Case 2:11-cv-03695-RDP Document 634 Filed 06/19/20 Page 1 of 26 FILED

2020 Jun-19 PM 01:51

U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

)
DRUMMOND COMPANY, INC., )
)
Plaintiff, )
)
v. ) Case No. 2:11-CV-3695-RDP
)
TERRENCE P. COLLINGSWORTH, )
individually and as an agent of Conrad & )
Scherer, LLP; and CONRAD & SCHERER, )
LLP, )
)
Defendants.

TERRENCE P. COLLINGSWORTH’S CERTIFICATION OF

OBJECTIONS TO REPORTS AND RECOMMENDATIONS

INTRODUCTION

As per the Court’s Order, ECF No. 631, Terrence P. Collingsworth files this

certification of objections made to the five (5) Reports and Recommendations (R&Rs)

filed by the Special Master: the February 14, 2019 Amended Report and

Recommendation Regarding Claims of Privilege Over Documents Logged as “Bucket

2” on Defendants’ Privilege Logs, ECF No. 569; the February 28, 2019 Amended

Report and Recommendation Regarding Claims of Privilege Over Documents Related

to Ivan Otero, ECF No. 572; the Special Master’s September 23, 2019 Report and

Recommendation Regarding Documents Potentially Related to Witness Payments,

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ECF No. 590; March 25, 2020 Report and Recommendation Regarding Witness

Payments, ECF No. 622;1 and the June 1, 2020 Report and Recommendation

Regarding Certain Uncategorized Documents, ECF No. 633.2

As to documents identified for production by the Special Master in Exhibit B

to all of the referenced R&Rs, Defendant Collingsworth reluctantly withdraws all

objections based on an improper application of prong one of the crime fraud

exception, whether the documents at issue could support a prima facie case of a crime

or fraud. However, for the reasons stated herein, for all documents in the Exhibit Bs

to the five R&Rs, Defendant Collingsworth renews and certifies his objections to the

improper application of the second prong of the crime fraud test, whether a specific

document was “in furtherance of” a crime or fraud.

Thus, for the Exhibit Bs to the five R&R’s, ECF Nos. 569, 572, 590, 622, and

633, Defendant Collingsworth certifies his objection to the application of the second

prong of the crime fraud exception and maintains that none of the documents

identified in the Exhibit B’s to the specific R&Rs should be produced in whole or in

part to Drummond based on the crime fraud exception. The five Exhibit Bs that

1 As per the Court’s Order, Defendants filed objections to the March 25, 2020 R&R but did not yet
brief the legal basis for the objections. Defendant Collingsworth served all parties with his
objections on April 17, 2020.
2
Defendants’ deadline for objecting to the Special Master’s June 1, 2020 Report and
Recommendation Regarding Certain Uncategorized Documents, ECF No. 633, is not yet here.
However, Defendant Collingsworth includes his objections to that latest R&R within the
certification provided herein and objects to the designation all of the documents in Exhibit B as
satisfying the second prong of the crime fraud exception.

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identify the documents the Special Master found to have satisfied the second prong of

the crime fraud test are filed as Exhibits hereto and Defendant Collingsworth

confirms his objection to producing any of the specific documents listed in them and

incorporates those lists by reference as if fully set forth herein.

Defendant Collingsworth further confirms he is asserting work product

privilege over all of these documents, and neither the Special Master nor Defendant

Conrad & Scherer should produce them to Drummond in whole or in part as they are

not authorized to waive Mr. Collingsworth’s privilege. Defendant Collingsworth

respectfully requests the Court to sustain his objections to producing these documents

under the crime fraud exception.

To the extent that Defendant Conrad & Scherer files a certification today for

any objections beyond the identification of documents in the five Exhibit Bs as

subject to the second prong of the crime fraud exception, Defendant Collingsworth

joins in those certifications and adopts them as if fully incorporated herein.

If the Court does not sustain Mr. Collingsworth’s objections to the application

of the second prong of the crime fraud test to all of the documents in the five Exhibit

Bs, judicial economy would be best served if the Court certifies for appeal under 28

U.S.C. § 1292(b) the issue of the proper scope of the second prong of the crime fraud

exception. This involves a controlling question of law as to which there may be a

substantial ground for difference of opinion. Further, an immediate appeal with

respect to this issue will materially advance the ultimate termination of this litigation.
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The application of the second prong of the crime fraud exception is the overarching

roadblock to completing the lengthy document review process in this case. A

definitive ruling on appeal of the proper scope of the second prong would end that

roadblock once and for all.

Finally, if the Court declines to certify the issue for appeal, Mr. Collingsworth

has no choice but to refuse to waive his work product privilege and decline to

approve the production of any of the crime fraud documents based on an overbroad

application of the second prong of the test to the documents listed in the five Exhibit

Bs. In this unique situation, the Court should find Mr. Collingsworth in contempt,

which would allow him to appeal as a matter of right. See, e.g., Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 110-11 (2009).

STANDARD OF REVIEW

Objections to findings of fact and conclusions of law in a Special Master’s

report and recommendation are reviewed de novo by the Court. See Fed. R. Civ. P.

53(f)(3)-(4); see also McBryar v. Ala. Dep’t of Corr., No. 5:13-CV-02100-MHH, 2015 WL

4032180, at *1 (N.D. Ala. June 30, 2015). Moreover, the Special Master’s

recommendations regarding privilege determinations are conclusions of law that a

district court reviews de novo. See e.g., High Point SARL v. Sprint Nextel Corp., No.

CIV.A. 09-2269-CM, 2012 WL 5306268, at *3 (D. Kan. Oct. 29, 2012).

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ARGUMENT

I. Defendant Collingsworth Withdraws Any Objections Based on the

Special Master’s Failure to Apply Prong 1 of the Crime Fraud Test.

Defendant Collingsworth had previously objected to producing any of the

documents identified in whole or in part as subject to the crime fraud exception

because neither of the two prongs of this narrow exception were properly applied.

There is no dispute what the test requires:

The crime-fraud exception allows a party—in rare circumstances—to obtain

discovery that otherwise would be protected by the attorney-client privilege or
the attorney work product doctrine. The crime-fraud exception applies when a
two-part test is satisfied: “First, there must be a prima facie case showing
that the client was engaged in criminal or fraudulent conduct when he
sought the advice of counsel, that he was planning such conduct when he
sought the advice of counsel, or that he committed a crime or fraud subsequent
to receiving the benefit of counsel's advice. Second, there must be a showing
that the attorney's assistance was obtained in furtherance of the criminal or
fraudulent activity or was closely related to it.”

Drummond Co. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1335 (11th Cir. 2018)(quoting

Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987)(emphasis

added)).

The Special Master did not assess in any way whether prong one was satisfied

in any of the R&Rs and instead assumed that prong one was already found by the

Court to be satisfied and was not subject to verification by in camera review. See, e.g.,

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ECF No. 569 at ¶¶ 43,50 and ECF No. 571 at ¶¶ 44,51. While the Court itself did not

review any of the documents at issue in making its initial crime fraud ruling, the Court

did conclude that the categorization of the documents at issue could constitute

sufficient evidence to establish a prima facie case for the potential crimes identified by

the Court: witness bribery, suborning perjury, and fraud on the Court. See ECF No.

417 at 8-26. On appeal, while the issue of the proper elements of and application of

the crime fraud test was not directly at issue, the Eleventh Circuit arguably approved

of the District Court’s application of prong one of the crime fraud test and appeared

to assume that only the second prong of the crime fraud test was at issue in the in

camera review. See Drummond Co. v. Conrad & Scherer, 885 F.3d at 1332-33, 1338, and

1339, n.14. Accordingly, while Defendant Collingsworth maintains the Special Master

should have reviewed the actual documents to determine whether each document met

the first prong, in the interests of reducing the issues for resolution, he withdraws any

objections based on the prong one assessment of the crime fraud exception.

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II. Defendant Collingsworth Renews and Certifies His Objections

Based on the Special Master’s Overbroad and Improper Application
of Prong Two of the Crime Fraud Test – Whether Each Document
Is “In Furtherance Of Or Closely Related To a Crime or Fraud.”

Whether explicitly or in practice, the Special Master applied an overbroad

standard in assessing the second prong of the crime fraud test in finding the

documents in the five Exhibit Bs satisfied the test. In reviewing four specific

documents Drummond sought to provide the Colombian authorities investigating

Drummond’s funding the AUC’s crimes against humanity, this Court likewise applied

an overbroad interpretation of the second prong. See ECF No. 596 at 2-3. Defendant

Collingsworth’s objection to producing any of the crime fraud documents based on

an improper application of the standard is a question of law that applies to all of the

crime fraud documents that were improperly reviewed based on an erroneous

standard. An objection to producing any of the documents listed in the Exhibit B’s to

the five R&R’s, ECF Nos. 569, 572, 590, 622, and 633, is necessary to ensure Mr.

Collingsworth’s work product privilege is not lifted based on an improper application

of the second prong of the crime fraud test.

At the outset of the crime fraud review process, the Special Master applied the

overbroad “related to” test rather than the required “in furtherance of the criminal or

fraudulent activity or was closely related to it” standard: “The Special Master also

finds that the following documents and communications that were reviewed in camera

relate to the alleged criminal or fraudulent activities established under the prime facie
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case.” ECF No. 536 at ¶ 51 (emphasis added). Based on Defendants’ objections, the

Court instructed the Special Master to, among other things, revise the R&Rs to apply

the proper standard. See Orders of January 7, 2019 (ECF No. 565) and January 10,

2019 (ECF No. 2019). However, the correction to the wording of the second prong

test appears to have had little impact on the application of the standard.3

Defendant Collingsworth accordingly certifies his objection to the application

of the second prong of the crime fraud test to all of the documents identified in

Exhibit Bs to the five R&Rs, ECF Nos. 569, 572, 590, 622, and 633, and specifically

lists the documents he is objecting to producing by attaching as exhibits the five

Exhibit Bs at issue which list those documents. The identification of those documents

is incorporated herein by reference as if fully set forth herein and Defendant

Collingsworth objects to producing any of them under the crime fraud exception.4

Despite the corrected wording the Special Master applied for the second prong

of the test, in practice, the application of the standard continues to be overbroad.

None of the assessments of documents identified in Exhibit B to the various R&Rs

actually meet the proper standard of whether a specific document is “itself in

3
For example, with respect to the Bucket 2 documents, 127 were identified as subject to the crime
fraud exception and 122 were identified in the amended version. With the Otero documents, 795
were identified in the original R&R as subject to the crime fraud exception and 768 were identified
in the amended version.
4
While neither is within the crime fraud exception, Mr. Collingsworth has no objection to producing
two documents improperly identified as subject to the crime fraud exception: 413500 (Attorney
Cooperation Agreement with Ivan Otero that has already been produced) and 529418 (a
communication from a third party which is not work product).
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furtherance of the crime or fraud.” In re Richard Roe, 68 F.3d 38, 40 (2nd Cir.

1995)(emphasis in original); Citing Roe, the Court of Appeals for the Fifth Circuit

agreed: “We agree with Appellant that the district court's orders . . . are overly

broad. We conclude that the proper reach of the crime-fraud exception when

applicable does not extend to all communications made in the course of the attorney-

client relationship, but rather is limited to those communications and documents

in furtherance of the contemplated or ongoing criminal or fraudulent conduct.”

In re Grand Jury Subpoena, 419 F. 3d 329m 343 (5th Cir. 2005)(emphasis added).

Defendant Collingsworth has demonstrated the proper scope of the “in

furtherance of” test in detail in his previously filed oppositions to the various R&Rs.

See, e.g., ECF No. 577 at 12-29. Rather than repeat this lengthy demonstration of the

erroneous application of the second prong of the crime fraud test to all of the crime

fraud documents in this case, Defendant Collingsworth references and incorporates

his prior argument by reference as if fully set forth herein and highlights here the key

legal issues previously raised.

First, upon review of the documents identified for production by the Special

Master in the Exhibit Bs, it is clear none of the documents could be used to

further the commission of any of the three identified crimes, witness bribery,

suborning perjury, and fraud on the Court. While the documents identified in the five

Exhibit Bs and the crimes they are purportedly “in furtherance of” are specifically

identified, the crucial step of articulating how a given document is “in furtherance of”
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the identified crime is not included. Thus, there is an objective and crucial missing link

in any judicial review process – there is no basis to assess whether the “in furtherance

of” standard was properly applied. In re Richard Roe, 68 F.3d at 40-41 (the District

Court must “examine each document and communication to determine whether the

client communication or attorney work product in question was itself made with the

intent to further a crime or fraud”). This goes to the very heart of what is required

to lift the important privileges involved and it is legal error not to provide in an

objective, reviewable format with analysis of how each document “was itself” in

furtherance of a crime.

Second, the documents identified by the Special Master are not “in

furtherance of” an ongoing crime or fraud if they merely could possibly reflect

evidence of the crime or fraud. In other words, the law is clear the crime-fraud

exception is not a discovery device to obtain evidence that would merely relate to a

crime or fraud. Instead, for a document to be subject to disclosure, the document or

communication itself must have been in “furtherance of the ongoing or future crime

or fraud at issue.” In re Grand Jury Subpoena, 419 F.3d at 347; Schroeder, 842 F.2d at

1226-27; Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1416-17 (11th Cir. 1994)

(citing Schroeder, 842 F.2d at 1227, the Eleventh Circuit found that the communication

at issue had not been used to further a crime or a fraud).

Defendants raised these fundamental objections to the Special Master’s

application of the second prong with the Court in the context of the Court’s review of
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four specific documents that Drummond asked to be reviewed on an expedited basis

for submission to Colombian prosecutors investigating Drummond’s financing of the

AUC. See ECF No. 596 at 2-3. The Court specifically rejected Defendants’ argument

that each document must itself be “in furtherance of or closely related to” the crime

or fraud at issue. The Court said there was no requirement of any document being a

“smoking gun” because it would be “pretty stupid” if the parties put in writing their

intent to commit a crime. Id. at 2-3, n.1. This reasoning was erroneous.

In assessing the scope of the “in furtherance of” standard, the Court relied on

cases evaluating whether a person could be convicted of fraud based on indirect

evidence because direct evidence of fraudulent intent is rare. Id. This was legal error

because the standard of evidence for committing fraud has nothing to do with the

much different question of whether the documents at issue satisfy the second prong

of the crime fraud exception. In rejecting Defendants’ position that merely being

possible evidence of a crime is not sufficient to invoke the second prong of the crime

fraud test, the Court reasoned that “Defendants cite non-binding authority from the

Second Circuit, not the law of this case. (Doc. #593 at 4-5) (quoting United States v.

Jacobs, 117 F.3d 82, 88 (2d. Cir. 1997) . . .” ECF No. 596 at 2. Defendant

Collingsworth relied on much more than the Jacobs case; in seeking to apply specific

caselaw to interpret the Eleventh Circuit’s specific “in furtherance of” standard for

the second prong of the crime fraud test, Drummond Co. v. Conrad & Scherer, 885 F.3d

at 1335, he cited to the uncontroverted great weight of authority. Indeed, in first

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articulating the “in furtherance of” standard in the Eleventh Circuit, the Schroeder

Court relied entirely on sister Circuits in adopting the standard: “there must be a

showing that the attorney's assistance was obtained in furtherance of the criminal

or fraudulent activity or was closely related to it. See, e.g., In re International Systems

and Controls Corporation Securities Litigation, 693 F.2d 1235, 1242 (5th Cir. 1982); In re

Sealed Case, 219 U.S. App. D.C. 195, 676 F.2d 793, 814-15 (D.C. Cir. 1982) (Sealed Case

I); In re Murphy, 560 F.2d 326, 338 (8th Cir. 1977).” Schroeder, 842 F.2d at 1226.

Considering the established cases articulating the standard for the second

prong, the leading expert on evidence concluded: “the court must determine that the

communication was itself in furtherance of the crime or fraud, not merely that it

has the potential of being relevant evidence of criminal or fraudulent activity.”

1 John W. Strong, McCormick on Evidence 382 (5th ed. 1999) (emphasis added).

This is the standard that should have been applied in this case and has been

consistently applied by courts that have considered the issue. A communication is not

in furtherance of an ongoing crime or fraud if the communication merely reflects

evidence of the crime or fraud. The crime-fraud exception is not a discovery device to

obtain evidence that would merely relate to a crime or fraud. Instead, for a document

or communication to be subject to disclosure, the document or communication itself

must have been in “furtherance of the ongoing or future crime or fraud at issue.” In re

Grand Jury Subpoena, 419 F.3d at 347; Schroeder, 842 F.2d at 1226-27. In undertaking the

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“in furtherance of” analysis, a court must finely parse whether each document at

issue was used in furtherance of the crime or fraud. See e.g., Tindall v. H&S Homes,

LLC, 757 F. Supp. 2d 1339, 1350 (M.D. Ga. 2011).

In Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1416 (11th Cir. 1994), the

plaintiffs alleged the head of a union had a conversation with the union’s attorneys

regarding a letter that could be used to show the union’s attempt to conceal illegal

actions of its negotiators. The plaintiffs tried to overcome attorney-client privilege to

compel the head of the union to testify regarding conversations with his attorney

about the letter. Id. at 1417. The court held, although the plaintiffs’ evidence of the

existence of a cover-up may have satisfied the first prong of the test, the plaintiffs

failed to show the communication was used to further a crime or a fraud. Id. (citing

Schroeder, 842 F.2d at 1227).

The fundamental requirement that was ignored by the Special Master’s findings

is that a document literally must be part of a crime about to be committed5 to be

subject to the crime fraud exception: “the crime-fraud exception does not apply

simply because privileged communications would provide an adversary with evidence

5
There is no question that the crime fraud exception does not apply to communications regarding
past or completed crimes or frauds. See In re Grand Jury Subpoena Duces Tecum Dated Sept.
15, 1983, 731 F.2d 1032, 1038-41 (2d Cir. 1984) (“[a]dvice sought in furtherance of a future or
ongoing fraud is unprivileged; communications with respect to advice as to past or completed
frauds are within the privilege”); In re Fed. Grand Jury Proceedings, 89-10 (MIA), 938 F.2d
1578, 1581 (11th Cir. 1991) (“the crime-fraud exception does not operate to remove
communications concerning past or completed crimes or frauds from the attorney-client
privilege”). Thus, to the extent that the benign payment documents describe past security
payments, these could not possibly be in furtherance of any future scheme.
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of a crime or fraud”; but rather, “applies only when the court determines that the

client communication or attorney work product in question was itself in furtherance

of the crime or fraud.” In re Richard Roe, 68 F.3d at 40 (emphasis in original); United

States v. White, 887 F.2d 267, 271 (D.C. Cir. 1989) (“the legal advice ‘must relate to

future illicit conduct by the client; it [must be] the causa pro causa, the advice that leads

to the deed.’”) (citations omitted).

In one recent case, In re Grand Jury Matter, 847 F. 3d 157 (3rd Cir. 2017), the Third

Circuit overturned a finding that the crime fraud exception applied to an attorney-client

communication in which the attorney advised how to make fraudulent amendments to

a tax return. Id. at 160-61. The Court found the mere discussion of a possible

criminal act does not make the communication evidence “in furtherance of” the

criminal act because there was no evidence that the advice was followed or that the

crime was committed. Id. at 166. The Court stated the standard “exists for the same

reason that certain conspiracy statutes require proof that a defendant engaged in an

overt act to further the crime. In both settings we want to make sure that we are not

punishing someone for merely thinking about committing a bad act.” Id.

Similarly, in In re Feldberg, the Seventh Circuit finely parsed among eight

different questions and answers posed to an attorney during a grand jury investigation,

determining that only some of them may be subject to the crime-fraud exception.

Matter of Feldberg, 862 F.2d 622, 628 (7th Cir. 1988). See also In re BankAmerica Corp. Sec.

Litig., 270 F.3d 639, 643 (8th Cir. 2001) (“The district court focused only on plaintiffs’
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threshold showing of fraud. The court then assumed, without any further showing by

plaintiffs, that all contemporaneous attorney-client communications ‘could be

construed’ as in furtherance of the alleged fraud. This was error.”).

The Eleventh Circuit clearly adopted the “in furtherance of” prong of the

crime fraud exception and set a clear foundation for application of the rule that was

not applied in this case. “The purpose of the second prong is to identify

‘communications that should not be privileged because they were used to

further a crime or a fraud.’” Cox, 17 F.3d at 1416 (quoting Schroeder, 842 F.2d at

1227)(emphasis added). Relying on uniform interpretations from other Courts and

commentators to add more breadth to the proper application of the standard is

entirely appropriate in this situation. See Schroeder, 842 F.2d at 1226. The great weight

of authority holds that there must be an articulation of how a specific document is in

furtherance of a crime or fraud and the mere fact that a document might be evidence

of crime or fraud does not convert it to being “in furtherance of” a crime or fraud.

The Court’s ruling affirming the Special Master’s application of the second

prong of the test to the four documents at issue, and the overall application of the

standard by the Special Master to all of the documents identified in the Exhibit Bs to

the R&Rs at issue, contradicts this standard and even takes it a step further by ruling

that if a given document could be construed as indirect evidence that might support

criminal liability, this would allow application of the crime fraud exception to that

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document. Defendant Collingsworth does not dispute that a defendant could be

convicted of bribery or fraud based on indirect or circumstantial evidence, but that

does not support the leap that such indirect (or direct) evidence can be supplied by

documents that are not themselves “in furtherance of” the crime or fraud.

The Court laments that if Defendants’ formulation of the second prong of the

crime fraud test were applied, “most likely no documents would be due to be

produced . . .” See ECF No. 596 at 2-3, n. 1 (emphasis in original). Based on a proper

application of the second prong of the crime fraud exception to the documents at

issue, that is in fact the case -- there are no documents in any of the Exhibit Bs to the

referenced R&R’s that are themselves in furtherance of a crime or fraud, and the mere

possibility that any of the documents might be construed as indirect evidence of a

crime or fraud does not override proper application of the standard. Circuit Courts,

including the Eleventh Circuit, have consistently reversed overbroad applications of

the “in furtherance of” standard because the District Court found that possible

evidence of a crime was sufficient to lift the privilege using the crime fraud exception.

See, e.g., Cox, 17 F.3d at 1416; In re Grand Jury Matter, 847 F. 3d at 160-61,166; In re

Richard Roe, 68 F.3d at 40; In re Grand Jury Subpoena, 419 F.3d at 347; Matter of Feldberg,

862 F.2d at 628; In re BankAmerica Corp. Sec. Litig., 270 F.3d at 643. It is notable that in

most of these cases the defendants were “stupid” enough to discuss their criminal

actions or plans in writing, but still, because the documents or communications were

not themselves “in furtherance of” a crime or fraud, the standard was not satisfied.
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Here, the complete lack of any discussion in the documents of any plan made

or action taken explicitly in furtherance of witness bribery, suborning perjury, or fraud

on the court prevents any of the documents identified by the Special Master from

being disclosed. Discussions of benign payments described as being for legitimate

purposes are not even remotely related to any crime about to be committed, let alone

“in furtherance of” any crime. That any document may be considered possible

evidence of a crime does not negate the required “in furtherance of” showing.

There is a sharp and clear legal dispute in this case as to the proper application

of the second prong of the crime fraud test. The Court’s ruling allowing the disclosure

of the four specific documents in ECF No. 596 at 2-3, and the Special Master’s

application of the test to all of the documents identified in Exhibit B to the five R&Rs

at issue, misapplied the standard as a matter of law.

A close review of the four documents the Court found had satisfied the second

prong of the crime fraud exception demonstrates that the overbroad application was

legal error. As an initial matter, as noted, the Court expressly reasoned that if a

document could be construed as even indirect evidence of a crime, this was sufficient

to invoke the second prong of the crime fraud exception. See ECF No. 596 at 2-3, n.

1. As established above, this itself is legal error. Getting into the details of the

documents further demonstrates that none of them are “in furtherance of” a crime or

fraud as is required. The documents involve legitimate attorney work product

discussions of strategy, evidence gathering, case logistics, or simply benign topics.

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CSPRIV 410282

The Court went beyond the Special Master’s recommendation and found this

entire document was subject to the second prong of the crime fraud exception. See

ECF No. 596 at 3. The Court reasoned that “[f]or example, in the document,

permissions for depositions are discussed, expenses are authorized, ‘costs to JBM,’

‘JBM’s impatience,’ and security payments are referenced.” Id. None of these

references are “in furtherance of” a crime or fraud. Those topics are indeed discussed

but in the context of the document, these are legitimate strategic issues. Plaintiffs

understood that to take the jailhouse depositions, permission from the prison

authority, INPEC, was needed and counsel discussed what needed to be done. There

is no reference to “costs to JBM,” who was in prison; the reference was to cover

“reasonable expenses” for [co-counsel] Ivan [Otero] to meet with JBM. There is a

reference to “JBM’s impatience,” but the context is clear that this was in refence to a

fully-disclosed arrangement for Albert van Bilderbeek to obtain information from

JBM. This arrangement is not itself a crime or fraud. Further, there is not even a hint

that JBM was changing his testimony or had been influenced in any way by the

arrangement, which would be necessary for the document to “further” the alleged

crime. The reference to “security payments” was a single reference to the need to get

funds so that Ivan [Otero] could get his car armor-plated because there had been

several attacks on him. This legitimate security issue for a lawyer risking his life is not

“in furtherance of” a crime or fraud. The Court also removed work product
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protection for what is clearly a legitimate strategic discussion between Mr.

Collingsworth and his co-counsel Francisco [Ramirez] about the great importance of

getting the prison permission and confirming the deposition schedule. There is not a

hint in this document of a plan or scheme to commit a crime or fraud and it is

doubtful whether the document even could constitute indirect evidence of a crime or

fraud.

CSPRIV 441407 and 441408-12

This is an email transmitting a draft declaration of “ET” [El Tigre]. The Court

found it was in furtherance of witness bribery and suborning perjury because “[i]n the

document, there is mention made of ‘security and relocation funds.’ Attorney

comments on the draft declarations are necessary to compare how the declarations

changed over time.” ECF No. 596 at 3-4. The discussion of security and relocation

funds is in the context of noting that Plaintiffs were about finished with El Tigre’s

Declaration, which, as the email makes clear, was going to be provided to

Drummond, so such funds were necessary. This was because, as per evidence in this

case, Plaintiffs expected Drummond and its remaining AUC thugs to try to violently

retaliate against El Tigre’s family once the Declaration was released. There is not even

an indirect allusion to El Tigre himself receiving funds for his testimony or that he

modified his testimony in any way or that any of it was untrue, let alone discussing

how the Plaintiffs were going to accomplish these crimes. The draft Declaration and
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attorney notes are textbook examples of pure work product. The questions asked in

the text of the draft declaration are seeking legitimate follow up details that any

competent attorney would have asked. There is no discussion of trying to get El Tigre

to change his testimony or falsify the facts. The Court’s decision to even lift the

privilege on the password to the document is inexplicable; that password is not even

remotely related to a crime or fraud, let alone “in furtherance of” one.

CSPRIV479561

The Court described this as ‘an email discussing rates paid to Ivan Otero for

‘work on JBM.’” ECF No. 596 at 4.

CSPRIV479562

The Court described this as “a time sheet drafted by Lorraine

Leete reflecting hours spent by Ivan Otero meeting and following up with Jaime

Blanco.” ECF No. 596 at 4.

The court summarily concluded “that [both of] these documents are due to be

produced because the provisions in the documents are ‘closely related to’ the alleged

crimes or frauds of witness bribery and suborning perjury.” ECF No. 596 at 4. There

is nothing about either of these documents that remotely suggests there is something

nefarious occurring. There is a legitimate and routine discussion about paying Ivan

Otero for his legitimate work for Plaintiffs in working with Jaime Blanco to complete

his Declaration. The unarticulated linkage of these benign, legitimate documents to

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“witness bribery and suborning perjury” is precisely why Defendant Collingsworth

has objected to summary designations without a clear articulation of how the

document “itself” was “in furtherance of” a crime or fraud.

Witness bribery and subornation of perjury are similar crimes involving

intentional interference in the truthful testimony of a witness. Using the Special

Master’s legal definition of these crimes, with respect to witness bribery, there is no

discussion in any of the four documents that could be construed as in furtherance of

any “offer, promise, or giv[ing] anything of value to a person testifying in a legal

proceeding with the intent of influencing the testimony of that person.” 18

U.S.C. § 201; Ala. Code § 13A-10-121(a).Bucket 2 R&R, ECF No. 569 at ¶ 48; Otero

R&R, ECF No. 572 at ¶ 49 (emphasis added).

These specific elements are simply not even remotely discussed or referred to

in any of the documents. The documents could not be used as evidence of these

crimes, let along objectively be “in furtherance of” them.

Based on this discussion of the four representative documents the Court did

rule on and found to be subject to production and the uniform law that the

documents must themselves be in furtherance of a crime or fraud and not merely

possible evidence of one, Defendant Collingsworth submits that he has a legitimate

objection to all of the findings by the Special Master applying the second prong of the

test and he hereby certifies those objections. Defendant Collingsworth respectfully

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requests the Court to sustain his objection to producing any of the documents in the

five Exhibits Bs, attached hereto as exhibits, based on the crime fraud exception.

III. The Application of the “In Furtherance of” Test Should be Certified for
Appeal Under Section 1292 (b)

When previously invited in this case to review the articulation of the

substantive test for application of the crime fraud exception, the Eleventh Circuit

declined and instead accepted for review Defendant Conrad & Scherer’s agency-

related arguments. See Drummond Co. v. Conrad & Scherer, LLP, 885 F.3d 1324 (11th

Cir. 2018). The Court did confirm the proper articulation of the “in furtherance of”

test but did not expand upon it or offer guidance on its application. See id. at 1335.

However, now that there is a record of how the second prong has been applied here,

there is a strong case to go back to the Court to seek review of the scope of the “in

furtherance of” test. The District Court’s application of the test to the four

documents sent to the Colombian prosecutor, ECF No. 596 at 2-4, affirming the

Special Master’s application of the standard, are a representative sample and would

allow a nonburdensome record for the Court to review. As the Supreme Court has

recognized, “[t]he preconditions for § 1292(b) review . . . are most likely satisfied

when a privilege ruling involves a new legal question or is of special consequence, and

district courts should not hesitate to certify an interlocutory appeal in such cases.”

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110-11 (2009). Here, the Eleventh Circuit

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has not yet ruled on the full scope of the second prong and this case presents a good

vehicle for determining whether the Eleventh Circuit will join the great weight of

authority in explicitly requiring that each document must not only be “in furtherance

of” a crime or fraud but that it cannot be merely possible evidence of the crime or

fraud. This is particularly true given that the Supreme Court has yet to “decide the

quantum of proof necessary ultimately to establish the applicability of the crime-fraud

exception.” United States v. Zolin, 491 U.S. 554, 563, 109 S. Ct. 2619, 2626, 105 L. Ed.

2d 469 (1989).6

Appellate review of the issue now would strongly serve the interests of judicial

economy. The proper scope of the second prong of the crime fraud exception is the

overarching roadblock to completing the lengthy document review process. A

definitive appellate ruling on the proper scope of the second prong would end that

roadblock one way or the other and allow this case to advance towards a resolution

on the merits.

Further, there is a serious “special consequence” presented by this case.

Without review of the scope of the test, thousands of pages of work product

documents that have been determined to be subject to the crime fraud exception

6
See also In re Gen. Motors Corp., 153 F.3d 714, 716 (8th Cir. 1998) (“We note that the Supreme Court
has expressly declined to specify the ‘quantum of proof’ required to establish the crime/fraud
exception.”). Moreover, because “[c]ourts have enunciated slightly different formulations for the
degree of relatedness necessary to meet” the crime-fraud standard, Schroeder, 842 F.2d at 1227, and
because it applies only in “rare and extraordinary circumstances,” it is difficult to discern clear
boundaries between where the exception should or should not apply. Id.
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based on an overbroad application of the “in furtherance of” test puts Mr.

Collingsworth’s work product privilege at risk. This Court should certify this issue for

appeal to assure full and careful review of the privilege issues before the privileges are

breached beyond the four privileged documents that have already been erroneously

provided to Drummond.

IV. If the Court Declines to Certify for Appeal the Scope of the Second
Prong of the Crime Fraud Test, the Court Should Find Defendant
Collingsworth in Contempt so that He Can Appeal.

This case puts Defendants in an unusual position with respect to asserting

work product privilege over the documents identified for production by the Special

Master in the Exhibit Bs to the five R&Rs. As indicated by his Declaration, filed

concurrently herewith, Defendant Collingsworth has raised a legitimate, good faith

legal objection to the application of the second prong of the crime fraud test to all of

these documents. Should the Court overrule the objections and decline to certify the

issue for appeal, Mr. Collingsworth could ordinarily exercise what the Supreme Court

has expressly found to be a legitimate option – refuse to produce the privileged

documents and be found in contempt, which would allow him to appeal as a matter

of right. See, e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110-11 (2009). Here,

the Special Master already has possession of the documents so Mr. Collingsworth’s

right to refuse to produce the documents is not necessarily entirely protected.

However, Defendants certainly did not intend to waive their privileges or appellate

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rights when providing documents they explicitly labeled as privileged for in camera

review. Mr. Collingsworth should be permitted to exercise his right to protect his

privileged documents recognized by the Supreme Court in Mohawk Indus., Inc. He

respectfully requests that his consent must be given to waive any privileges and he

expressly declines to do so based on his legitimate, good faith objections. If the Court

overrules the objections and declines to certify, then the Court should find Mr.

Collingsworth in contempt for refusing to lift his privilege and produce the

documents. Based on Mohawk Indus., Inc., Mr. Collingsworth can then exercise his

right to appeal the finding of contempt. 558 U.S. at 110-11.

Respectfully submitted this 19th day of June 2020.

/s/ Terrence P. Collingsworth

Terrence P. Collingsworth
Executive Director
INTERNATIONAL RIGHTS ADVOCATES
621 Maryland Ave. NE
Washington, D.C. 20002
202-543-5811
tc@iradvocates.org

Attorneys for Terrence P. Collingsworth

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CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of June 2020, I caused a true and
correct copy of the foregoing to be filed on the Court’s ECF system.

/s/ Terrence P. Collingsworth

Terrence P. Collingsworth

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