A recent federal appeals court ruling may offer ammunition to energy business Drummond Co. Inc. in a defamation case against Florida litigation boutique Conrad & Scherer and a former partner there—human rights lawyer Terrence Collingsworth, who has drawn scrutiny for alleged witness payments. But the ruling is only part of a broader legal showdown that Collingsworth indicated on Tuesday he has no plans to abandon.
Earlier this month, the U.S. Court of Appeals for the Eleventh Circuit declined to reconsider a March 23 decision that sided with Drummond in the company’s defamation suit. The company has been pursuing defamation claims since 2011 against Conrad & Scherer and Collingsworth, who left that firm in 2015 and is now based at International Rights Advocates in Washington, D.C.
The Eleventh Circuit decision came as the latest substantive development in a complicated legal dispute that has involved allegations of human rights violations and payouts to former members of the United Self Defense Forces of Colombia, a now-disbanded Colombian paramilitary group that the U.S. government designated a terrorist organization between 2001 and 2014.
Six former paramilitary operatives allegedly received payments from Collingsworth, Conrad & Scherer or intermediaries in the midst of human rights lawsuits against Drummond, according to the Eleventh Circuit.
Those human rights suits, led by Collingsworth on behalf of Colombian nationals, sought to hold Drummond accountable in U.S. court under the Alien Tort Statute. Generally, the suits accused Drummond of paying the paramilitary to provide security near the company’s coal mines in Colombia. The suits alleged that following Drummond’s financial support, the paramilitary group killed innocent locals.
Ultimately, the alien tort cases, which are often difficult for plaintiffs, fizzled out as Drummond racked up rulings that cleared away the Colombians’ claims.
While human rights cases were still ongoing, however, Drummond also filed a defamation lawsuit in Alabama federal court against Conrad & Scherer and Collingsworth. At the heart of the defamation case was a letter that Collingsworth had sent in January 2011 on Conrad & Scherer letterhead to the Dutch government and a Japanese company, accusing Drummond of supporting murderous paramilitary groups.
Seeking to show that the letter’s accusations were false and that Collingsworth and Conrad & Scherer acted with malice, Drummond sought discovery in the defamation case on any potential payments to witnesses lined up to testify in the human rights cases. Collingsworth and Conrad & Scherer initially disclosed payments to three witnesses, which they said were necessary to protect the witnesses’ safety. But as the defamation suit wore on, Drummond uncovered evidence that forced Collingsworth to admit to facilitating payments to three additional witnesses, according to the Eleventh Circuit.
In light of that development, U.S. District Judge R. David Proctor in Alabama found in December 2015 that Drummond could invoke the crime-fraud exception to lawyer-client privilege and force Conrad & Scherer and Collingsworth to disclose documents about witness payments. Proctor’s ruling came down hard on Collingsworth and compared the case to a John Grisham novel.
Still, while Proctor ruled that Drummond had made a “prima facie” showing that the crime-fraud exception should be applied, the judge also noted that he was not ruling on the merits of whether the witness payments were legal or appropriate. The Eleventh Circuit’s ruling from March affirmed Proctor’s decision.
In the past, Collingsworth has maintained that, because witnesses in these types of human rights cases often testify against dangerous groups, they are sometimes paid for relocation or other security measures. Responding to questions via email on Tuesday, Collingsworth further reiterated his stance with respect to payments of Colombian witnesses.
“Absolutely it is my position that the payments made to protect witnesses and their families were necessary to keep them alive and entirely appropriate, not only legally and ethically, but morally,” Collingsworth said. “After pages and pages of very gratuitous speculation about my motives … Judge Proctor’s Dec. 7, 2015 opinion states … ‘The court need not decide at this stage of the proceedings whether payments to witnesses were lawful, appropriate, or warranted.’ We are confident when that determination is made, we will prevail.”
He added, “The Eleventh Circuit’s ruling does nothing but allow the argument to continue as to whether the payments were legitimate, an argument we will win.”
Collingsworth also criticized Drummond’s tactics in the defamation lawsuit and said he plans to launch another suit soon that further accuses Drummond of wrongdoing in Colombia.
“While they have well-served Drummond’s purpose in draining my time and resources in responding, these suits are frivolous on the merits,” he said. “We will soon be filing our own RICO case against Drummond for its role in profiting from war crimes in Colombia and covering up their criminal activity through bribes and threats against potential witnesses.”
A lawyer representing Drummond in the defamation case, H. Thomas Wells III of Starnes Davis Florie in Birmingham, Alabama, did not immediately respond to a request for comment on Tuesday, nor did an outside lawyer for Conrad & Scherer, Robert Spotswood of Birmingham’s Spotswood Sansom & Sansbury.