Madison - St. Clair Record

Friday, December 6, 2019

Hale attorneys must produce communications back to '05; State Farm seeks info for statute of limitations argument

By The Madison County Record | Oct 7, 2015

Cloud patrick

EAST ST. LOUIS – Lawyers who claim State Farm corrupted Illinois Supreme Court Justice Lloyd Karmeier must reveal communications with researchers back to 2005, U.S. Magistrate Judge Stephen Williams ruled on Sept. 28.

Williams denied a claim of work product privilege for 34 documents that State Farm requested for its defense in an $8 billion racketeering suit.

He wrote that plaintiffs waived any privilege through affirmative use of affidavits from researchers Doug Wojcieszak, Tom Denton and Daniel Reece.

The affidavits were filed in support of motions he decided.

“What the court is ordering generally consists of factual statements or assessments of information related to that addressed in the affidavits,” Williams wrote.

He denied privilege for seven other documents that plaintiffs classified as work product, describing them as public relations.

State Farm sought the documents to advance its argument that a statute of limitations ran out before plaintiffs filed suit.

State Farm suspects that in 2011, plaintiffs presented facts as new evidence when they had known those facts for years.

The oldest document in Williams’s order traces back to Jan. 19, 2005, in Karmeier’s first month at the Supreme Court.

A document log shows Wojcieszak told Denton about “emails with counsel.”

At that point, lawyers had begun planning to move for Karmeier’s disqualification from a pending decision in a case involving State Farm.

In that case, Avery v. State Farm, a Williamson County judge and jury had awarded more than $1 billion to a class of policyholders.

Other items from 2005 include:

- A document of Jan. 22, with blanks under “to” and “from,” pertained to donations from parties in the Avery case.

- A document of Jan. 24, from Wojcieszak to lawyer Robert Clifford of Chicago, pertained to State Farm’s witness list.

- A document of Jan. 25, with blanks under “to” and “from,” pertained to State Farm’s contributions and hidden influence.

- Documents of Jan. 31 and Feb. 1, from Wojcieszak to Clifford, pertained to initial analysis and supplemental information.

Karmeier didn’t recuse himself from the Avery case, and the other Justices didn’t disqualify him.

Later that year, Karmeier joined a majority that reversed the Avery judgment.

Avery petitioned the Justices to reopen the case in 2011, claiming his lawyers found new evidence of State Farm’s involvement in Karmeier’s campaign.

The Justices denied the petition.

In 2012, Avery’s lawyers sued State Farm on behalf of a new lead plaintiff, Mark Hale of New York state.

Hale claimed State Farm led a conspiracy to overturn the judgment, and he sought to recover the full amount, add interest, and triple the damages.

He named State Farm employee William Shepherd and Illinois Civil Justice League director Ed Murnane as defendants.

State Farm moved to dismiss the suit, and District Judge David Herndon denied it.

State Farm petitioned Seventh Circuit appellate judges in Chicago to halt the proceedings, but they denied it.

Last year, after plaintiffs invoked privilege on research documents, State Farm counsel Patrick Cloud asked Williams for an order to produce them.

Cloud wrote that plaintiffs waived work product protection by presenting Wojcieszak and Reece as fact witnesses.

“Plaintiffs’ legal theory is largely based on information allegedly learned by plaintiffs’ counsel through Reece’s, Wojcieszak’s, and Denton’s supposed research and investigation,” he wrote.

He wrote that in the complaint and in submissions to the court, plaintiffs squarely placed at issue what their counsel knew and when they knew it.

Williams quickly denied privilege to documents he classified as public relations, and others he set aside for careful study.

“The court has now completed an exhaustive review,” he wrote on Sept. 28.

Williams wrote that waiver of protection is reserved for unusual situations requiring further disclosure, “in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.”

He wrote that waiver extends to information only if the waiver is intentional, if the disclosed and undisclosed information concern the same subject, and if they ought in fairness to be considered together.

Williams found State Farm passed all three tests.

He wrote that large portions of the documents related to the same subject as the affidavits, generally extending to all aspects of Karmeier’s campaign.

He wrote that he generally eliminated drafts of affidavits, pleadings, strategy discussions of researchers, and duplicate documents.

An Oct. 20 hearing on a discovery dispute is planned.

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Organizations in this Story

State Farm Insurance Co.Robert A. CliffordHeplerBroomIllinois Supreme CourtIllinois Civil Justice League (ICJL)