Judge Weill has entered an opinion of over 120 pages outlining discovery that should have been provided by Eaton to Frisby and was not. Phillip Thomas picked up on a report by Allison Grant of the Cleveland Plain Dealer about the opinion and has posted more than once about it.
In the opinion, Judge Weill repeatedly finds Eaton’s conduct either a crime or a fraud on the court. The documents include faxes from DeLaughter’s court administrator to Peters, which showed Peters involvement and his communications with DeLaughter.I’ve worked through and done a chronology of events outlined in the documents, and provided some context from the Jones case (Scruggs I), the Wilson case (Scruggs II), and events about how Peters’ illegal influence of Scruggs came to light. Events I’ve stitched in are indented.
- January to August, 2006 Peters works DeLaughter in the Wilson case at Langston’s behest, with Scruggs as their client.
March, 2006 DeLaughter finds that Eaton’s lawyer made an improper agreement to pay cash to a fact witness and directs a special master to consider discovery violations involved in Eaton’s concealment of the agreement.
December, 2006 Special Master Jack Dunbar issues a report and recommendation concluding that Eaton and its attorneys committed serious intentional discovery violations.
At this point, Eaton hires Ed Peters secretly to work Judge DeLaughter.
In January, 2007, an assistant to Fred Banks at Phelps Dunbar (representing Eaton) accidentally includes Ed Peters name in a email sent to all counsel of record. There is an exchange between Banks and Micheal Schaalman, an out-of-state outside litigation counsel for Eaton, about this email. Opinion at 104
Eaton has argued that Frisby’s lawyers therefore knew about Peters’ involvement from this point and that it was not shielding Peters. This is in spite of evidence that, a couple of months later, Eaton was trying to shield Peters’ involvement, and, as the court notes, Frisby had absolutely no knowledge of Peters’ direct contacts with DeLaughter. Judge Weill repeatedly rejects this argument.
- March, 2007: Peters helps in a prosecution of a man named Middleton whose case was before DeLaughter. This is one of the cases raised in FBI questioning of Peters
March 15, 2007 Peters writes Banks and says that an response by Eaton should be “short & sweet & leaving it to the Jdg, without further action, before they raise the 5th amend issue.” Opinion at 106. On March 20, 2007, Banks asks another lawyer to “put together aa memo… to give Ed some comfort” relating to a motion to compel. Opinion at 107. About both of these emails, Judge Weill writes: “While the communication may not have been an obvious indication of Peters’ ex parte contact t the time it was sent, the Court finds that a reasonable person or attorney knowing all of the circumstances, in 2008 or 2009 and especially now, would find that this document ‘indicates or suggests that Peters or any Eaton-Related Corporations/Persons had any communications with Bobby DeLaughter.” The impropriety of Peters’ knowledge is especially clear when considering the other documents sent by Peters discussing his predictions of DeLaughter’s ruling.” Opinion at 106-107.
March 23, 2007 Peters and Vic Leo, head inhouse litigation counsel for Eaton, exchange emails, where Leo complains about the stay in the case, and Peters responded that he was “REALLY pushing to get the ox out of the ditch” and “mgmt… will be VERY pleased with you.”
As Peters predicted, DeLaughter lifted the stay on April 6, 2007. Opinion at 106-07. A not-yet signed copy of DeLaughter’s order turned up in Ed Peters’ files. Opinion at 120.
- March, 2007: Jones sues Scruggs over Katrina fees
- Early April, 2007: Scruggs meets with Balducci and Patterson, and ex parte contact with Lackey is proposed about the Jones case.
April 7, 2007, Leo writes about Peters’ “intentions to speak with the court administrator and the judge Monday about the trial date. This may take some finessing.” Opinion at 109.
April 12, 2007 Eaton counsel Emily Feinstein writes outside counsel and other team members about shielding Peters’ involvement from the Frisby parties. Opinion at 110.
May 3, 2007 Peters writes Michael Schaalman, Fred Banks, and Rueben Anderson, all Eaton litigation attorneys, about DeLaughter’s April 6th opinion, stating, “We are EXTREMELY, EXTRAORDINARILY, etc, etc, FORTUNATE to have a Judge who can, and does, read and analyze everything the ENEMY ‘chunks’ at us (through him).., pretty much without our help, which he did a fine job of (with your help) on this topic….” Opinion at 110.
- May-August, 2007 Intermitent ex parte contact of Lackey by Balducci
- Late September, 200: Lackey and Balducci begin talking about money
A September 27, 2007 email from outside counsel Schaalman to Peters “represents the most egregious discovery violation perpetuated by Eaton to date” according to the opinion. Schaalman writes Peters, “We need to discuss how either I can win this guy over or how we can convince the judge to appoint a special master.” About a month letter, Judge DeLaughter sua sponte issued an order removing Jack Dunbar and appointing Larry Latham as new special master. Opinion at 56-57. Later, Eaton filed sworn discovery responses that it knew of no conversations between Peters and DeLaughter about removing Jack Dunbar. “Eaton categorically states that it did not instruct, request or suggest that or suggest that Peters engage any such communications with Judge DeLaughter and his staff” and Peters never talked to Eaton or any outside counsel about it. In a decpoistion, Schaalman stated that he never had “any talk with Ed Peters about it would be nice to get rid of Jack Dunbar.” Opinion at 57. “[T]he circumstances of Dunbar’s removal, one month later, coupled with Schaalman’s dishonesty support this Court’s finding of Eaton and its counsels’ furtherance of the fraud perpetrated on the court.” Opinion at 58.
On September 28th, there were emails among various Eaton counsel about the fact that Fred Banks had copied Ed Peters on an email that went to Frisby lawyers. “This is especially significant as the instructions to shield Peters came during the time which Schaalman was expecting Peters to attempt to get DeLaughter to appoint a new special master.” Opinion at 60.
Jack Dunbar wrote all counsel about health problems he was experiencing, and Peters was sent a copy by other Eaton counsel. On October 23rd, Peters responded about this information, “I will use it well.” Six days later, DeLaughter (with no motion from anyone) removed Dunbar. Opinion at 71-72.
- Late October, 2007: The attempted bribery by Balducci takes place in Scruggs I.
On October 24th, Peters contacted Larry Latham about his interest in being a special master. Opinion at 74. On that same day, Schaalman sent Peters Dunbar’s October 23rd report and recommendation, to which Peters responded “got & faxed it”—meaning, apparently, to DeLaughter, who would not have received the report officially before the clerk did on October 25th.
On October 25th, there were emails between Schaalman and Eaton’s former chief litigation counsel about a proposed new scheduling order. This was four days before the judge asked the parties to submit new proposed scheduling orders. Opinion at 77.
On October 29th, DeLaughter removed Dunbar, appointed Latham, and asked the parties for new scheduling orders, all sua sponte. Opinion at 74.
- November 1, 2007: Balducci arrested and becomes a Government witness in Scruggs I.
A November 2nd email the court describes as “one of the most egregious discovery violations….” Eaton’s in house counsel Leo wrote Schaalman, “Why can’t the judge just assign Sept 18th? Why do we need Perry’s agreement.” Schaalman responded: “I hope you mean August 18 and apparently he feels that he assigned to trial to August 4 over the protest of the defendants and is reluctant to move the date which could draw further protest.” Opinion at 79. This shows the fruit of Peters’s ex parte contact with DeLaughter.
- November 29, 2007: Scruggs I prosecution begins to become public.
- December 10, 2007 Langston law office searched; DeLaughter interviewed by FBI
December 11, 2007: Vic Leo’s desk phone notes report Eaton was investigating “after the publication of media reports” about the subpoena issued to Langston Law Firm “seeking documents reflecting payments made to Ed Peters regarding a matter before Judge DeLaughter.” Opinion at 93.
I have serious questions about this one. There were no press reports connecting that search to DeLaughter at the time of the search. If Leo heard such a thing, he did not hear it from the media on the December 11th, or to my knowledge before December 17th. I wonder what he really heard and where he heard it.
- December 11, 2007 Peters interviewed by FBI
- December 17, 2007 Jerry Mitchell goes public that the FBI focus has turned to DeLaughter, Peters, and Wilson v. Scruggs.
- December 20, 2007 Mitchell reports that DeLaughter has a grand jury subpoena
December 20, 2007. Schaalman has a breakfast meeting with Peters. Later he and Eaton claimed Peters was fired at this meeting. Eaton denied in discovery any substantive communications with Peters thereafter. Opinion at 102.
On January 15, 2008, an Eaton lawyer, Sharon O’Flaherty, made some handwritten notes about a telephone conference she had with outside counsel Michael Schaalman. She wrote, “MS seems so corrupt—Do we need to add someone to the team who knows Yerger,” and then, “Ed P. said DeLaughter’s opinions may not be respected by Yerger.” Opinion at 83.
This was the day after Yerger was appointed on the case. Opinion at 84.
I share with Phillip Thomas at Miss. Litigation Review an annoyed reaction to this sanctimony about corruption in Mississippi from folks who are leading corruptors of the courts in Mississippi.
But the real significance here is that Eaton claims to have cut off contact with Peters on December 20, 2007. Yerger did not replace DeLaughter until January; for Peters to opine on this subject, he’d have to have done so after the December 20th “break.” As the opinion notes (at 26), this conversation took place after the allegations about Peters and DeLaughter were known to the public. Oh, and there’s also what the judge calls the “referenc[e to] Eaton’s ongoing practice of trying to improperly influence the court. Opinion at 10 n. 15.
Here’s a copy of the opinion.