43

The Court must now confront two issues:

A list of exhibits is attached hereto as Exhibit 1.

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 9 of 43

But this Court knows that a human rights lawyer

Saying too much can hurt witnesses.

Either being too precise or too general can become problematic.

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 10 of 43

The risk of witness intimidation by Drummond in these Drummond cases is

Indeed, if there is no witness protection, witnesses may either disappear or lie

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 11 of 43

There is no crime in assistance payments to witnesses or their families for

Otero is a well-known criminal defense lawyer in Colombia and has dealt

Otero has also been a law professor at a major public university in

Otero is in a unique position to tell the story, because he was an attorney

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 12 of 43

Drummond obviously knew that AUC terrorists could be trouble if

Blanco was a former subcontractor for Drummond and was convicted of

Nevertheless, the very Colombian court that convicted Blanco

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 13 of 43

Alfredo Santander Araujo, Manager of Community Relations for Drummond in

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 14 of 43

Overview of the Law

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 15 of 43

Fourth, Drummond has not been prejudiced by Mr. Collingsworths statements.

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 16 of 43

The party seeking sanctions was prejudiced by the discovery misconduct.

The first twenty-three pages of Drummonds Sanctions Motion paint a Background of

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Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 20 of 43

Even as Drummonds motion shows, this was an entirely true statement.

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 21 of 43

A DEFAULT JUDGMENT SHOULD NOT BE ENTERED UNDER EITHER

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 22 of 43

Case 2:11-cv-03695-RDP-TMP Document 187 Filed 03/05/15 Page 23 of 43

Courts inherent authority

Invocation of a courts inherent authority to issue sanctions also has a demanding

[W]here an attorney knowingly or recklessly raises a frivolous argument, or argues a

[B]y delaying or disrupting the litigation or hampering enforcement of a court order,