Listen To This Bull

Allstate Berated by Federal Court!


The Huggins Law Firm caught Allstate red-handed in Federal Court.  Allstate’s lead council did a bad bad thing and the court says he should have known better.  The Federal Court berated Allstate in its Order and forced Allstate to pay attorney’s fees!  Some of you might recognize the name of Allstate’s Council.  😉

The Order is long as hell, so for your entertainment I have boiled it down to the most important (and soap opera-ish) parts.

Here are the rough case facts for this Fire Loss Case:

“The discovery period in this case ended on June 11, 2019. Allstate’s lead counsel, Marvin Dikeman, deposed Plaintiff’s expert, Jeffrey Morrill, the day before the close of discovery on June 10, 2019.

On July 17, 2019, Allstate’s counsel sent Plaintiff an Affidavit signed by Grunedda Vautrain on July 11, 2019 summarizing her observations of the fire at Plaintiff’s house three years earlier on October 4, 2016.

The next day, July 18, 2019, Mr. Dikeman deposed Plaintiff’s expert, Jeffery Morrill, on behalf of Allstate in a different case pending in the Rome Division before Judge Murphy.3 (Ex. C to Mot., Doc. 54-3.)

Plaintiff’s counsel was not present at this deposition as he was not counsel of record in Casey.  (Turner Decl. ¶ 6.)

Mr. Dikeman did not notify Plaintiff’s counsel of Allstate’s intent to depose Mr. Morrill about his expert testimony in this matter outside of Plaintiff’s presence. (Id. ¶ 7.)”

Now for the good parts.  The Court is not amused!

“Rather, counsel used the opportunity as a run around of the discovery process to corner Mr. Morrill with the new Affidavits to test whether they would impact his testimony in this case – all outside Plaintiff’s counsel’s presence and without notice. Mr. Dikeman was aware this case was still pending and awaiting trial and that ex parte communications with testifying experts is improper. (See Morrill Dep., Doc. 32 at 190) (Mr. Dikeman stating in apparent off-hand comment he would be “a little uncomfortable having any sort of ex parte communications” with Mr. Morrill without Plaintiff’s counsel present).

A court has inherent authority “to prohibit or remedy litigation practices which raise ethical concerns or may constitute ethical violations,” such as

improper ex parte communications by an attorney during litigation.

Under the circumstances, it is difficult to fathom why Mr. Dikeman did not inform Plaintiffs’ counsel of his intention to depose Mr. Morrill in Casey about the newly disclosed Affidavits in the instant case.

The Court finds that Mr. Dikeman entirely circumvented the discovery rules when he pursued questioning of Plaintiff’s expert witness about the instant case under the guise of a deposition in another case, outside the presence of Plaintiff’s counsel. Mr. Dikeman is an experienced insurance trial attorney, so the Court cannot chalk this up as an innocent mistake.

Allstate’s counsel failed to conform to appropriate standards of professionalism and ethics by intentionally conducting an ex parte portion of the deposition in Casey designed to provide impeachment material for the instant case.

The Court is deeply troubled by Allstate’s conduct discussed herein as well as Allstate’s representations to this Court in response to the sanctions motion.

Counsel for Allstate, Mr. Dikeman, has conducted himself in a manner not befitting an officer of the court. “It is axiomatic that attorneys owe a duty of candor to the court. Moreover, attorneys also have a duty to deal honestly and fairly with opposing counsel.” See Pesaplastic, C.A. v. Cincinnati Milacron Co.,799 F.2d 1510, 1522 (11th Cir. 1986).

Mr. Dikeman has clearly failed in this regard. The “judicial machinery is dependent upon the full support of all members of the bench and bar. Advocacy does not include ‘game playing.’” Id. at 1522–23; see also Carlucci, 775 F.2d at 1454 (Fay, J., concurring). Conduct such as that engaged in here must not, cannot, and will not be tolerated. This Order thus serves as a warning.

The Court finds there are more appropriate sanctions here than disqualification of counsel.

First, any information relating to and reflecting interviews that Allstate’s agents or expert witness have conducted with Kayla Duffey and Grunedda Vautrain shall be turned over to Plaintiff’s counsel within fifteen (15) days of the date of this Order.

Second, Mr. Morrill shall be permitted to supplement his Rule 26 Report to adequately address the testimony of Kayla Duffey and Grunedda Vautrain and whether or not it impacts his prior opinions. This supplement, if written, shall be provided within forty (40) days of the date of this Order.

Third, a formal admonishment of Allstate’s counsel for his conduct in this matter as described herein should be sufficient to prevent further similar violations by counsel in this Court in connection with this litigation.

Fourth, the Court will require Allstate to pay Plaintiff’s reasonable expenses and attorneys’ fees caused by Allstate’s failure to comply with its discovery obligations, which includes Plaintiff’s request for fees and expenses related to this motion and any costs incurred by Plaintiff as a result of the supplementation of Mr. Morrill’s Rule 26 Report.

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