Insurance Law

Trailer Lawyer News, April 23: the 'Snake Farm' edition

By David Rossmiller

You know the old saying -- if you can't stand the heat, stay out of the trailer. This story by Dan Margolies in today's Kansas City Star features angry denunciations by Chip Robertson and Todd Graves, suspected Trailer Lawyers, of State Farm:

“There’s a reason people call them ‘Snake Farm,’ ” Robertson said Monday.

OK, before we proceed, let's say something about this "Snake Farm" line.  As an insult, it's so-so, it's been said before, but I think the intent was for something more, a good satirical catch phrase to coalesce the storyline.  While I can appreciate the effort, this violates the first rule of satire -- it has to be funny. Like "Trailer Lawyers" is funny and catchy, it's fun to say, it's funny to think about a bunch of lawyers crammed into a trailer, probably the first trailer they've ever been in their lives ("try not to touch anything, you might catch something!").  The phrase is more than words, it gives you an image.  But "Snake Farm" is not funny, whether you agree with it or not.  It just sounds kind of unattractively bitter, like Great-Grandpa sittin' around complain' about how the milk wagon don't come no more, and them dang kids next door are so loud I can't watch my programs!!  

Let's take a look at a further excerpt from the story (I've added the words in brackets throughout this post for clarity in light of the Robertson statement): 

Although Graves and Robertson were not part of the Scruggs Katrina Group, State [Snake] Farm wants them off the whistleblower case. The insurer charges they were at meetings during which its computer data were illegally accessed.

That accusation met with angry denunciations this week by Graves and Robertson, who emphatically denied they had any role — as participants or observers — in the matter.

“They’re trying to cast these aspersions on us by saying that on March 11 (2006) we were with these girls in a trailer and got on the State [Snake] Farm Web site and viewed stuff,” Graves said. “The depositions State [Snake] Farm cites don’t say that.”

Graves acknowledged the Rigsbys might have given some of the downloaded information to Tony DeWitt, Robertson’s partner. But that, he said, “was not an ethical violation.”

“You’re not supposed to be able to go in court and just throw things up there,” Graves said. “Maybe in the blog world you can, but that’s not how you’re supposed to plead cases.”

Let's look at the Graves quote in the third paragraph of the excerpt. What do the depositions say?

Well, both Cori and Kerri Rigsby said, in their November 19 and November 20 depositions, that there were two trailer meetings.  Here's a link to a post with all the Rigsby depositions I have so you can do your own detective work, if you care to.

We know that State, sorry, Snake Farm was able, through a simple check of who accessed their server and when, to determine Cori Rigsby accessed the Sta-, Snake Farm claims records in virtually the same order they appeared on a list of Scruggs plaintiffs -- and in the January 2008 deposition she admitted she had such a list, although she said she didn't remember where she got it. This check of computer records has previously been submitted as evidence in the McIntosh case.

We also know that Cori Rigsby, on November 19, testified as follows:

Q. And when did you give Tony DeWitt your laptop? 
A. In April. 
Q. Did you also give him your password? 
A. I don't remember. 
Q. Well, it wouldn't do much good to have the laptop without the password, would it? 
A. Well, I was sitting right next to him. 
Q. All right. Did you boot it up for him? 
A. I don't remember. 
Q. What were you searching for? 
A. I'm not -- I'm not sure of the exact -- that we had a list. There were some documents that we were talking about. We were talking -- I'm not sure which documents he retrieved. I let  him in the computer, and I can't speak after that. 
Q. Where did this take place? 
A. It took place in Pascagoula. 
Q. Did you print documents as a result of that search? 
A. No, sir. 
Q. Did he read documents off your computer? 
A. I'm assuming he did. 
Q. Can you give me the date of this incident? 
A. I believe that this occurred in March. 
Q. March of '06? 
A. Yes, sir. 
Q. Can you be more specific by day? 
A. I can't. 
Q. Would your calendar refresh your  recollection? 
A. If I wrote it on there, it would have. 
Q. Do you know whether you did? 
A. I don't know. 
Q. Didn't you normally write appointments with your lawyers on your calendars? 
A. I normally did. 
Q. Did you -- is that a yes? 
A. Yes. 
Q. Did you go to his office? 
A. No. 
Q. He came to you? 
A. Yes. 
Q. He came to your house? 
A. No. We met in a trailer. 
Q. Pardon me? 
A. We met at a trailer. 
Q. Okay. Who else was there? 
A. Tony DeWitt. There were two meetings in this trailer, and I'm going to get confused as to  who was at which meeting. 
Q. Well, do your best. 
A. Okay. Tony DeWitt, Dick Scruggs, Zach 
Scruggs, Mary Winters, Chip -- 
Q. Chip who? 
A. I don't remember Chip's last name. Kerri, myself and my mother. 

* * * * *

Q. Once you logged in -- I assume you're following your counsel's instruction? 
A. Yes.

OK, this is Cori Rigsby's own testimony.  The date of the testimony, once again, is November 19, 2007. A fair inference from this testimony is that there were two trailer meetings, because that is what she said.  And at least at one of them, "Chip" and Mary Winters were present.  Coincidentally, Chip Robertson and Mary Winters, along with Tony DeWitt, are the names of the lawyers representing the Rigsbys in the False Claims Act "whistleblower" case, and Robertson is also of course the champion of the phrase "Snake Farm." A fair inference is that she gave her laptop to DeWitt in April, possibly at the second of the trailer meetings, perhaps at some other location.  But for sure at some point and at some place in April, she said, she did give the laptop itself to DeWitt.  She also testified that DeWitt was sitting right next to her at some point while she was accessing the computer, and at this meeting he might have viewed documents rather than accessing the computer itself, but it might also be that she "let him in the computer" and then doesn't know what he did.  This is not definitive one way or the other whether the computer was logged in to the server at that time.  It appears she said this occurred in March. 

Here is Kerri's testimony from the next day:

Q. And who did you meet with at the trailer? 
A. We met with several attorneys at that trailer. 
Q. Give me their names, please. 
A. Tony Dewitt, there was an attorney named Mary, Todd, and Chip. 
Q. Mary's last name? 
A. I don't recall her last name. 
Q. Is she an attorney? 
A. She is an attorney. She works with Tony Dewitt. 
Q. Does Tony Dewitt have a law firm name? 
A. It does, but I don't know what the name is. 
Q. How about Todd, is he an attorney? 
A. He's an attorney, but I don't believe he's in the same office. 
Q. Do you know what firm he's with? 
A. I don't. 
Q. And Chip, does he have a last name? 
A. He does, but I don't recall his last name. 
Q. Is he a lawyer? 
A. He's a lawyer. I believe he's the head of that firm that Tony works with.

* * * * *

Q. Well, my question is: Was there a situation that occurred on March 11, 2006, when you and your sister both accessed the McIntosh file through a State [Snake] Farm computer? 
A. It's possible, yes. 
Q. I don't want possibility. Is that likely to have occurred? 
A. Likely, yes.

Now, Kerri's testimony continued that day, November 20, 2007, as follows:

Q. Okay. Thank you. You talked earlier about a meeting that occurred on March 11th, 2006 in a trailer. And you listed several folks that were there, all attorneys except for your sister, I believe, and your mother -- 
A. Correct. 
Q. -- at that meeting. At that meeting -- 
MR. TAYLOR: I just want to be clear about one thing, Mrs. Lipsey. She has testified that there was a meeting. She did not provide the date. The date was provided by records from State [Snake] Farm's computers. 
MS. LIPSEY: Right. That's correct. That's correct. 
Q. But let's talk about -- you do remember that there was a meeting in spring, early spring, I guess, of 2006? 
A. Yes. 
Q. And at that meeting the attorneys that you listed earlier were present along with your  mother and your sister? 
A. Yes.

So from this we can see that Kerri Rigsby's belief was that the lawyers she named, Chip, Mary, Todd, Tony, were at the earlier of the trailer meetings, the one that occurred in March.  It's possible she was mistaken, of course. But that is the inference one must draw from her testimony.

What does this not tell us? It does not tell us who Trailer Todd was.  We know Todd Graves is one of the lawyers with his name on the lawsuit, but Trailer Todd might very well have been someone else named Todd. It does not tell us who looked at the computer while it was logged on to State Farm, excuse me, Snake Farm computers.  We know Cori Rigsby did, and Kerri Rigsby said it is likely she did as well.  Beyond that, the testimony is not complete. 

My question: does it matter whether lawyers looked at the documents on the server? What is the difference between looking at data that is on someone's server, and looking at that information after it has been illicitly downloaded from the server? Would you feel any better about me if you learned I was not the one who went into a house to take papers off someone's desk, but instead I had an arrangement with the household butler to take them, and then I read the papers only after he came outside and handed them to me? What about if I read them a month after he took them, would that be better? 

So let's return to the Graves quote from the Kansas City Star story:

“They’re trying to cast these aspersions on us by saying that on March 11 (2006) we were with these girls in a trailer and got on the State [Snake] Farm Web site and viewed stuff,” Graves said. “The depositions State [Snake] Farm cites don’t say that.”

A fair inference from the Kerri Rigsby testimony is that lawyers named Chip, Mary, Tony and Todd were in the trailer on March 11 -- a fair inference, for that is what she said.  Again, she could be mistaken, but since she was there and was the star of the show, her words carry some weight on this issue.  Neither of the Rigsbys said Chip, Mary and Todd watched as the information was downloaded, although neither said this did not happen, either. It does appear, however, that a fair reading of the Cori Rigsby deposition is that Tony DeWitt read documents off her computer on March 11, 2006, and possibly also that he was in control of her computer as well, doing what exactly we do not know for sure.  But we can say with some degree of assurance that he was not using the computer, for example, to get online and play chess against Shredder, because his purpose in being at the trailer had to have something to do with the False Claims Act case that was filed the next month. 

Whether this means Tony viewed the documents when they were on the server or after they were downloaded is not clear, but again, does that really matter? Even if Chip, Mary and Todd were not present at all on March 11, isn't the real question whether they viewed and made use of the documents knowing how they were obtained? And if Tony DeWitt was in the trailer on March 11, which appears to be the import of the testimony, are not the others charged with the knowledge of their colleague? Also, in the quote, who does "we" refer to?  

Just sayin'.

One thing I don't think I've seen to this point is a categorical denial that Robertson or Graves ever met with the Rigsbys in the trailer, nor have I seen a denial that they knew how the documents were obtained and viewed and made use of them anyway.  This latter element would be hard to deny, in my opinion, in that the lawsuit is based on the documents and the Rigsbys are the plaintiffs.    

Also, let's just focus ever so briefly on the last Graves quote from the story's excerpt:

“You’re not supposed to be able to go in court and just throw things up there,” Graves said. “Maybe in the blog world you can, but that’s not how you’re supposed to plead cases.”

I don't remember, in all the many stories that were done before about the "whistleblower" Rigsby sisters and this False Claims Act case, was there any peep from Graves or Robertson about how the publicity might unfairly affect the other side, or about how judges were too dumb to make up their own minds on the evidence?  In the story, Robertson also says, apparently speaking of State, er, Snake Farm, "I know they’re trying to sell a story, but it would be useful if they’d try to get the facts before trying to influence improperly any judge who might be reading the Internet." 

The other pro-Rigsby stories, it seems, would not confuse a judge who just happened to pick up the paper or sign on to the Internet, but Trailer Lawyer stories will.  Hmmm.  This is an interesting defense, not particularly persuasive in my opinion, that suggests judges cannot withstand the power of the Internet, and that Snake Farm is behind blog posts on this issue, at least insofar as it wrote a juicy storyline that will get bloggers stoked.  In case you want to look, here's a copy of the Snake Farm memorandum in support of its Motion to Disqualify Trailer Lawyers.  I know one thing Snake Farm is not responsible for, however, and that is the testimony of Cori and Kerri Rigsby -- and the Trailer Lawyer story comes from them. So whatever the truth is, these allegations originate with the lawyers' own clients. 

Incidentally, if we are going to keep talking about the Trailer Lawyers, we are going to need an official theme song.  Considering the first line of this song, I can't think of a better one. 

Full post as published by Insurance Coverage Law Blog on April 23, 2008 (boomark / email).