Tuesday, December 15, 2020

Has Drummond Company waived its right to delay evidence gathering in $75-million Roberson lawsuit after engaging in discovery proceedings of its own?

Burt Newsome

Drummond Company's most recent motion to stay discovery in a former vice president's $75-million lawsuit is improper because the company already has engaged in discovery of its own, meaning Drummond has no lawful grounds to block plaintiffs David and Anna Roberson from gathering evidence via the discovery process. Writes Burt Newsome, attorney for the Robersons, in their objection to the requested stay:

By filing its own discovery to the Robersons, Drummond Company has clearly waived any alleged right to prevent the Robersons from conducting discovery. See Ex Parte Great Escapes Travel Inc., 573 So. 2d 278 (Ala., 1990). Defendant Drummond Company is estopped from demanding a stay in a discovery process that it participated heavily in just seven days prior to seeking the stay. Such a ruling would be an extreme denial of due process to the Robersons.

 Drummond's attorneys seem to have selective memories regarding discovery in the Roberson case. Writes Nwsome:

Drummond, in its latest "emergency motion to stay discovery," lists out all the discovery that has been filed by the plaintiffs since this court entered an order for discovery in the case to commence. Drummond neglects to mention, however, that it too has filed a large amount of discovery of its own since the stay on discovery was lifted.

Newsome then lists five pieces of discovery Drummond propounded to the Robersons in the seven days before seeking a stay, including interrogatories, requests for production of documents, requests for admissions, and notices of depositions. Newsome also lays out the history of a case that has been marked by lengthy delays. (The Robersons' full objection is embedded at the end of this post.)

Drummond's mandamus petition and emergency motion to stay discovery present nothing new for this court, Drummond previously filed a motion for leave to file an interlocutory appeal and a motion to stay discovery, and this court denied those motions. In an effort to circumvent the denial of its motion for interlocutory appeal and its effect on the case moving forward, Drummond has now filed a mandamus petition with the Alabama Supreme Court and yet another motion to stay discovery (the third such motion seeking to prevent discovery filed by the defendants in this case) with this court. Drummond's most recent motion to stay is due to be denied as well.

Drummond's motion is, again, designed to prevent the Robersons from conducting discovery. Although this action was filed on March 15, 2019, the Robersons were stayed from conducting discovery until October 30, 2020, a period of over 19 months. As this court held, in denying Drummond's earlier motion to stay, it would be unreasonable and unfair to further prevent the Roberson's from conducting discovery.

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