Drummond Company, Inc. v. Conrad And Scherer, Llp

885 F.3d 1324 (11th Cir. 2018)


Collingsworth (D), a D partner, represented Colombian citizens who sued Drummond (P) alleging that P had supported paramilitary groups in Colombia that murdered private citizens. Collingsworth (D) sued P under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991. Ultimately, P prevailed in each of the alien tort cases. While the alien tort cases were pending, Collingsworth (D) wrote letters on D stationary to the Dutch government and a Japanese company accusing P of supporting paramilitary groups that murdered hundreds of Colombian citizens. P sued Collingsworth (D) and D for defamation in federal court. Ds denied liability and raised several defenses, including that the statements in the letters were true and that they had not acted maliciously. P served discovery requests about the methods Collingsworth (D), and his litigation team had used in the alien tort cases to secure testimony from the witnesses, including information about any payments made to the witnesses. In hearings and other filings with the district court, Ds' outside counsel repeated that only Charris, Duarte, and Gelvez had received payments. All of these statements made in discovery were false. Ds admitted that El Tigre, Samario, and Blanco had also received payments. Multiple partners and employees at D were aware of these payments. After Ds disclosed these additional witness payments, P moved for sanctions, asserting that Ds had made false statements to the court by failing to disclose these payments. The court allowed P to depose Ds about the witness payments and related issues. Ds refused to answer many categories of questions posed in discovery, claiming that the information P sought was protected by the attorney-client privilege or the attorney work product doctrine. P asked the court to hold that the crime-fraud exception vitiated Ds' claims of attorney-client privilege and work product protection. The district court ordered a special master to review in camera the documents that Ds claimed were privileged or protected as attorney work product to determine whether each individual document was in furtherance of or closely related to a fraud on the court or crime and therefore should be produced to P. The district court certified that its order involved controlling questions of law as to which there may be a substantial ground for difference of opinion and that an immediate appeal may materially advance the litigation. The district court did not identify the specific controlling questions of law that it believed warranted interlocutory review. 

    1. Can agency principles be used to impute the application of the crime-fraud exception to an agent's principal where the principal has separately-held privileges as a co-defendant in the suit, and there is no finding that the exception applies directly to the principal?

    2. Can agency principles be used to impute the application of the crime-fraud exception to an agent's principal where the agent is operating as an attorney, and there is no finding that the client's behavior triggered the crime-fraud exception or that the exception applies directly to the principal?