Case 0:16-mc-60511-AOR Document 24 Entered on FLSD Docket 07/29/2016 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
DRUMMOND COMPANY, INC.,
Plaintiff ,
vs.
TERRENCE P. COLLINGSWORTH,
individually and as agent of Conrad & Scherer,
LLP; and CONRAD & SCHERER, LLP,
Defendants .

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Case No. 0:16-mc-60511-AOR

(Case
No.
2:11-cv-3695-RDP-TMP
pending in the United States District Court
for the Northern District of Alabama,
Southern Division)

DRUMMOND COMPANY INC.S RESPONSE IN OPPOSITION TO CONRAD &

SCHERER, LLPS MOTION TO QUASH SUBPOENA TO DOUGLAS VON ALLMEN
AND/OR MOTION FOR PROTECTIVE ORDER

H. Thomas Wells, III

ASB-4318-H62W
STARNES DAVIS FLORIE LLP
P.O. Box 59812
Birmingham, AL 35259
(205) 868-6000
Fax: (205) 868-6099

Brett Alan Barfield

Florida Bar No. 019552
HOLLAND & KNIGHT
701 Brickell Avenue, Suite 3300
Miami, FL 33131
(305) 789-7661
Fax: (305) 789-7799

Attorneys for Drummond Company, Inc.

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
MEET AND CONFER EFFORTS ..................................................................................................3
FACTUAL AND PROCEDURAL HISTORY ...............................................................................3
LEGAL ARGUMENT...................................................................................................................11
I.

C&S FAILED TO PRESERVE ANY ARGUMENT WITH RESPECT TO THE MAJORITY OF

THE REQUESTS AT ISSUE.........................................................................................11

II.

THE DOCUMENTS DRUMMOND SEEKS ARE UNQUESTIONABLY RELEVANT.............12

A.

Neither C&S Nor Von Allmen Carried Their Burden With Respect to
Request Nos. 2, 6, 31, 36 and 37. ..............................................................12

B.

Drummonds requests are reasonably calculated to lead to the discovery of

admissible evidence directly relevant to its claims in this case. ................13

III.

C&S AND VON ALLMENS PRIVILEGE ARGUMENTS ARE UNAVAILING. .................15

IV.

CONFIDENTIALITY CLAIMS DO NOT IMMUNIZE DOCUMENTS FROM

DISCOVERY.............................................................................................................20

CERTIFICATE OF SERVICE ......................................................................................................21

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TABLE OF AUTHORITIES
Cases

Page(s)

Adelman v. Boy Scouts of America,

276 F.R.D. 681 (S.D. Fla. 2011)........................................................................................20
Armor Screen Corp. v. Storm Catcher, Inc.,
No. 07-81091-CIV-RYSKAMP, 2009 WL 2767664 (S.D. Fla. Aug. 31, 2009) ..............19
Arnold v. Wausau Underwriting Ins. Co.,
No. 13-60299-CIV, 2013 WL 5488520 (S.D. Fla. Sept. 30, 2013)...................................15
Barrington v. Mortage IT, Inc.,
No. 07-61304-CIV, 2007 WL 4370647 (S.D. Fla. Dec. 10, 2007)....................................20
Belony v. Amtrust Bank,
No. 09-82335-CIV, 2011 WL 2297669 (S.D. Fla. June 8, 2011)......................................18
Donahay v. Palm Beach Tours & Transp., Inc.,
No. 06-61279, 2007 WL 1119206 (S.D. Fla. Apr. 16, 2007) .......................................11,13
Donahay v. Palm Beach Tours & Transp., Inc.,
242 F.R.D. 685 (S.D. Fla. 2007)........................................................................................12
Dunford v. Rolly Marine Serv. Co.,
233 F.R.D. 635 (S.D. Fla. 2005)........................................................................................15
F.T.C. v. Cambridge Exch., Ltd., Inc.,
845 F. Supp. 872 (S.D. Fla. 1993) .....................................................................................19
Fincher v. Keller Indus., Inc.,
129 F.R.D. 123 (M.D.N.C. 1990) ......................................................................................16
Huffman v. United States,
No. 07-80736-CIV, 2007 WL 4800643 (S.D. Fla. Nov. 29, 2007) ...................................18
In re Grand Jury Investigation,
769 F.2d 1485 (11th Cir. 1985) .........................................................................................18
In re Grand Jury Matter No. 9101386,
969 F.2d 995 (11th Cir. 1992) ........................................................................................2,17
In re Grand Jury Subpoena,
831 F.2d 225 (11th Cir. 1987) ...........................................................................................18

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In re Naranjo,
768 F.3d 332 (4th Cir. 2014) .............................................................................................16
In re Slaughter,
694 F.2d 1258 (11th Cir. 1982) .........................................................................................19
La Mura v. United States,
765 F.2d 974 (11th Cir. 1985) ...........................................................................................15
MapleWood Partners, L.P. v. Indian Harbor Ins. Co.,
295 F.R.D. 550 (S.D. Fla. 2013)........................................................................................17
Miller v. MP Global Products, LLC,
No. CIV.A. 12-00747-KD-N, 2014 WL 1017887 (S.D. Ala. Mar. 17, 2014)...................15
ONeal v. U.S.,
258 F.3d 1265 (11th Cir. 2001) .........................................................................................19
S.E.C. v. Dowdell,
No. 8:02MC94 T17TBM, 2006 WL 3876294 (M.D. Fla. May 15, 2006) ........................19
United States v. Procter & Gamble Co.,
356 U.S. 677 (1958)...........................................................................................................15
Statutes and Rules

Page(s)

Southern District of Florida Local Rule 7.1................................................................................1,12

Fed. R. Civ. P. 26(b)(1)..................................................................................................................13
Fed. R. Civ. P. 45.............................................................................................................................1

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Pursuant to Local Rule 7.1(c)(1)(A), Drummond Company, Inc. (Drummond) files this
response in opposition to Conrad & Scherer, LLPs (C&S) Motion to Quash Subpoena to
Douglas Von Allmen and/or Motion for Protective Order.
INTRODUCTION
This subpoena arises out of a civil defamation lawsuit filed by Drummond against C&S
and Terrence P. Collingsworth (Collingsworth) in the Northern District of Alabama.
At the outset, Drummonds subpoena and C&Ss arguments must be viewed in
conjunction with the history of this litigation. Collingsworth and C&S have made countless
misrepresentations to numerous courts in response to Drummonds other third party subpoenas,
including state and federal courts here in Florida. They admittedly paid hundreds of thousands
of dollars to incarcerated Colombian criminals who served as their fact witnesses against
Drummond. It was only through Drummonds third party subpoenas that this conduct came to
light.1 Once it did come to light, the Northern District of Alabama held a three-day evidentiary
hearing and, on December 7, 2015, entered a 50-page memorandum opinion in which it found an
unrebutted prima facie case that Collingsworth and C&S bribed witnesses, suborned perjury and
perpetrated a massive fraud on the court. Ex. 1 (Dec. 7, 2015 Crime-Fraud Opinion).2
Von Allmen provided a credit facility to C&S during the time period in which its witness
payments reached their greatest frequency and amount. A response to Drummonds subpoena
1

A number of Collingsworths computers and hard drives, as well as an untold number of his
emails, have also gone missing during the course of this litigation. Ex. 3. Accordingly, third
party subpoenas may be the only way for Drummond to obtain critical documents that are no
longer in Defendants possession.

C&S appealed the Northern District of Alabamas order applying the crime-fraud exception to
it. That appeal, which involves the narrow issue of the application of agency principles in the
context of the crime-fraud exception, is presently pending before the Eleventh Circuit. The
Eleventh Circuit rejected Collingsworths attempt to appeal the Northern District of Alabamas
order applying the crime-fraud exception to him. Ex. 4 (March 16, 2016 Order).

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will help to provide a complete picture of C&Ss finances, which will reveal the extent to which
there are unexplained withdrawals or expense descriptions, and will provide the basis on which a
forensic accounting can be done to ascertain the origin, scope and purpose of their witness
payments. Moreover, the amount of money expended by C&S in its unsuccessful pursuit of
litigation against Drummond is relevant to Defendants motive in writing their defamatory
letters. And, because Drummond seeks punitive damages, information relating to C&Ss wealth
is relevant. Documents in Von Allmens possession will bear on each of these critical issues.
Importantly, the Northern District of Alabama already held that litigation financing
documents which appear to constitute the majority of documents being withheld by Von
Allmen are relevant and discoverable. In fact, the Northern District of Alabama already
ordered the production of documents from another of C&Ss litigation financiers over C&Ss
objections (which is the litigation financing that the Von Allmen credit facility replaced).
There is no principled reason why this Court should reach a different result here, especially in
light of the Northern District of Alabamas intimate knowledge of the facts in this complex case,
which span continents, languages and more than a decade.
Furthermore, Drummonds subpoena does not seek privileged information. C&S has
an extensive business relationship with Von Allmen that is entirely separate from the firms legal
representation of him. Indeed, since March 2010, Von Allmen has apparently been the firms
financier.

Documents relating to Von Allmen and C&Ss business relationship are not

privileged, as they are not confidential communications between the attorney and client
regarding the matter of representation. In re Grand Jury Matter No. 9101386, 969 F.2d 995,
997 (11th Cir. 1992) (emphasis added). The only information Drummond seeks which relates to
cases in which C&S served as Von Allmens counsel pertains to the payment and receipt of fees.

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Such information is not privileged and is directly relevant to the issues in this case.
MEET AND CONFER EFFORTS
The parties meet and confer efforts were extensive and have been documented in the
prior joint filings. See Docs. 9, 11, 13, 15 & 17. 3 Drummond was willing to continue to engage
in efforts to resolve this subpoena, see Ex. 5 (June 22, 2016 Wells Ltr) & Ex. 6 (June 30, 2016
Wells Ltr), but C&S and Mr. Von Allmen were not. Ex. 7 (June 28, 2016 Paulk Ltr). After it
became apparent that the parties were at an impasse, Drummond asked Von Allmen and C&S to
produce a number of specific documents which were part of the May 16th attorneys-eyes-only
review so that Drummond could utilize them in this filing. Those documents are particularly
relevant to (1) the nature of the relationship between Von Allmen and C&S, (2) the nature of
Von Allmens financial interest in C&Ss contingency fee cases, and (3) the money provided by
Von Allmen that C&S used to finance its contingency fee cases. Von Allmen and C&S refused.
Ex. 8 (July 15, 2016 Paulk email).
FACTUAL AND PROCEDURAL HISTORY
In 2011, C&S and Collingsworth sent defamatory letters to government officials and one
of Drummonds business partners, stating as objective fact that Drummond was complicit in the
murder of hundreds of Colombian citizens and urging the recipients of the letters to sever all
business ties with Drummond. Ex. 9 (Am. Compl.). In its motion to quash, C&S describes those
letters as based upon facts gathered by Mr. Collingsworth and co-counsel in ancillary cases . . .
against Drummond for human rights violations in Colombia. Doc. 1 at 1. In other words, as
support for the truth of their defamatory letters, Defendants are relying on the testimony of
imprisoned Colombian criminals, many of whom are admitted mass murderers, which

Doc. __ refers to the Docket Entry on this Courts docket sheet for this miscellaneous action.

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Defendants obtained in previously filed litigation against Drummond.4 Whether Defendants

have a reasonable belief in the truth of that testimony is at the heart of this case.
During this defamation case, it came to light that every witness who had testified in
letters rogatory proceedings in Balcero against Drummond . . . received payments. Ex. 1 (Dec.
7, 2015 Mem. Op.) at 16. When C&S and Collingsworth first produced information regarding a
few of these payments several years ago, Drummond moved to compel production of witness
payment and litigation financing information.

The Northern District of Alabama granted

Drummonds motion and, with respect to litigation financing, held as follows:

THE COURT: Im going to order this: Yall have to provide them information
about who you sought financing from and what payments you received and what
the terms of the financing were.
MR. SMITH [Defendants counsel]: Okay.
THE COURT: You dont have to disclose and you will provide in camera
anything that is a status report or an analysis of your case, either to secure
financing or to maintain financing.
MR. SMITH: Yes, Your Honor.
[. . .]
MR. WELLS [Drummonds counsel]: . . . Theres one additional category that
would be within the financing not mentioned which would sort of be the ongoing
draw requests Ill call them, expense requests.

Since 2002, Collingsworth and C&S have filed multiple cases against Drummond alleging that
Drummond collaborated with Colombian paramilitaries. None have been successful. The first
case concluded at the trial court level in 2007, and was affirmed on appeal by the Eleventh
Circuit Court of Appeals in 2008. Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir.
2008). After the affirmance, the second (Baloco) and third (Balcero) cases were filed in 2009,
and dismissed by the trial court in 2012 and 2013, respectively. Both dismissals were affirmed
by the Eleventh Circuit and are now final. Baloco v. Drummond Company, Inc., 767 F.3d 1229
(11th Cir. 2014), cert. denied, 136 S. Ct. 410 (2015); Doe, et al. v. Drummond Company, Inc., et
al., 782 F.3d 576 (11th Cir. 2015), cert. denied, 136 S. Ct. 1168 (2016). The last case, filed in
2013, was dismissed by the district court on January 26, 2016. That dismissal is the subject of a
pending appeal in the Eleventh Circuit.
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THE COURT: Yeah, I think any -- I didnt say this maybe. I meant to say this.
Actual payments. Actual money advanced or loaned or provided to prosecute
these actions. I dont think thats a work product either.
[. . .]
THE COURT: I would say that thats got to be produced. I dont think thats work
product. In other words, if we have an operating fund for the firm, an expense
fund, and were pulling money from that in order to make security payments,
thats what youre concerned about.
MR. WELLS: Thats right.
THE COURT: Yeah, I think thats discoverable. Okay?
Ex. 10 (Oct. 10, 2013 Hrg. Tr.) at 35:4-17; 36:2-11; 38:18-39:17.
Five days later, the Northern District of Alabama entered a written order which
summarized its verbal orders issued during the hearing. See Ex. 11 (Oct. 15, 2013 Order) at 2;
see also id. at 1 (The court made general rulings on certain of these broad categories during the
hearing). With respect to litigation financing, the court summarized its ruling as follows:
Interrogatories and requests for production about the financing of litigation
brought by Mr. Collingsworths team against Drummond are not overbroad and
are properly within the scope of discovery to the extent that the requests involve
who financing was sought from, what payments were received, how the need for
money was characterized, what the terms of the financing were, and information
on actual money advanced or loaned or provided to prosecute the actions.
This includes internal financing that may have been provided by Conrad &
Scherer, LLP. For any documents withheld thereafter on grounds of attorney
client privilege or work product, including status reports, the Magistrate Judge
will examine the privilege log and related documents and will make independent
findings for each issue remaining in dispute.
Id. at 2-3.
In the months that followed, Drummond pressed for full discovery of witness payment
and litigation financing documents. Rather than produce that evidence, C&S and Collingsworth
fraudulently concealed it. They made knowingly false statements in response to direct questions
from a federal judge, signed categorically false affidavits and interrogatory responses, and made

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countless misrepresentations in pleadings filed all across the country. As held by Judge Proctor
in the Northern District of Alabama, The extent of these misrepresentations rises far above the
level of mere discovery violations to evidence that, if believed by the trier of fact, would
establish some ongoing fraudulent violation. Ex. 1 (Dec. 7, 2015 Mem. Op.) at 8-20. In May
2014, C&S even altered financial records it did produce to fraudulently conceal evidence of
payments to witnesses. Id. at 16.
Florida courts have also been the victims of C&S and Collingsworths fraud.

For

example, in a brief filed with this Court relating to another of Drummonds subpoenas to 1st
United Bank, C&S represented that its witness payments were necessary costs to relocate
family members of three witnesses whose family members were threatened by armed thugs after
the three witnesses were on record implicating Drummond in human rights crimes and before the
witnesses were about to testify against Drummond. Ex. 12 at 8 (emphasis added). The
Northern District of Alabama held that these representations were categorically false. Ex. 1
(Dec. 7, 2015 Mem. Op.) at 8-20 (Defendants representations regarding paying three
witnesses were false).
A few months later, in September 2014, C&S submitted a filing in Florida state court in
Broward County. Ex. 13. Attached to that filing was an affidavit signed by Collingsworth that
did not disclose that witnesses Jaime Blanco, El Tigre and Samario5 had been paid in excess of
$200,000. Instead, Collingsworth identified Charris, Duarte, Gelvez, and Halcon, and Claudia

Blanco, El Tigre, and Samario are all imprisoned Colombian paramilitaries or paramilitary
collaborators, whose testimony Collingsworth and C&S obtained in one of the ATS cases against
Drummond.

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Balcero6 as the only recipients of Defendants so-called security payments. Id. The Northern
District of Alabama specifically cited this filing as part of its finding that Defendants perpetrated
a fraud on the court. Ex. 1 (Dec. 7, 2015 Crime-Fraud Op.) at 17; see also id. at 48.
Importantly, Drummond only uncovered Defendants fraud because third parties
produced documents in response to Drummonds subpoenas.

For example, a subpoena

Drummond served on the law firm of Parker Waichman, LLP C&Ss former co-counsel who,
like Von Allmen, also helped finance C&Ss litigation expenses ultimately revealed that
witnesses El Tigre, Samario and Blanco were all paid. Ex. 14 (Sept. 1-3 Hrg. Tr.) at 480:19
481:2 (THE COURT: . . . Ive got to take notice of the fact that Parker Waichman provided
information that keyed the plaintiffs in for the first time that what [Collingsworth] was saying
was categorically false. They suspected that, but they didnt know that).
In September 2015, after the scope of Defendants fraud on the court became apparent,
the Northern District of Alabama held a three-day evidentiary hearing to determine whether the
crime-fraud exception applied to C&S and Collingsworth. During the hearing, it received more
than 700 evidentiary exhibits and heard testimony from numerous live witnesses, including
Collingsworth and C&S Managing Partner William (Bill) R. Scherer, Jr. Ex. 14 (Sept. 1-3
Hrg. Tr.). On December 7, 2015, the court entered a 50-page memorandum opinion applying the
crime-fraud exception to C&S and Collingsworth. Ex. 1 (Dec. 7, 2015 Mem. Op.). The court
found and it is undisputed that Collingsworth and C&S paid hundreds of thousands of dollars
to the witnesses upon whose testimony Defendants defamatory letters are admittedly based.
Among other things, the court held that

Charris, Duarte, Gelvez, and Halcon are all imprisoned Colombian paramilitaries who
Collingsworth and C&S identified as witnesses in one of the ATS cases against Drummond.
Claudia Balcero was the lead plaintiff in that case.

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Collingsworth repeatedly made knowingly false representations in pleadings,

affidavits, correspondence, and open court. The extent of these misrepresentations
rises far above the level of mere discovery violations to evidence that, if believed
by the trier of fact, would establish some ongoing fraudulent violation
[. . .]
[T]he court has no hesitation in finding that there is (at least) probable cause to
believe that Collingsworth, while prosecuting lawsuits on behalf of his firm,
engaged in witness bribery and suborning perjury[.]
[]
[I]t would be incredulous to believe that no one at Conrad & Scherer other than
Collingsworth knew of the payments made to witnesses in this case. Payments
were delivered on a monthly basis by the firm, using the firms money, and
through the firms normal approval process as documented in the firms business
records. (Doc. #405 at 1-4). As of May 23, 2011, at a minimum, Terrence
Collingsworth, Bill Scherer, Richard Drath, Billy Scherer, Susana Tellez,
Lorraine Leete, Victoria Ryan, Pauline Kroper, and Danielle Kisslan had all
received written notice that El Tigre and Samario had been paid.
Ex. 1 (Dec. 7, 2015 Crime-Fraud Op.) at 17-18, 26, 37 & n.15.
C&S, Doug Von Allmen and Other Litigation Financiers
C&S has apparently represented Douglas Von Allmen in a number of legal matters since
2009. Doc. 1-3 (Frevola Decl.) 3. It is clear, however, that the firms relationship with Von
Allmen is not limited to providing legal counsel. On March 19, 2010, Von Allmen provided a
credit facility to C&S that was used to finance Conrad & Scherers general operating expenses.
Doc. 1 at 2. Despite its extensive ties with Von Allmen, C&S has not produced a single
communication with him.7 Nor did Von Allmen appear on any of Defendants privilege logs.
In fact, despite being ordered in October 2013 to disclose who financing was sought
from, what payments were received, how the need for money was characterized, what the terms
7

Von Allmen produced one document in response to Drummonds subpoena a publicly

available Forbes article titled Labor-Rights Lawyer Paid Witnesses and Lied About It, Judge
Says that was published approximately one week after the Northern District of Alabama
released its December 7, 2015 crime-fraud opinion.

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of the financing were, and information on actual money advanced or loaned or provided to
prosecute the actions, Ex. 11 (Oct. 15, 2013 Order) at 2-3, C&S did not disclose Von Allmens
identity as a litigation financier until January 29, 2016. Ex. 15 (Jan. 29, 2016 Defs2nd Am. Irog
Resp.). That disclosure revealed that the Von Allmen credit facility replaced a prior credit
facility from a different litigation financier Stillwater Asset-Backed Fund, LP (Stillwater).
C&S repaid the Stillwater credit facility on the same day that it obtained the Von Allmen credit
facility March 19, 2010. Id. This is a critical fact because, as explained in detail below, the
Northern District of Alabama already ordered the production of nearly 4,000 pages of documents
related to the Stillwater credit facility over C&Ss objections.
In March 2015, Drummond served a subpoena on Oxbridge Financial Group
(Oxbridge), an entity that served as the intermediary between Stillwater and C&S. Ex. 16
(Oxbridge subpoena). That subpoena sought substantially similar documents to those sought by
the instant subpoena to Von Allmen. Compare id. with Doc. 1-1. C&S objected, asserting (as
they have here) privilege and relevancy arguments. On August 14, 2015, the Special Master in
the defamation action issued an extensive Report and Recommendation (R&R) and found that
the vast majority of documents produced by Oxbridge were relevant and not privileged. Ex. 17
(Doc. 299 (Aug. 14, 2015 R&R)) at 7-45. On September 15, 2015, the Northern District of
Alabama adopted that R&R in full as it related to the Oxbridge subpoena, Ex. 18 (Doc. 375
(Sept. 15, 2015 Order)) at 3, resulting in the production of nearly 4,000 pages of documents.
Included in that production was the following:

Budgets & Cash Flow charts and spreadsheets (OXBRIDGE 0001019)

Partner compensation agreements (OXBRIDGE 0001020-1030)

Loan Term Letters (OXBRIDGE 0001093-1096)

Due Diligence Letters (OXBRIDGE 0001296-1297)

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Quarterly Loan Monitoring Reports (OXBRIDGE 0003381)

Conrad & Scherer Balance Sheets (OXBRIDGE 0002962-2963)

Conrad & Scherer Profit & Loss Statements (OXBRIDGE 0002964-2966)

Conrad & Scherer Tax Returns (OXBRIDGE 0003831-3879)

Bill Scherers Tax Returns (OXBRIDGE 0003921-3950)

Scherer Realty LLP Tax Returns (OXBRIDGE 0003951-3980)

Credit Agreements, including

OXBRIDGE 0003228-3258)

Account Statements from C&Ss Operating Accounts at 1st United Bank

(OXBRIDGE 0002892-2903) and SunTrust Bank (OXBRIDGE 0001858-1873)

Collateral evaluations (OXBRIDGE 0001391-93)

Correspondence between C&S and its litigation financiers (OXBRIDGE 00012661267; 2721-2732)

Internal Oxbridge and Stillwater memorandums relating to the Stillwater credit

facility (OXBRIDGE 0002734-2735; 004121-4122)

drafts

thereof

(OXBRIDGE

0003881-3883;

Ex. 19 (Exemplar Oxbridge Financing Documents).

In addition to illustrating the discoverability of various types of documents, the Oxbridge
production exemplified why such documents are critical to uncovering the true scope and extent
of Defendants witness payments. Virtually all of the witness payments at issue originated from
C&Ss Operating Account, and it is undisputed that money from C&Ss Operating Account was
utilized to make payments to at least six different witnesses Halcon, Charris, Duarte, Gelvez,
Samario and El Tigre since March 19, 2010. Ex. 1 (Dec.7, 2015 Mem. Op.) at 1, n.13, 20-26
& n.15. All of these payments were laundered through intermediaries. One of C&Ss most
frequently used intermediaries is a Colombian criminal lawyer named Ivan Otero, who served as
the conduit for hundreds of thousands of dollars in admitted payments to witnesses El Tigre,

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Samario and Jaime Blanco.8 On March 31, 2009, just a few weeks after two of Oteros clients
first signed declarations against Drummond, Ex. 20 (El Tigre and Samario March 2009
declarations), C&S wired $80,000 to Otero from its Operating Account. Ex. 21.9 To date, the
only documentary evidence of this payment is the bank statement produced in response to
Drummonds subpoena to Oxbridge.
These same bank statements also confirm that C&S deposited draws from the Stillwater
credit facility directly into the firms Operating Account. Ex. 21 (reflecting multiple I/W
Stillwater). The Von Allmen credit facility replaced the Stillwater credit facility, and C&S
utilized the Von Allmen credit facility to finance Conrad & Scherers general operating
expenses. Doc. 1 at 2. Money the firm received from Von Allmen was likely deposited into the
same Operating Account, where it was then utilized by C&S to make witness payments.
LEGAL ARGUMENT
I.

C&S FAILED TO PRESERVE ANY ARGUMENT WITH RESPECT

THE REQUESTS AT ISSUE.

TO THE

MAJORITY

OF

C&S does not even mention Request Nos. 3, 4, 5, 7, 8, 11-30 and 32-35. See Doc. 1
generally. Accordingly, any argument with respect to these requests is waived. Donahay v.
Palm Beach Tours & Transp., Inc., No. 06-61279, 2007 WL 1119206, at *2 (S.D. Fla. Apr. 16,
8

Collingsworth and C&S also promised Otero, whom they describe as a key member of their
litigation team, a contingency fee in at least two of their cases against Drummond, Ex. 22 (Nov.
7, 2013 Collingsworth Decl.) at 51, despite the fact that Otero was the criminal lawyer for
many of their so-called fact witnesses (including El Tigre and Samario). Ex. 1 (Dec. 7, 2015
Mem. Op.) at 29. Recently discovered information strongly suggests that Otero also served as a
conduit for payments from C&S to other imprisoned Colombian criminals who signed
declarations against Drummond, including Oscar David Perez Bertel (alias Yuca), Jose
Aristides Peinado Martinez (Peinado), Edgar Ariel Cordoba Trujillo (alias 57), and Javier
Ernesto Ochoa Quinonez (alias El Mecanico).

C&S has claimed ignorance with respect to exactly what Otero did with this $80,000. There is
no dispute, however, that Otero served as a conduit for more than $100,000 in payments made
in $2,700 monthly installments from C&Ss Operating Account that C&S subsequently made
to El Tigre and Samario. Ex. 1 (Dec. 7, 2015 Mem. Op.) at 20 n.15.

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2007) (granting a motion to compel where a litigant failed to provide the Court with any
substantive argument relating to certain requests and explaining that the Court deems
Defendants arguments in this respect as waived) (collecting cases and citing Southern District
of Florida Local Rule 7.1A). Documents responsive to these requests should be produced.
II.

THE DOCUMENTS DRUMMOND SEEKS ARE UNQUESTIONABLY RELEVANT.

C&S contends that Request Nos. 1, 2, 6, 9, 10, 31, 36 and 37 are all irrelevant. Doc. 1

at 5. Von Allmen also raised an irrelevancy objection to these requests. Ex. 2 (Von Allmen
Objections) at Req. Nos. 1, 2, 6, 9, 10, 31, 36 and 37.
A.

Neither C&S Nor Von Allmen Carried Their Burden With Respect to
Request Nos. 2, 6, 31, 36 and 37.

[T]he burden of showing that the requested information is not relevant to the issues in
the case is on the party resisting discovery. Donahay v. Palm Beach Tours & Transp., Inc., 242
F.R.D. 685, 687 (S.D. Fla. 2007) (citations omitted). As explained below, C&Ss cursory
assertions of irrelevancy with respect to Request Nos. 2, 6, 31, 36 and 37 are insufficient. For
example, C&S admits that it has responsive documents to Request Nos. 6 and 31 (seeking
written agreements between Von Allmen and certain specified individuals/entities, and
communications with any person or entity related to Lee Bialostok, respectively), but offered no
argument as to why such documents are irrelevant.10 C&S also fails to explain why Request No.
2 which asks for Von Allmens communications regarding other credit facilities or loans
provided to C&S used to finance litigation seeks irrelevant information. Any such argument
10

Lee Bialostok was C&S and Collingsworths co-counsel in one of their cases against
Drummond that has been dismissed - Claudia Balcero, et al. v. Drummond Co., Inc., et al., 2:09cv-1041-RDP (N.D. Ala.). [E]very witness who had testified in letters rogatory proceedings in
Balcero against Drummond . . . received payments. Ex. 1 (Dec. 7, 2015 Mem. Op.) at 17-18.
Bialostok was involved in correspondence relating to payments to witnesses, including Samario
and El Tigre. See Ex. 23 (May 22, 2011 deps in the can email) (the confidentiality designation
on this document has been lifted).

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is a non-sequitur, as the Northern District of Alabama already ordered the production of

documents from C&Ss other litigation financiers, finding them both relevant and discoverable.
See pages 8-11 supra.
C&S also asserts that Request No. 36 and Request No. 37 are irrelevant. C&Ss only
support for this argument is its bare contention that [t]hese requests do no seek relevant
information, are improper, and are designed solely to harass Mr. Von Allmen and Conrad &
Scherer. Doc. 1 at 5. These documents will show the nature of the relationship between C&S
and Von Allmen, and will illustrate that Von Allmen and C&S viewed the firms contingency fee
cases including the cases against Drummond as valuable assets that the firm would do
anything to win. C&Ss failure to articulate any substantive argument with respect to these
requests is fatal. Donahay, 2007 WL 1119206, at *2.11
B.

Drummonds requests are reasonably calculated to lead to the discovery of

admissible evidence directly relevant to its claims in this case.

Requests 1, 9 and 10 are the only requests for which C&S even arguably offers a
substantive irrelevancy argument. With respect to Request No. 1, C&S contends that [t]he
credit facility provided by Mr. Von Allmen to Conrad & Scherer provides general financing to

11

C&S and Von Allmen both appear to raise a proportionality objection, but neither provides
any analysis of the factors applicable to such an objection. See Fed. R. Civ. P. 26(b)(1). That
failure is a dispositive flaw in their argument. Regardless, the factors included in Rule 26(b)(1)
weigh in favor of a finding that Drummonds requests are proportional to the needs of this
case. Id. The importance of the issues at stake in this case could not be greater Defendants
have stated as objective fact that Drummond was complicit in the murder of hundreds of people
by a terrorist organization. The amount in controversy, not surprisingly, is substantial. Von
Allmen and C&S do not lack resources: Von Allmen is an extremely successful businessman,
and C&S holds itself out as one of Floridas leading firms. http://www.conradscherer.com/.
Drummond has no way to obtain the information it seeks except through discovery requests, and
that information is vital to understanding (and proving) two indisputably critical issues in this
case: (1) the Defendants state of mind in writing their defamatory letters and (2) the scope,
nature and extent of their witness payments. For the same reasons, Von Allmens burden of
responding does not outweigh Drummonds likely benefit.
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the law firm and was not earmarked for any specific litigation, and therefore documents related
to that credit facility are purportedly irrelevant. Doc. 1 at 4. With respect to Request Nos. 9 and
10, C&S argues that they call for documents regarding billing and payment information for
legal matters unrelated to the Drummond litigation. Id. at 3. These arguments are unavailing.
C&Ss argument with respect to Request No. 1 has already been rejected by the Northern
District of Alabama, which ordered the production of documents from another of C&Ss
litigation financiers over C&Ss objections. See pages 8-11. As explained above, there is no
principled distinction between the Stillwater credit facility and Von Allmens credit facility.
C&S and Von Allmens contention that certain documents purportedly do not mention
Drummond or any human rights litigation is inapposite. See Ex. 24 (Von Allmen Log),
generally; see also Doc. 1 at 2 (The credit facility . . . was not earmarked for any specific
litigation, including the Drummond litigation or any other human rights case.). Section 4.9 of
the Stillwater credit facility is titled

and provided that money loaned to C&S

would be used to pay

Ex. 25. C&S similarly described the Von Allmen credit facility as used to fund the
firms general operating expenses. Doc. 1 at 2.

. Ex. 25. According to C&S, nor does the Von Allmen credit
facility. The Northern District of Alabama nevertheless ordered the production of thousands of
pages of documents relating to the Stillwater credit facility over C&Ss objections. See pages 811 supra. The result should be no different here.
Tellingly, C&S does not actually state (or offer a sworn affidavit) that money from the
Von Allmen credit facility was not used in litigation against Drummond. In other words, C&S

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does not deny that it used some of the funds it obtained from Von Allmen in litigation against
Drummond.12 The possibility that those funds were so used is all that is required to render these
documents discoverable: [D]iscovery should be allowed if there is any possibility that the
information sought may be relevant. La Mura v. United States, 765 F.2d 974, 982 n.12 (11th
Cir. 1985). Indeed, that is the whole point: The purpose of discovery is to require disclosure of
relevant information so that the resolution of the civil action is based upon a full and accurate
understanding of the facts. Lesti v. Wells Fargo Bank NA, 297 F.R.D. 665, 666-67 (M.D. Fla.
2014) (citing United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)). Rule 26,
quite simply, sets forth a very low threshold for relevancy, and [t]hus, the court is inclined to
err in favor of discovery rather than against it. Miller v. MP Global Products, LLC, No.
CIV.A. 12-00747-KD-N, 2014 WL 1017887, at *2 (S.D. Ala. Mar. 17, 2014) (citations omitted).
For all of the foregoing reasons, neither C&S nor Von Allmen can legitimately contend
that the documents sought by Drummonds subpoena are irrelevant for purposes of discovery in
this case.13
III.

C&S AND VON ALLMENS PRIVILEGE ARGUMENTS ARE UNAVAILING.

12

Notably, C&S never claimed ignorance regarding whether it utilized the Stillwater credit
facility to finance litigation against Drummond. To the contrary, Bill Scherer testified that C&S
sought financing from Oxbridge Financial to support a variety of cases in which it was
involved, and that the financing would be used, in part, in [t]he cases involving Drummond.
Ex. 25 (B. Scherer Apr. 12, 2015 Aff. ISO MTQ Oxbridge R45) at 7.
13

C&S alternatively requests the entry of a protective order, generally reciting its irrelevancy
argument. See Doc. 1 at 5-6. The party requesting a protective order must make a specific
demonstration of facts in support of the request as opposed to conclusory or speculative
statements about the need for a protective order and the harm which will be suffered without
one. Dunford v. Rolly Marine Serv. Co., 233 F.R.D. 635, 636 (S.D. Fla. 2005). C&S failed to
make any such specific demonstration, and thus its request for protective order should be
denied. Arnold v. Wausau Underwriting Ins. Co., No. 13-60299-CIV, 2013 WL 5488520, at *4
(S.D. Fla. Sept. 30, 2013) (denying a motion for a protective order where the Defendants
interests outweigh the generalized and conclusory proffer of harm Plaintiff has made).

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The phrase work product does not appear once in Von Allmens Log or C&Ss motion
to quash. The only privilege at issue, therefore, is the attorney-client privilege. C&Ss motion
identifies seven requests (Request Nos. 1, 2, 6, 9, 10, 31 and 37) that purportedly call for
privileged documents. Doc. 1 at Section III-A; see also Ex. 2 (Von Allmen Objections) at Req.
Nos. 1, 2, 6, 9, 10, 31 and 37. Despite C&Ss broad discussion of privilege, only 12 of the 400
entries on Von Allmens Log of Privileged and Confidential, Irrelevant Documents are
actually described as an attorney-client communication. Ex. 24 (Von Allmen Log) at Entry
Nos. 4, 5, 6, 7, 62, 63, 126, 127, 273, 362, 363 & 371. Nevertheless, because C&S makes
generalized privilege arguments in response to each of these Requests, Drummond responds
accordingly.
Request Nos. 1 and 2 seek documents that relate to either (1) the Von Allmen credit
facility provided to C&S or (2) any other credit facility provided to C&S by a third party. Again,
the Northern District of Alabama has already held that documents responsive to such requests
must be produced. See pages 4-5, 8-11 supra. This Court need look no further to determine that
Request Nos. 1 and 2 do not seek privileged material. Fincher v. Keller Indus., Inc., 129 F.R.D.
123, 125 (M.D.N.C. 1990) (Even though this Court is the proper one to rule on plaintiffs
motion, it nevertheless will look at the status of the proceedings in the district where the action is
pending and at relevant rulings issued by that court.); In re Naranjo, 768 F.3d 332, 348 (4th Cir.
2014) (adopting and affirming the issuing courts prior privilege holdings when deciding a
motion to quash, and explaining, By applying comity in these and similar circumstances, courts
achieve at least two positive results: avoiding an unnecessary burden on the federal judiciary
and preventing the embarrassment of conflicting judgments.).
C&S and Von Allmens privilege objections also fail because they go well beyond what

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is actually protected by the attorney-client privilege. As explained by the Eleventh Circuit, the
argument that any communication between an attorney and client is protected by the privilege is
overbroad.... The privilege is ... designed to protect ... only confidential communications between
the attorney and client regarding the matter of representation. In re Grand Jury Matter No. 91
01386, 969 F.2d at 997 (emphasis added); see also MapleWood Partners, L.P. v. Indian Harbor
Ins. Co., 295 F.R.D. 550, 592 (S.D. Fla. 2013) (a communication must be specifically for the
primary purpose of seeking legal advice, i.e., the communication would not have been made but
for the contemplation of legal services) (citation omitted).
None of the documents responsive to Requests 1 and 2 which relate to litigation
financing meet this criteria. C&S does not even argue, much less offer evidence to show, that
it was acting as Von Allmens counsel when it was negotiating with, and later obtaining
financing from, Von Allmen. Nor has C&S shown that it was acting as Von Allmens legal
counsel when communicating with him regarding credit facilities provided by other litigation
financiers. Accordingly, they failed to carry their burden of demonstrating that these documents
are privileged. MapleWood Partners, 295 F.R.D. at 592 (party asserting the privilege bear[s]
the burden of establishing, by a preponderance of the evidence, that the privilege applies).14
C&S and Von Allmens privilege arguments are further undermined by the well-settled
principle that financial transactions involving an attorney and his/her client are not privileged:
Financial transactions between the attorney and client, including the
compensation paid by or on behalf of the client ... are not within the privilege
except in special circumstances not present here. An attorney who acts as his
clients business advisor, or his agent for receipt or disbursement of money or
property to or from third parties ... is not acting in a legal capacity, and records of
14

For the same reasons, Von Allmen cannot withhold his communications with C&S relating to
an article that discussed the Northern District of Alabamas crime-fraud opinion. See Ex. 2 (Von
Allmen Objections) at Nos. 8, 13-18, 22-25, 27 & 29. Such communications are not regarding
a matter in which C&S represents Von Allmen. In re Grand Jury, 969 F.2d at 997.

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such transactions are not privileged.

In re Grand Jury Investigation, 769 F.2d 1485, 1488 (11th Cir. 1985) (citation omitted).
[T]he subpoena at issue in the present case sought all records of property
transactions including but not limited to ... payments of funds. These records
also are not protected by the attorney-client privilege. The privilege only protects
communications between an attorney and his client made for the purpose of
securing legal advice. Bierman, 788 F.2d at 1512. An attorney who acts as his
clients agent for receipt or disbursement of money or property to or from third
parties is not acting in a legal capacity, and records of such transactions are not
privileged.
In re Grand Jury Subpoena, 831 F.2d 225, 227-28 (11th Cir. 1987). See also Huffman v. United
States, No. 07-80736-CIV, 2007 WL 4800643, at *5 (S.D. Fla. Nov. 29, 2007) (This District
has similarly held that documents relating to the financial transactions between the attorney and
client are generally not protected by attorney-client privilege). For this additional reason,
documents responsive to Request Nos. 1, 2, 9 and 10 are not privileged.
Request No. 6 seeks written agreements between Von Allmen and specified individuals
and entities; Request No. 9 seeks documents and communications which reflect money provided
by Mr. Von Allmen to C&S; and Request No. 10 seeks documents showing money provided to
Von Allmen by C&S. C&S and Von Allmen objected to these three requests on privilege
grounds, arguing that they require production of retainer agreements, awards, confidential
settlement agreements, communications and payments. Doc. 1 at 3. As a threshold matter,
C&S does not cite any legal authority in support of its privilege argument as to Request Nos. 6, 9
and 10. See Doc. 1 at 3. That failure is dispositive. Belony v. Amtrust Bank, No. 09-82335-CIV,
2011 WL 2297669, at *2 (S.D. Fla. June 8, 2011) (Defendants failure to cite any authority for
this principle makes it difficult for the Court to rule in its favor. Defendants deficient
memorandum of law is itself a basis to deny its motion.).
Regardless, any retainer agreements responsive to Request No. 6 are not privileged:

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retainer agreements are generally not protected by the attorney-client privilege. Armor Screen
Corp. v. Storm Catcher, Inc., No. 07-81091-CIV-RYSKAMP, 2009 WL 2767664, at *1 (S.D.
Fla. Aug. 31, 2009) (citing O'Neal v. U.S., 258 F.3d 1265, 1276 (1lth Cir. 2001)). The financial
transactions sought by Request Nos. 9 and 10 are also not privileged, as [t]he law in this circuit
is that matters involving the receipt of fees from a client are not generally privileged. In re
Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982) (collecting cases). For example, in F.T.C. v.
Cambridge Exch., Ltd., Inc., the Federal Trade Commission served a subpoena on a litigants law
firm, seeking all documents relating to payment received or promised by that litigant. 845 F.
Supp. 872 (S.D. Fla. 1993). The law firm (Kenny Nachwalter) filed a motion to quash,
arguing that the documents requested were privileged and therefore not subject to disclosure. Id.
at 874. This Court, relying on Eleventh Circuit precedent, summarily rejected that argument:
The Court disagrees. The general rule is that the identity of a client or receipt of
fees from a client are not normally within the attorney-client privilege. U.S. v.
Leventhal, 961 F.2d 936 (11th Cir. 1992); In re Grand Jury Proceedings 889,
899 F.2d 1039 (11th Cir. 1990). In fact, Courts have specifically held that billing
records, hourly statements, and fee arrangements which do not reveal client
communications are not protected by the attorney-client privilege.
Id. at 874 (emphasis added). See also S.E.C. v. Dowdell, No. 8:02MC94 T17TBM, 2006 WL
3876294, at *4 (M.D. Fla. May 15, 2006) (ordering production of billing records, hourly
statements, and fee arrangements) (citations omitted).15
Request No. 37 seeks documents relating to business ventures between William R.
Scherer, Jr., C&Ss managing partner, and Von Allmen. Notably, C&S and Von Allmen do not
actually claim that responsive documents are privileged. Rather, they claim that documents
responsive to this request may include documents . . . which are privileged. Doc. 1 at 3
15

C&S characterizes Request No. 31 (which seeks documents relating to Lee Bialostok) as
seeking privileged documents, see Doc. 1 at 4, but it offers no explanation of why this is so.
That failure is fatal to its argument. Donahay, 2007 WL 1119206, at *2.

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(emphasis added); see also Ex. 2 (Von Allmen Objections) at Req. No. 37. There is not a single
document on Von Allmens Log marked as responsive to Request No. 37. Ex. 24. These
conclusory assertions do not carry its burden of showing responsive documents are privileged.
IV.

CONFIDENTIALITY CLAIMS DO NOT IMMUNIZE DOCUMENTS FROM DISCOVERY.

Although C&S offers no substantive argument regarding confidentiality, the vast

majority of responsive documents appear to be withheld solely on confidentiality grounds. In

fact, of the 400 entries on the Von Allmen Log, more than 350 appear to be withheld solely on
confidentiality grounds, with no mention of any privilege whatsoever. See Ex. 24 (Von
Allmen Log).16 It is well settled that claims of confidentiality do not justify withholding
documents or information that is otherwise discoverable. Adelman v. Boy Scouts of America,
276 F.R.D. 681, 692 n.5 (S.D. Fla. 2011) (collecting cases and holding that purportedly
confidential documents are not immune from discovery). Concerns over confidentiality do
not merit denying discovery, but rather are more appropriately addressed with a protective order
limiting disclosure of the documents. Barrington v. Mortage IT, Inc., No. 07-61304-CIV, 2007
WL 4370647, at *1 (S.D. Fla. Dec. 10, 2007). There is already a Protective Order in this case
which provides protection for Confidential business information.

Ex. 27.

That Order

adequately addresses C&Ss confidentiality concerns.

WHEREFORE, Drummond respectfully requests that this Court deny C&Ss motion.

16

See, e.g., id. at Entry Nos. 1 (Confidential email), 13 (Confidential retainer agreement), 51
(Confidential fourth amendment to credit facility), 78 (Confidential spreadsheet), 284
(Confidential credit facility agreement), 391 (Confidential Settlement Statement).

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Dated: July 29, 2016.

Respectfully submitted,
/s/ Brett A. Barfield
Brett A. Barfield (Fla. Bar No. 192252)
brett.barfield@hklaw.com
Michael E. Rothenberg (Fla. Bar No. 74411)
michael.rothenberg@hklaw.com
Holland & Knight LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Tel: (305) 789-7602 / Fax: (305) 789-7799
-ands/ H. Thomas Wells, III*
H. Thomas Wells, III
ASB-4318-H62W
STARNES DAVIS FLORIE LLP
P.O. Box 59812
Birmingham, AL 35259
(205) 868-6000
Fax: (205) 868-6099
*Appearing pro hac vice, see D.E. 20.

Attorneys for Drummond Company, Inc.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the
Clerk of Court using CM/ECF on July 29, 2016, which will provide service on all counsel of
record on the below Service List.
By: /s/ Michael E. Rothenberg
Michael E. Rothenberg, Esq.

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SERVICE LIST
CONRAD & SCHERER, LLP
Albert L. Frevola, Jr., Esq.
633 S. Federal Hwy, 8th Floor
Fort Lauderdale, FL 33301
Telephone: (954) 462-5500
Facsimile: (954) 463-9244
Attorney for Defendant CONRAD & SCHERER, LLP
Service via CM/ECF