Judge Mills’ order to compel Scruggs to be deposed by Monday, February 4, 2008 at 5:00 p.m. can be found here.

A quick read yields a pretty clear understanding that this was a slam dunk for State Farm and a major blow to Mississippi Attorney General Jim Hood.

The court would initially note that it is strongly disinclined to issue any rulings which
might constrain Judge Bramlette’s ability to decide the jurisdictional and substantive merits of
this case. Judge Bramlette has far greater familiarity with the instant case than this court, and
this court’s sole role relates, to reiterate, to a single deposition. In his motion, Scruggs invites
this court to conclude that his deposition should be quashed because federal jurisdiction is
lacking pursuant to the Younger abstention doctrine. Judge Bramlette has not abstained from
hearing the instant case, however, and this court will not pre-empt his consideration of these
issues by concluding, on its own motion, that abstention is proper under Younger.

The court would also take this opportunity to note the limited nature of State Farm’s
motion, which seeks only Scruggs’s appearance at his deposition. All parties appear to
anticipate that, if his deposition is permitted to go forward, Scruggs will exercise his Fifth
Amendment privilege against self-incrimination. State Farm is not seeking to obtain an order
compelling Scruggs to provide actual testimony in his deposition; to the contrary, it appears
content to allow Scruggs to assert his Fifth Amendment privilege. It seems clear that State Farm
will then seek to utilize Fifth Circuit authority which permits, in certain circumstances, a
negative inference to be drawn against a civil litigant based upon the fact that a non-party has
exercised his Fifth Amendment privilege. F.D.I.C. v. Fidelity & Deposit Co. of Maryland, 45
F.3d 969, 977 (5th Cir. 1995).

Given the limited nature of State Farm’s motion, the court will permit Scruggs’s
deposition to go forward, and he may exercise his Fifth Amendment privilege if he so chooses.
Judge Bramlette is the appropriate judge to determine the weight, if any, to be given to this fact.
Indeed, it is unclear to this court what prejudice might be suffered by Scruggs and/or Hood in this
regard which might not subsequently be cured by Judge Bramlette at the February 6 hearing. On
the other hand, quashing Scruggs’s deposition at this point would arguably preclude State Farm
from even raising this issue before Judge Bramlette. Hood submits that a stipulation that Scruggs
would exercise his Fifth Amendment privilege would suffice to establish a record in this regard,
but this is not necessarily true. Indeed, State Farm has submitted authority which suggests that
blanket invocations of privilege may not be sufficiently specific to permit any negative inference
to be drawn therefrom in subsequent civil proceedings.