FOR THE DISTRICT OF COLUMBIA DRUMMOND COMPANY, INC. … · 2:11-cv-3695-RDP (N.D. Ala.)...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DRUMMOND COMPANY, INC. 1000 Urban Center Dr., Suite 300 Birmingham, AL 35242

Plaintiff, v. TERRENCE P. COLLINGSWORTH, individually and as an agent of Conrad & Scherer, LLP 1156 15th St. NW, Suite 502 Washington, DC 20005 CONRAD & SCHERER, LLP 633 S. Federal HWY Fort Lauderdale, FL. 33301

Defendants.

)))))))))))) ) ) ) ) ) ) )

Case No. ____________ (Case No. 2:11-CV-3695-RDP pending in the Northern District of Alabama, Southern Division)

DEFENDANTS’ MOTION TO QUASH SUBPOENAS TO INTERNATIONAL RIGHTS

ADVOCATES AND INTERNATIONAL RIGHTS FORUM AND/OR MOTION FOR PROTECTIVE ORDER

Case 1:13-mc-00877-ABJ Document 1 Filed 08/16/13 of 27

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TABLE OF CONTENTS

I. Procedural and Factual History…………………………………………………………… 1 A. Defendant Collingsworth Is the Executive Director of Third-Party

IRAdvocates and Previously Was General Counsel of the ILRF………………… 1 B. The Subpoenas Seek Information Already Requested of Defendants

or Already Resolved in Discovery Disputes in the Related Human Rights Litigation……………………………………………………………….…. 4

II. Legal Argument A. Protective Order Should Be Issued, or in the Alternative, the Subpoena

Should Be Quashed Because It Seeks Privileged Material……………………..… 4 B. The Subpoenas Should Be Quashed Because They Seek the Same

Documents as Those Requested from the Defendants and the Information Drummond Seeks Must Be Requested from a Party………………....8

C. The Subpoenas Should Be Quashed Because the Requests are Overly

Broad and Drummond is on a Fishing Expedition for Information that Is Not Relevant or Likely to Lead to the Discovery of Admissible Evidence…………………………………………………………………………. 12 1. Documents Relating to Payments and Contacts in

Colombia……………………………………………………………….... 15 2. Documents relating to IRAdvocates’ internal records………………...… 16 3. Documents Relating to Llanos Oil………………………………….…… 17 D. Defendants Seek Sanctions Against Drummond for Misuse of Its

Subpoena Power………………………………………………………..……….. 18 III. Conclusion…………………………………………………………………………….….19


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TABLE OF AUTHORITIES CASES AF Holdings LLC v. Does 1-1,058,

286 F.R.D. 39 (D.D.C. 2012)……………………………………………………………. 10 Albany Molecular Research, Inc. v. Schloemer,

274 F.R.D. 22 (D.D.C. 2011)……………………………………………………………... 6 Alberts v. HCA Inc.,

405 B.R. 498 (D.D.C. 2009)……………………………………………………………...18 Alexander v. F.B.I.,

186 F.R.D. 71 (D.D.C. 1998)……………………………………………………………... 5 Amobi v. Dist. of Columbia Dep’t of Corr.,

257 F.R.D. 8 (D.D.C. 2009)………………………………………………………………. 6 Builders Ass’n of Greater Chicago,

96 C 1122, 2002 WL 1008455 (N.D. Ill. May 13, 2002)……………………………….. 19 Call of the Wild Movie, LLC v. Does 1-1,062,

770 F. Supp. 2d 332 (D.D.C. 2011)………………………………………………………. 9 Castle v. Sangamo Weston, Inc.,

744 F.2d 1464 (11th Cir. 1984)……………………………………………………………7 Equal Rights Ctr. v. Post Properties, Inc.,

246 F.R.D. 29 (D.D.C. 2007)……………………………………………………………... 7 Federal Trade Comm’n v. American Tobacco Co.,

264 U.S. 298 (1924)……………………………………………………………………... 15 Flatow v. Islamic Republic of Iran,

196 F.R.D. 203 (D.D.C.2000)……………………………………………………………. 9 Food Lion, Inc. v. United Food & Commercial Workers Int’l Union,

103 F.3d 1007 (D.C. Cir. 1997)…………………………………………………………. 14 Hasbro, Inc. v. Serafino,

168 F.R.D. 99 (D. Mass. 1996)………………………………………………………….. 10 Hickman v. Taylor,

329 U.S. 495 (1947)………………………………………………………………………. 7


iv

In re Fontaine, 402 F.Supp. 1219 (E.D.N.Y.1975)……………………………………………………… 14

In re Grand Jury,

619 F.2d 1022 (3d Cir. 1980)…………………………………………………………….11 In re Kaiser Grp. Int’l, Inc.,

730 F. Supp. 2d 247 (D.D.C. 2010)……………………………………………………... 11 In re Micron Tech., Inc. Sec. Litig.,

264 F.R.D. 7 (D.D.C. 2010)…………………………………………………………….. 10 In re Sealed Case (Admin. Subpoena),

42 F.3d 1412 (D.C. Cir. 1994)………………………………………………………...… 14 In re Shubov,

253 B.R. 540 (B.A.P. 9th Cir. 2000)……………………………………………………..19 In re Subpoena to Goldberg,

693 F. Supp. 2d 81 (D.D.C. 2010)………………………………………………………. 11 Joiner v. Choicepoint Services, Inc.,

2006 WL 2669370 (W.D.N.C. Sept. 15, 2006)…………………………………………. 12 Kaiser Grp. Int’l, Inc. v. World Bank,

420 F. App’x 2 (D.C. Cir. 2011)………………………………………………………… 10 Khouj v. Darui,

248 F.R.D. 729 (D.D.C. 2008)…………………………………………………………… 6 Linder v. Calero-Portocarrero,

180 F.R.D. 168 (D.D.C. 1998)………………………………………………………….. 13 Linder v. Dep’t of Def.,

133 F.3d 17 (D.C. Cir. 1998)……………………………………………………………... 9 Minibooster Hydraulics A/S v. Scanwill Fluid Power Aps,

2007 WL 1526421 (W.D.N.Y. May 23, 2007)………………………………………….. 11 Melder v. State Farm Mut. Auto. Ins. Co.,

2008 WL 1899569 (N.D. Ga. Apr. 25, 2008)…………………………………………….. 8 N. Carolina Right to Life, Inc. v. Leake,

231 F.R.D. 49 (D.D.C. 2005)……………………………………………………………. 10 Novak v. Capital Mgmt. & Dev. Corp.,


v

241 F.R.D. 389 (D.D.C. 2007)……………………………………………………………. 6 Richards v. Convergys Corp.,

2007 WL 474012 (D. Utah Feb. 7, 2007)……………………………………………….. 13 Shepherd v. Am. Broad. Companies, Inc.,

62 F.3d 1469 (D.C. Cir. 1995)…………………………………………………………... 19 U.S. Commodity Futures Trading Comm’n v. Whitney,

441 F. Supp. 2d 61 (D.D.C. 2006)………………………………………………………. 13 United States Steel, LLC v. Tieco, Inc.

261 F.3d 1275 (11th Cir. 2001)…………………………………………………………. 12 United States v. Inst. for Coll. Access & Success,

13-MC-81 ABJ-AK, 2013 WL 3853239 (D.D.C. July 26, 2013)………………………. 14 United States v. Int'l Bus. Machines Corp.,

83 F.R.D. 97 (S.D.N.Y. 1979)…………………………………………………………... 13 W. Bay One, Inc. v. Does 1-1,653,

270 F.R.D. 13 (D.D.C. 2010)………………………………………………………… 9, 13 W. Res., Inc. v. Union Pac. R.R. Co.,

2002 WL 1822432 (D. Kan. July 23, 2002)…………………………………………….. 13 Washington v. Thurgood Marshall Acad.,

230 F.R.D. 18 (D.D.C. 2005)…………………………………………………………. 5, 14 on reconsideration, 232 F.R.D. 6 (D.D.C. 2005)………………………………………… 5

Webber v. Mark One Elec. Co.,

No. 09-0607-CV-W-FJG, 2010 WL 2134323 (W.D. Mo. May 26, 2010)………….. 14, 15 United States v. Inst. for Coll. Access & Success,

13-MC-81 ABJ-AK, 2013 WL 3853239 (D.D.C. July 26, 2013)………………………..14 Wyoming v. U.S. Dep’t of Agric.,

208 F.R.D. 449 (D.D.C. 2002)………………………………………………………….. 10

RULES Fed. R. Civ. P. 26……………………………………………………………………….. 4, 5, 9, 11 Fed. R. Civ. P. 45(c)…………………………………………………………………….. 4, 6, 9, 18


vi

OTHER AUTHORITIES 8A Wright, Miller & Marcus,

Federal Practice and Procedure § 2204 (1994)………………………………………….. 10


Defendants Terrence P. Collingsworth and Conrad & Scherer, LLP (“Defendants”),

pursuant to Federal Rules of Civil Procedures 26 and 45(c)(3), move for a protective order, or

alternatively, to quash subpoenas directed to International Rights Advocates (“IRAdvocates”)

and the International Labor Rights Forum (ILRF) by Plaintiff Drummond Co., Inc.

(“Drummond”). The subpoenas at issue seek documents that are privileged and attorney work

product, duplicative of discovery already sought from Defendants, and overly broad, among

other infirmities addressed herein. The parties held a meet and confer on August 1, 2013 as

required by Local Rule 7(m), but could not resolve their differences.

I. Procedural and Factual History

Drummond filed a defamation action against Defendant Terrence Collingsworth and his

law firm, Defendant Conrad & Scherer, LLP, which is pending in the Northern District of

Alabama, Southern Division. See Drummond Company, Inc. v. Collingsworth, et al., Case No.

2:11-cv-3695-RDP (N.D. Ala.) (“Collingsworth”). Drummond alleges the defamation action

stems from letters written in 2011 by Mr. Collingsworth to Dutch officials and a Japanese CEO

related to Drummond’s human rights violations in Colombia. The letters are based upon facts

gathered by Collingsworth and co-counsel in ancillary cases brought under the Alien Tort Claim

Statute (ATS) and the Torture Victim Protection Act (TVPA) against Drummond Company, Inc.,

Drummond Ltd., and individual officers for human rights violations in Colombia.

A. Defendant Collingsworth Is the Executive Director of Third-Party IRAdvocates and Previously Was General Counsel of the ILRF.

The parties have been engaged in litigation over the Colombian human rights cases since

2002. Drummond filed the current defamation action in order to have a second chance at

discovery in the human rights cases and to unduly burden and harass Mr. Collingsworth, who is

lead counsel in the related human rights litigation, Balcero, et al. v. Drummond Company, Inc.,


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et al., No. 2:09-CV-1041-RDP (N.D. Ala.) (“Balcero”) and is currently the Executive Director of

IRAdvocates, the subject of one of the third-party subpoenas. IRAdvocates is a non-profit

organization that “promotes human rights and corporate accountability through legal advocacy

and capacity building.” See International Rights Advocates’ Home Page,

http://www.iradvocates.org (last visited Aug. 15, 2013). In 2007, Mr. Collingsworth founded

IRAdvocates, and prior to that time, he was the General Counsel of the ILRF, the other non-

profit organization on which Drummond has served a subpoena duces tecum. Declaration of

Terrence P. Collingsworth (“Collingsworth Decl.”), filed concurrently herewith, ¶¶ 2-3.

Since before 2003, which is the temporal scope identified in the subpoenas at issue, Mr.

Collingsworth has represented clients bringing claims under the ATS and TVPA against

multinational corporations alleged to have committed serious human rights abuses while

operating abroad. In fact, Mr. Collingsworth first filed a case against Drummond Company, Inc.,

the Plaintiff in the underlying defamation action, in 2002 while in his capacity as General

Counsel of ILRF. See Romero, et al. v. Drummond Company, Inc., et al., Case No. CV-03-BE-

0575-W (N.D. Ala.) (hereinafter “Drummond I”); see also Collingsworth Decl. ¶ 3. In 2007, the

litigation department of the ILRF separately incorporated and formed IRAdvocates.

Collingsworth Decl. ¶ 3. When IRAdvocates formed, Mr. Collingsworth transferred all the

litigation files, including those of Drummond I, to the new organization. Id. The ILRF has no

documents at all relating to any of the Drummond litigation. Id.

In February 2008, although remaining as Executive Director of IRAdvocates, Mr.

Collingsworth and all IRAdvocates staff and agents became affiliated with the law firm of

Conrad & Scherer, LLP and Mr. Collingsworth continues to represent clients as a partner at

Conrad & Scherer, LLP. Id. ¶ 2. Thus, although Drummond has served subpoenas on


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IRAdvocates and ILRF as third-parties, Mr. Collingsworth and IRAdvocates’ staff and agents are

the same individuals who represented clients in the related Balcero v. Drummond litigation. Mr.

Collingsworth, as lead counsel in the Balcero litigation, has never taken the position that Conrad

& Scherer, LLP does not control IRAdvocates or its files for the purpose of searching for and

producing responsive documents during discovery. Additionally, as discussed above, when Mr.

Collingsworth left ILRF and its litigation department was separately incorporated into

IRAdvocates, all litigation files, including the Drummond litigation files, were transferred to

IRAdvocates. Id. ¶ 3.

Moreover, as a result of Mr. Collingsworth’s position as a partner with Conrad &

Scherer, LLP and lead counsel in Balcero, he has already responded to Drummond’s document

requests, which are virtually identical to those in the subpoenas to IRAdvocates and the ILRF.

Then, as a defendant in the libel case brought by Drummond, Mr. Collingsworth was served with

and responded for the second time to Drummond’s document requests, which are virtually

identical to the subpoenas. Now, in serving subpoenas on IRAdvocates and ILRF, Drummond

seeks for the third time the same documents from the same people.

As a result of the current overlap in identity between the staff of IRAdvocates and

Conrad & Scherer, LLP, Drummond’s service of the third-party subpoena on IRAdvocates was

the functional equivalent of serving Mr. Collingsworth with triplicate discovery requests. Given

that Drummond knows IRAdvocates, the Balcero counsel at Conrad & Scherer, LLP and

Defendants in the defamation suit are comprised of the same individuals, the intent of this serial

discovery is clearly to harass Mr. Collingsworth and his staff. Drummond’s intent to burden and

harass Mr. Collingsworth and his staff is further evidenced by the fact that Drummond has also

issued subpoenas for Mr. Collingsworth’s current and former staff at Conrad & Scherer, LLP,


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former co-counsel in Drummond I and Balcero, and Mr. Collingsworth’s local counsel in

Colombia. Collingsworth Decl. ¶¶ 4-12.

B. The Subpoenas Seek Information Already Requested of Defendants or Already Resolved in Discovery Disputes in the Related Human Rights Litigation.

The IRAdvocates and ILRF subpoenas are almost identical,1 and virtually all the

documents requested in the IRAdvocates and IRLF subpoenas have been requested by

Drummond in the defamation action, or they were previously requested and produced in the

related human rights litigation, Balcero. In the underlying defamation lawsuit, Defendants Mr.

Collingsworth and Conrad & Scherer objected to the requests and Drummond filed a Motion to

Compel that is currently pending before Judge Proctor in the Northern District of Alabama. See

Collingsworth Doc. 43.2 As for documents previously requested in the Balcero case, the parties

met and conferred regarding the discovery requests, both parties presented unresolved issues to

the court for resolution, the court ruled, and discovery has closed. See Balcero Doc. 332. Thus,

the discovery now sought from third-parties IRAdvocates and IRLF is redundant and seeks to

circumvent discovery limits in related litigation.

II. Legal Argument

A. Protective Order Should Be Issued, or in the Alternative, the Subpoena Should Be Quashed Because It Seeks Privileged Material.

Defendants move for a protective order under Federal Rule of Civil Procedure 26, or to

quash pursuant to Rule 45, to protect their privileged attorney-client and work-product material,

1 The only exception is that Request No. 6 in the ILRF subpoena includes documents from the ILRF predecessor organization, the International Labor Rights Fund. See Ex. 3, attached to the Collingsworth Declaration. As a result of the near identical nature of the subpoenas, Defendants refer to them collectively throughout this motion. 2 All case docket entries are referenced by the abbreviated case name and “Doc. __.”


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and prevent Drummond from seeking discovery from IRAdvocates or ILRF,3 which it can and

has obtained directly from Defendants. A party has standing to seek to quash a subpoena issued

to a non-party for claims of “privilege, proprietary interest, or personal interest in the subpoenaed

matter.” Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 21, on reconsideration, 232

F.R.D. 6 (D.D.C. 2005). “The Court need not address the standing issue, however,” when

considering a motion for a protective order. Id. at 22. Rather, the Court need only evaluate

Defendants’ motion “according to the standard enunciated in Rule 26, including whether the

information sought is relevant to any claims or defenses raised in this case.” Id.; see also id. at

21-22 (where defendant moved to quash non-party subpoenas “based on concerns regarding

relevance and possible infringement of privacy rights of third-parties not involved in this

litigation,” but “assert[ed] no privilege, proprietary interest, or personal right to the information,”

the court determined defendant “should have moved for a Rule 26(c) protective order” and

evaluated defendant’s motion under that standard).

Under Rule 26(c), “[u]pon motion by a party or the person from whom discovery is

sought . . . and for good cause shown, the court . . . may make any order which justice requires to

protect a party or person from annoyance, embarrassment, oppression, or undue burden or

expense.” Fed. R. Civ. P. 26(c); see also Thurgood Marshall Acad., 230 F.R.D. at 22 (holding

that for subpoenas issued to non-parties “discovery will be limited to records that pertain, relate

to, or discuss [defendant]'s possible violations”); Alexander v. F.B.I., 186 F.R.D. 71, 75 (D.D.C.

1998) (“good cause exists under Rule 26(c) [to quash a non-party subpoena upon a party’s

3 Although to Defendants’ knowledge ILRF does not possess any documents related to any litigation against Drummond, Defendants nonetheless preserve their arguments concerning privilege and work product.


6

request] when justice requires the protection of a party or a person from any annoyance,

embarrassment, oppression, or undue burden or expense”).

Rule 45 also provides redress to Defendants and states that a subpoena must be modified

or quashed if, among other things, it “requires disclosure of privileged or other protected matter.”

Fed. R. Civ. P. 45(c)(3)(A). “[A] party to the underlying action may move to quash the

subpoena where the subpoena directly implicates the party’s privilege or rights.” Albany

Molecular Research, Inc. v. Schloemer, 274 F.R.D. 22, 25 (D.D.C. 2011) (finding defendant has

standing to quash non-party subpoena to FDA). Because Drummond’s subpoenas to

IRAdvocates and ILRF seek information protected by attorney-client privilege and/or work-

product, Defendants have standing to quash this subpoena. See, e.g., Amobi v. Dist. of Columbia

Dep’t of Corr., 257 F.R.D. 8, 10 (D.D.C. 2009) (“a party may have standing to move to quash a

subpoena directed to a third-party where that subpoena infringes on the moving party’s rights”);

Khouj v. Darui, 248 F.R.D. 729, 732 n.6 (D.D.C. 2008) (parties have standing to move to quash

subpoenas seeking their financial records from third-parties); Novak v. Capital Mgmt. & Dev.

Corp., 241 F.R.D. 389, 394 (D.D.C. 2007) (“Defendants could challenge enforcement of the

subpoena if they showed it threatened the disclosure of information that was protected by the

attorney-client or work product privileges.”). Here, where Mr. Collingsworth serves as

Executive Director of non-party IRAdvocates, is lead counsel in the Balcero human rights

litigation, and is a defendant in the defamation suit, his interest in protecting any privileged

information held by IRAdvocates or ILRF is self-evident.

Additionally, in this instance, Drummond’s requests in the subpoenas are so broad that

they seek “all documents referring to” a given subject, which necessarily includes attorney notes


7

and internal communications regarding case strategy. See Exhibits 1 & 34 (Drummond

Subpoenas to IRAdvocates and IRLF). Other subpoena requests blatantly seek attorney work

product. For example, Requests 9 and 10 seek “any and all documents” relating to the testimony

and anticipated testimony of “individuals incarcerated in Colombia.” These requests directly

seek documents that are protected by the attorney-client privilege and attorney work-product

doctrine, as any responsive documents Mr. Collingsworth has were developed while he was

General Counsel of the ILRF, the Executive Director of IRAdvocates and lead counsel in the

Balcero litigation.

Additionally, both Requests 9 and 10, which seek all documents related to testimony and

“anticipated testimony,” impermissibly track IRAdvocates’ and Mr. Collingsworth’s

investigations, including attorney notes, research, and internal communications, which are not

discoverable. See Hickman v. Taylor, 329 U.S. 495, 512 (1947) (“oral statements made by

witnesses to [attorney], whether presently in the form of his mental impressions or memoranda”

constitute work product); Equal Rights Ctr. v. Post Properties, Inc., 246 F.R.D. 29, 36 (D.D.C.

2007) (interrogatory requesting that party “identify each person that it intends to call as a witness

at trial and summarize their anticipated testimony” impermissibly sought work product); Castle

v. Sangamo Weston, Inc., 744 F.2d 1464, 1466 (11th Cir. 1984) (“there is no question that these

materials . . . consist[ing] of witness statements and notes of interviews with witnesses”

constitute work product).

Indeed, Judge Proctor in the Northern District of Alabama denied portions of a similar

motion to compel in Balcero. See Balcero Doc. No. 332, at 2-4, attached as Exhibit 5.

Drummond’s request for such documents is an attempt to circumvent another Court’s resolution

4 All numbered exhibits are attached to the Collingsworth Declaration and the letter exhibit is attached to the Smith Declaration.


8

of discovery disputes. Cf. Melder v. State Farm Mut. Auto. Ins. Co., 2008 WL 1899569 (N.D.

Ga. Apr. 25, 2008) (Defendant had “standing to challenge the [non-party] subpoenas because

among other reasons, Plaintiffs have sought the same information directly from [Defendant] in

the forum court where a contested discovery dispute over disclosure of the documents sought in

the subpoenas has been going on for some time”). Thus, “permitting the production of the

documents from third-parties without allowing Defendants the opportunity to bring a motion to

quash would effectively moot the discovery dispute between the parties in the forum court.” Id.

Furthermore, Request 30 asks for “any and all documents related or referring to Llanos

Oil or any of its principals, representatives, agents or employees.” Defendant Collingsworth

represents Llanos Oil’s officers and agents, Albert van Bilderbeek and Hendrik van Bildrebeek,

respectively CEO and President of Llanos Oil, concerning claims against Drummond.

Collingsworth Decl. ¶ 13. As a result, Defendants have an interest in preventing the disclosure

of documents protected by the attorney-client privilege and work product doctrine that are being

sought related to Llanos Oil.

For all these reasons, Defendants have standing to move for a protective order or,

alternatively, to quash the subpoenas directed at IRAdvocates and ILRF. Defendants

additionally have standing to bring this motion because Mr. Collingworth and his staff are the

same individuals comprising IRAdvocates and thus are the actual individuals who must comply,

absent this Court’s intervention, with the IRAdvocates subpoena.

B. The Subpoenas Should Be Quashed Because They Seek the Same Documents as Those Requested from the Defendants and the Information Drummond Seeks Must Be Requested from a Party.

In order to “protect a party or person from annoyance, embarrassment, oppression, or

undue burden or expense,” courts may “forbid[] the disclosure or discovery,” or “prescrib[e] a


9

discovery method other than the one selected by the party seeking discovery.” Fed. R. Civ. P.

26(c). The Federal Rules of Civil Procedure also stipulate that a subpoena must be quashed or

modified if it “subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A)(iv); see also

Linder v. Dep’t of Def., 133 F.3d 17, 24 (D.C. Cir. 1998) (“If a subpoena for relevant

information imposes an ‘undue burden,’ the court may modify the subpoena or quash it

altogether.”). Additionally, in evaluating “whether the burden of subpoena compliance is

‘undue,’ the court balances the burden on the recipient of the subpoena, the relevance of the

information sought to the claims or defenses at issue in the lawsuit, the scope or breadth of the

discovery request, and the party’s need for the information.” Call of the Wild Movie, LLC v.

Does 1-1,062, 770 F. Supp. 2d 332, 354 (D.D.C. 2011); see also W. Bay One, Inc. v. Does 1-

1,653, 270 F.R.D. 13, 14 (D.D.C. 2010) (the “court examines ‘relevance, the need of the party

for the documents, the breadth of the document request, the time period covered by it, the

particularity with which the documents are described and the burden imposed.’”) (quoting

Flatow v. Islamic Republic of Iran, 196 F.R.D. 203, 206 (D.D.C.2000)).

The documents sought from IRAdvocates and ILRF are almost identical to those sought

by Drummond in the defamation action and were also sought by Drummond in Balcero, the

related human rights litigation. See Exhibit 6 (Defendants’ Amended Response to Plaintiff’s

First Request for Production); Exhibit 7 (Defendants’ Fifth Request for Production in Balcero v.

Drummond). Regarding the requests made in the underlying defamation action, Defendants

objected to them and Drummond filed a Motion to Compel, which is currently pending before

Judge Proctor in the Northern District of Alabama, Southern Division. Similarly, in the Balcero

action, discovery disputes were resolved during the meet and confer process or Drummond


10

moved to compel responses and Judge Proctor issued rulings. See, e.g., Balcero Doc. 332

(Exhibit 5).

It is clear that much of the information Drummond seeks concerning payments and

communications with witnesses should have been directed, if ever, at the Defendants and not at

third-parties. See, e.g., AF Holdings LLC v. Does 1-1,058, 286 F.R.D. 39, 46 (D.D.C. 2012)

(“The ‘undue burden’ test also requires the court to be ‘generally sensitive to the costs imposed

on third-parties.’”) (quoting In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C. 2010));

N. Carolina Right to Life, Inc. v. Leake, 231 F.R.D. 49, 51 (D.D.C. 2005) (“non-party status is

also relevant in considering the burden.”) (citing Wyoming v. U.S. Dep’t of Agric., 208 F.R.D.

449, 452 (D.D.C. 2002)); Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996) (“‘[i]f

documents are available from a party, it has been thought preferable to have them obtained

pursuant to Rule 34 rather than subpoenaing them from a non-party witness [pursuant to Rule

45].’”) (quoting 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2204 (1994))

(alterations in original).

Drummond sought many of the same documents from Defendants already and requests

directed at third-parties IRAdvocates and ILRF for the same documents and information are

duplicative and unduly burdensome. First, this subpoena is particularly redundant here where

Mr. Collingsworth is Executive Director of IRAdvocates, and IRAdvocates’ staff and agents are

the same individuals who represented clients in the related Balcero litigation and responded to

similar discovery requests in that case. See, e.g., Ex. 7. The only explanation for the subpoenas

issued to IRAdvocates and IRLF is that Drummond is harassing and attempting to burden Mr.

Collingsworth and his staff. In re Kaiser Grp. Int’l, Inc., 730 F. Supp. 2d 247, 250 (D.D.C.

2010) aff’d sub nom. Kaiser Grp. Int’l, Inc. v. World Bank, 420 F. App’x 2 (D.C. Cir. 2011)


11

(quashing third-party subpoena where “the Executive Directors on these Boards [of party and

non-party who was issued subpoena] are generally the same people.”); In re Grand Jury, 619

F.2d 1022, 1027 (3d Cir. 1980) (employer had standing to move to quash subpoenas issued to

employees where employer argued the grand jury was attempting to harass it and “that it is being

deprived of the time and effort of its employees.”); Minibooster Hydraulics A/S v. Scanwill Fluid

Power Aps, 2007 WL 1526421, at *3 (W.D.N.Y. May 23, 2007) (quashing subpoena “as overly

broad and unduly burdensome” where plaintiff’s counsel was representing the non-party’s

interests and non-party’s “documents [we]re in plaintiffs’ control,” because “[i]f defendants seek

specific [non-party] documents not covered by their previous discovery requests, such additional

requests should be directed to plaintiff pursuant to Fed. R. Civ. P. 34.”).

Second, the information not only could be obtained by another source previously during

discovery, all responsive, non-privileged requested documents already have been produced to

Drummond by Defendants in this defamation suit and in the Balcero litigation. See In re

Subpoena to Goldberg, 693 F. Supp. 2d 81, 87 (D.D.C. 2010) (quashing non-party subpoena

seeking “recollections of other similar conversations” because it would “only produce evidence

that is ‘unreasonably cumulative or duplicative.’”) (quoting Fed. R. Civ. P. 26(b)(2)(C)(i)). The

information requested is duplicative and is being sought from the organization directed by

Defendant Collingsworth; it is not merely “similar” to what has already been produced, which

alone was enough to quash the subpoena in Goldberg. Id. at 87. The burden of production

obviously outweighs the benefit of re-producing, from the same source, documents that have

already been produced.

Third, even if some documents were previously sought from Defendants and they refused

to produce them, subpoenaing a third-party to obtain the documents is not permissible. See


12

Joiner v. Choicepoint Services, Inc., 2006 WL 2669370, at *5 (W.D.N.C. Sept. 15, 2006) (where

“[a] number of the documents requested in Plaintiff’s subpoenas duces tecum at issue encompass

documents Plaintiffs originally asked for in its document production request of Defendant

pursuant to Rule 34 . . . the proper method for plaintiff to obtain these documents would be a

motion to compel.”).

C. The Subpoenas Should Be Quashed Because the Requests are Overly Broad and Drummond is on a Fishing Expedition for Information that Is Not Relevant or Likely to Lead to the Discovery of Admissible Evidence.

The information Drummond seeks is clearly not relevant to any claim or defense in the

present defamation action. The elements of libel are: (1) a publication which requires a

communication with someone other than the plaintiff; (2) the publication must be defamatory,

which means a false statement understood by some third-party is natural and probably injurious

to the plaintiff’s reputation; (3) the statement must have sufficient specificity for the person to

whom publication is made to know it relates to the plaintiff; and (4) it must have been intentional

or have occurred in such circumstances that the defendant would have anticipated its occurrence.

United States Steel, LLC v. Tieco, Inc. 261 F.3d 1275, 1293 n.22 (11th Cir. 2001).

The allegedly defamatory publications at issue in this case are three letters sent by

Defendant Collingsworth between January and September of 2011. See Exhibit 8 (Complaint ¶

22). In addition to being duplicative of requests for documents served on Defendants, which

includes IRAdvocates’ Executive Director, Defendant Collingsworth, none of the documents

requested of IRAdvocates and ILRF have any bearing on the elements of Drummond’s libel case

and exceed any reasonable temporal scope for discovery. Id.

The Requests at issue, specifically identified below, are overly broad and do not directly

relate to any claim or defense raised in this defamation action. First, Drummond’s request to


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produce all documents showing payments, among other requests, is overly broad and more

appropriately directed at the Defendants. See supra Section II.B.

Second, whether a subpoena imposes an undue burden is determined, in part, by “the

time period covered by it.” W. Bay One, 270 F.R.D. at 14. “‘A demand for documents should

cover a reasonable time period to insure that the materials desired are sufficiently identified and

to confine the search to relevant documents.’” Linder v. Calero-Portocarrero, 180 F.R.D. 168,

176 (D.D.C. 1998) (quoting United States v. Int'l Bus. Machines Corp., 83 F.R.D. 97, 107

(S.D.N.Y. 1979)). In this case, the letters that are the subject of the libel suit were written in

2011. Drummond’s requests going back to 2003 – long before the letters were written – are

unreasonable and designed to harass. Cf. U.S. Commodity Futures Trading Comm’n v. Whitney,

441 F. Supp. 2d 61, 69 (D.D.C. 2006) (finding subpoenas were “not unduly burdensome”

because they “request[ed] a number of specific documents for a narrow time period (between six

months to two years, depending on the subpoena)” and were “limited to the documents needed to

prove the required elements of the” underlying claim) (parentheses in original); Linder, 180

F.R.D. at 174 (finding subpoena time period “covering approximately a year before to a year

after” the subject of the litigation to be reasonable).

Third, Drummond’s requests use all-encompassing phrases that are overly broad and

should be quashed. See, e.g., Richards v. Convergys Corp., 2007 WL 474012, at *4 (D. Utah

Feb. 7, 2007) (granting plaintiff’s motion to quash “a blanket request for all documents regarding

[plaintiff’s] employment” because it was “overly broad.”); W. Res., Inc. v. Union Pac. R.R. Co.,

2002 WL 1822432, at *3 (D. Kan. July 23, 2002) (“requests are overly broad on their face to the

extent they utilize all-encompassing phrases such as ‘relate to’ or ‘relating to.’”).


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Fourth, Drummond’s requests are facially overbroad, seek irrelevant information, and

should also be quashed or, alternatively, modified. See, e.g., Food Lion, Inc. v. United Food &

Commercial Workers Int’l Union, 103 F.3d 1007, 1012-13 (D.C. Cir. 1997) (finding that

documents sought in non-party subpoena were undiscoverable because “[w]hile the standard of

relevancy [in discovery] is a liberal one, it is not so liberal as to allow a party ‘to roam in shadow

zones of relevancy and to explore matter which does not presently appear germane on the theory

that it might conceivably become so.’”) (quoting In re Fontaine, 402 F.Supp. 1219, 1221

(E.D.N.Y.1975) (alteration in original)); Thurgood Marshall Acad., 230 F.R.D. at 23 (limiting

the scope of non-party subpoenas to documents that “pertain, relate to, or discuss” the subject

matter of the underlying litigation).

Indeed, subpoenas that seek broad, likely irrelevant information from third-parties must

be quashed as abusive fishing expeditions. See, e.g., United States v. Inst. for Coll. Access &

Success, 13-MC-81 ABJ-AK, 2013 WL 3853239, at *4 (D.D.C. July 26, 2013) (finding “the

period covered by the subpoena” and the “broad search terms” were “so sweeping . . . they

[could] only by categorized as a fishing expedition unlikely to yield relevant information”);

Webber v. Mark One Elec. Co., No. 09-0607-CV-W-FJG, 2010 WL 2134323, at *1 (W.D. Mo.

May 26, 2010) (sustaining plaintiff’s objection to subpoenas issued to several related

organizations that “appear[ed] to be a fishing expedition into plaintiff's work and personal

history”). In particular, use of the subpoena power in an attempt to uncover possible wrongful

conduct is prohibited. See In re Sealed Case (Admin. Subpoena), 42 F.3d 1412, 1418 (D.C. Cir.

1994) (“‘Anyone who respects the spirit as well as the letter of the Fourth Amendment would be

loath to believe that Congress intended to authorize one of its subordinate agencies to . . . direct

fishing expeditions into private papers on the possibility that they may disclose evidence of a


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crime.’”) (quoting American Tobacco Co., 264 U.S. at 305-06). For all these reasons, the

following Requests should be quashed.

1. Documents Relating to Payments and Contacts in Colombia

Requests 1-8 seek information about “any assistance,” including “any payments” to “any

individual incarcerated in Colombia” and “any family members of an individual incarcerated in

Colombia.” See Ex. 1. Although irrelevant to Drummond’s libel claims, Defendants have

already produced all responsive, non-privileged documents regarding security provided to

Drummond witnesses in the Balcero litigation. These documents were produced through June

2012, nearly a year after the letters at issue were sent. See Ex. 7, Request Nos. 12, 16, 17. There

is no temporal limitation to these requests to IRAdvocates and ILRF, nor are the requests limited

to witnesses or potential witnesses in Defendants’ litigation against Drummond. But, even if

such limitations were imposed, the requests remain irrelevant to the defamation action.

Likewise, Requests 9 and 10 seek “any and all documents” relating to the testimony and

anticipated testimony of “individuals incarcerated in Colombia.” In addition to blatantly seeking

privileged information, as discussed above, this request is absurdly broad and burdensome given

IRAdvocates’ (and, previously, ILRF’s) extensive legal work in Colombia. As Drummond is

well aware, IRAdvocates, and ILRF before it, have been involved in human rights litigation

against several corporations operating in Colombia, including Coca-Cola, Chiquita Brands

International, Dole Food Company, Occidental Petroleum and British Petroleum, PLC.

Collingsworth Decl. ¶ 22. Information regarding incarcerated witnesses in those cases is clearly

irrelevant and a blatant “fishing expedition into [Defendant Collingsworth and IRAdvocates]’s

work and personal history.” Webber, 2010 WL 2134323, at *1.


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Requests 11-19 seek “[a]ny and all communications with, or documents related or

referring to” several individuals. While being so broad as to necessarily include privileged

material, documents regarding these individuals are also irrelevant to this litigation and

production of these documents would be unduly burdensome. Drummond has made no

allegation that any of the listed individuals participated in the drafting or distribution of the

letters at issue. Defendant Collingsworth has never corresponded directly with any of these

individuals, and has never even met many of them. Several of the individuals listed here are

witnesses or the family members of witnesses in the Balcero litigation. These are individuals

who were threatened for providing testimony against Drummond and received protection from

Defendants. Defendants have already produced all the responsive, non-privileged documents

regarding these individuals in the Balcero case, see, e.g., Ex. 7, Request Nos. 12, 16, and 17, and

produced all responsive, non-privileged documents in IRAdvocates’ possession or control,5 see

Collingsworth Decl. ¶ 23. ILRF has no responsive documents. See id. ¶ 3. Again, all

responsive documents through June 2012 were produced in the Balcero litigation, which

includes documents from nearly one year after the letters at issue were sent.

Furthermore, even if protecting threatened families of witnesses is somehow relevant to

Drummond’s defamation claims, which Defendants contest, Drummond has made no allegation

that the Colombian attorney Carlos Toro or the journalist, Gonzalo Guillen, who are referenced

in several of these requests, were involved in or have knowledge of these security payments.

Nor has Drummond made any allegation that either is involved in any tortious or unethical

conduct. Seeking information regarding these individuals is clearly prohibited and intended to

harass IRAdvocates’ and Defendants’ staff.

5 Defendants have never taken the position in the course of litigating the Balcero case that IRAdvocates’ documents were not within their possession, custody or control for the purpose of discovery.


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2. Documents relating to IRAdvocates’ internal records

Requests 20-29 seeking documents relating to IRAdvocates’ structure, staffing, and

financing are overly broad, unduly burdensome, and irrelevant to the claims or defenses in this

defamation lawsuit, in addition to calling for privileged agreements. Drummond requests “any

and all” documents showing agreements and payments between Defendants and IRAdvocates

and “any and all documents” related to the financing of litigation against Drummond. In

addition to being duplicative of requests to Defendants, including Collingsworth, who is

IRAdvocates’ Executive Director, they are the subject of an unresolved discovery dispute in the

above-captioned libel case, which is pending in the Northern District of Alabama. Moreover,

there is no allegation that IRAdvocates’ financial status has any bearing on any claim or defense

in this case.

Additionally, Drummond’s request for “any and all documents” showing the names of

every person who is investigating claims against Drummond is a clear attempt to obtain attorney

notes, research, and internal communications that are not discoverable because they constitute

attorney work product or are protected by attorney-client privilege. Similarly, the requests for

“any and all documents” showing the addresses of IRAdvocates staff and former staff is overly

broad, irrelevant, and necessarily would divulge personal, private or confidential information that

could not possibly have any bearing on the libel issues Drummond claims to be pursuing through

the subpoenas.

3. Documents Relating to Llanos Oil

Finally, Request 30, which requests “any and all” documents relating or referring to

Llanos Oil, is also overly broad, and as discussed above, seeks irrelevant privileged information.


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Furthermore, this Request is duplicative of information already sought from Defendants and is

unduly burdensome. See, e.g., Ex. 6, Request Nos. 41, 43, 44, 45, 47, 54, 55, 56, 62, 63.

All responsive, non-privileged, non-work product documents sought by this request to

IRAdvocates and ILRF have already been produced by Defendant Collingsworth (IRAdvocates’

Executive Director) in either the Balcero litigation or in the above-captioned libel case.

D. Defendants Seek Sanctions Against Drummond for Misuse of Its Subpoena Power.

On July 17, 2013 and July 19, 2013, Drummond noticed Defendants that they intended to

serve a number of subpoenas seeking identical information from IRAdvocates and ILRF, and six

individuals who have worked with Defendants in ongoing litigation against Drummond for

human rights violations. Three of these individuals are currently employed by Defendants:

Susana Martinez Tellez is a paralegal with Conrad & Scherer; Charity Ryerson is a law clerk

with Conrad & Scherer, and previously was employed by IRAdvocates; and Lorraine Leete is a

contract attorney for IRAdvocates. Collingsworth Decl. ¶¶ 9-11. As Executive Director of

IRAdvocates, Defendant Collingsworth and his staff have already searched for and produced all

responsive non-privileged documents in both this litigation and in the Balcero case. Requesting

this same information a second, third, or fourth time from essentially the same source is an abuse

of the subpoena power and sanctions are warranted for this blatant attempt to harass Defendants

and their employees and divert their time and effort from the human rights litigation against

Drummond.

Rule 45(c)(1) provides for sanctions when a party has failed to “take reasonable steps to

avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P.

45(c)(1). “The issuing court must enforce this duty and impose an appropriate sanction—which

may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to


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comply.” Id. See also, e.g., Alberts v. HCA Inc., 405 B.R. 498, 502-03 (D.D.C. 2009) (citing

with approval, but distinguishing, a case which awarded sanctions for “undue burden” because

“a party’s refusal to withdraw a subpoena compel[led] the filing of a motion to quash”);

Shepherd v. Am. Broad. Companies, Inc., 62 F.3d 1469, 1475-76 (D.C. Cir. 1995) (court has

inherent power to issue “fines, awards of attorneys’ fees and expenses, contempt citations,

disqualifications or suspensions of counsel, and drawing adverse evidentiary inferences or

precluding the admission of evidence” in order “to protect their integrity and prevent abuses of

the judicial process”).

Defendants’ counsel met and conferred with Drummond and addressed each of the issues

in this motion. See Exhibit A attached to the declaration of Bradley J. Smith. Despite this,

Drummond refused to withdraw the subpoena, which necessitated filing this motion to quash.

As a result, all of Defendants’ counsels’ efforts in responding to these subpoenas constitutes an

undue burden or expense and should be compensated. See Builders Ass’n of Greater Chicago,

96 C 1122, 2002 WL 1008455, at *4 (N.D. Ill. May 13, 2002) (“‘When a subpoena should not

have been issued, literally everything done in response to it constitutes “undue burden or

expense” within the meaning of Civil Rule 45(c)(1).’”) (quoting In re Shubov, 253 B.R. 540, 547

(B.A.P. 9th Cir. 2000)). Mr. Collingsworth and his staff keep accurate time records and could

submit to the Court a precise accounting of time and other expenditures associated with

addressing Drummond’s improper and abusive use of its subpoena power. Collingsworth Decl. ¶

24.

III. Conclusion

For all these reasons, Defendants’ Motion to Quash Subpoenas to International Rights

Advocates and International Rights Forum And/Or Motion For Protective Order should be


granted and the subpoena quashed in its entirety. Sanctions should be awarded based on

Drummond's blatant disregard for its duties and responsibilities concerning its subpoena power.

Dated: August 16, 2013 Respectfully submitted,

Christian Levesque (0 Conrad & Scherer, 1156 15th Street NW, Suite 502 Washington D.C. 20005 P: 202-543-4001 F: 1-866-803-1125 [email protected]

Counsel for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of August, 2013, I caused a copy of the foregoing to

be served electronically and via U.S. First Class mail on the following:

William Anthony Davis, III, Esq. H. Thomas Wells, III, Esq. Benjamin T. Presley STARNES DAVIS FLORIE, LLP P.O. Box 59812 Birmingham, Alabama 35259 [email protected] [email protected] [email protected]

Sara E Kropf LA W OFFICE OF SARA KROPF PLLC 1001 G Street NW, Suite 800 Washington, D.C. 20001 [email protected]

Counsel for Plaintiff

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Brian Campbell Director of Policy and Legal Programs INTERN A TION LABOR RIGHTS FORUM 1634 1St NW #1001 Washington, DC 20006 [email protected]

Counsel for ILRF

Christian Levesque


FOR THE DISTRICT OF COLUMBIA DRUMMOND COMPANY, INC. … · 2:11-cv-3695-RDP (N.D. Ala.)...

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