Friday, November 13, 2020

David Roberson objects to Drummond's request for immediate appeal, arguing it is only designed to delay discovery in a case that already has experienced delays

David Roberson

Former Drummond executive David Roberson has filed an objection to the company's request for an interlocutory appeal in his $75-million fraud lawsuit.

Attorney Burt Newsome, writing on behalf of Roberson and his wife/co-plaintiff Anna, says there is no legal justification under the Alabama Rules of Appellate Procedure (ARAP) for the trial court to certify such an appeal -- stating essentially that Drummond's request is illegitimate, designed only to delay discovery in the case (The full Roberson objection is embedded at the end of this post.) Writes Newsome:

Under ARAP 5, for an interlocutory appeal to be granted an immediate appeal must materially advance the ultimate termination of the litigation. The interlocutory appeal statute sets a high threshold for certification to prevent piecemeal appeals; indeed, to obtain certification to appeal an interlocutory decision, a litigant must show that not only that an immediate appeal will advance the termination of the litigation but also that the appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion. . . . An analysis of the counts against Defendant Drummond that are still pending in this case shows that Drummond's request for an interlocutory appeal neither materially advances the termination of the litigation nor does it involve a controlling question of law as to which there is a significant ground for difference of opinion but is just yet another attempt by Drummond to delay the discovery process.

Newsome notes that Drummond's request only seeks appeal on three of the five counts that are pending against it:

Even if the interlocutory appeal was granted, this would not remotely end the litigation in this case. The same discovery would have to be done relative to the promissory fraud count that is in the complaint anyway. In addition, none of the remaining counts in the complaint against Defendant Drummond involve involve the receipt of legal services by either Plaintiff.

Drummond argues that its general counsel, Blake Andrews, gave David Roberson legal services, placing the case under the Alabama Legal Services Liability Act (ALSLA) and its tight statute of limitations. Newsome says, in so many words, that is rubbish:

There is not one piece of evidence in front of this Court that either Plaintiff ever received any legal services whatsoever from Defendant Drummond Company. There is not one piece of evidence in front of this court that either Plaintiff ever asked anyone at Drummond Company for legal advice and/or a question about whether or not anything was legal or illegal. Furthermore, Blake Andrews nor anyone else at Drummond could have ever served as David Roberson's attorney as this would have been a gross conflict of interest. . . .

In addition, the appeal pending as it relates to the claims of [codefendant] Balch and Bingham are clearly different. Balch and Bingham is a law firm and Drummond is not. It would be illegal for Drummond to give legal advice.

Newsome further notes that additional delay in the case would be unfair to the Robersons:

David Roberson . . . is currently out on bond pending the ruling on  his criminal appeal. He is also in his seventies and in poor health. If Mr. Roberson is in prison and/or deceased, his counsel's ability to do discovery will be severely hampered and I would have no way to consult with him during the case. . . . There is no just reason to further delay this case moving forward. Drummond merely seeks endless delays because it simply does not want to answer the Plaintiffs' discovery. Any further delay in conducting discovery in this case would be highly prejudicial to the Plaintiffs.


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