Scruggs defense team files reply brief in USA v. Scruggs, defends sending of documents to AG Hood as legit cooperation with law enforcement

Dickie Scruggs, charged with criminal contempt of court for allegedly working with Mississippi AG Hood to circumvent a federal judge’s injunction, has filed his reply to a special prosecutors’ brief detailing Scruggs’ supposed legal "sham."

An excerpt from the Scruggs brief:

Aside from being factually wrong, the "sham" theory fails as a matter of law because the Injunction’s law-enforcement exemption requires nothing more than a request from law-enforcement officials.  It does not require any inquiry into the state of mind of the requesting officials, or any inquiry into the process by which those officials decided to request the documents.  Due process forbids reading additional restrictions and qualifications into the Injunction’s law-enforcement exemption — yet the "sham" theory turns on doing just that.

I think this is a clever argument.  It takes the terms of an injunction in a civil case and seeks to apply to it the standard for construction of a criminal statute — that the words of the statute must be strictly construed against the state and in favor of the accused.  I’m not sure I fully buy it, but it’s a good argument.

That first dependent clause in the paragraph excerpted above, however, is somewhat of a non sequitur — "aside from being factually wrong."  That clause refers to the previous sentence, which sums up the sham theory as asserting "that the Mississippi Attorney General didn’t really need the State Farm documents and requested them only ‘to assist the Defendants in their commercial business endeavors, and lawsuits’."  The Defendants are Scruggs and his law firm, and this sentence responds to prosecutors’ accusations that, after Judge William Acker issued an injunction requiring the "whistleblower" Rigsby sisters and their agents to return State Farm claims documents they had taken from their employer, E.A. Renfroe, Scruggs immediately called his close friend AG Jim Hood and arranged for him to request the documents so Scruggs could avoid handing them over to Renfroe’s attorneys.  However, it seems beyond dispute that Hood did not need the documents, as he already had another copy of them.  That doesn’t mean the argument excerpted above is no good, but the point is weakened by a protest against what seems self-evident.  Because Hood had his own copies, he did not "need" the Scruggs copies, so it is difficult to see how that assertion is "factually wrong." 

By way of background, the Rigsby sisters were being sued by Renfroe for taking 5,000 to 15,000  State Farm Katrina claims adjusting documents, allegedly in violation of their confidentiality agreements, and giving them to Scruggs.  If you don’t know the full story and want to know it, go to my blog’s search bar and type "Rigsby." I’ve written posts on this by the cyber-ton.

Scruggs also makes an argument that Judge Acker’s injunction did not encompass him as a nonparty: in other words, that Scruggs can be liable for violating the injunction only if he aided and abetted a party to the lawsuit to violate the injunction.  Without a primary violation by the Rigsby sisters, he says, he cannot have violated it himself.  Prosecutors have said the injunction clearly applied to the sisters and their agents, and that Scruggs and his firm, as their lawyers, were agents even though Scruggs did not represent the sisters in the Renfroe lawsuit, but instead was their counsel regarding the documents and a separate whistleblower lawsuit the sisters brought under the False Claims Act against several insurers and others.

The most extended argument in the brief, however, is an attempt to debunk the sham theory by stating that the injunction on its face contained no exclusion of documents in the law-enforcement section (allowing cooperation with law-enforcement officials in their investigations into insurer claims adjusting practices).  I thought this argument was exceptionally well-written, but it suffers from an internal contradiction: even under a generous interpretation, the law-enforcement exception allows only "disclosure" of documents to law-enforcement.  How can you disclose what someone already knows?  Can you disclose to me that I’m from NoDak?  Since Hood already had the very same documents, how can giving him the copies that were to go to Renfroe’s lawyers constitute a disclosure?       

All in all, though, I think this brief gets an A for clarity of writing and expression and legal argument.  If you would like to judge for yourself, click here to read the Scruggs reply brief.

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