Benchslaps

Justice Kennedy says: 'Open Sesame.'

It’s late May, so we’re entering the home stretch of the Supreme Court Term. Over the next few weeks, the Court will be handing down opinions in the most contentious, closely divided cases.

One such opinion came down today: Brown v. Plata (formerly Schwarzenegger v. Plata). In this high-profile case, a three-judge district court issued an order that directed the State of California to reduce its prison population — e.g., by releasing prisoners (as many as 46,000, at the time of the order) — in order to address problems with overcrowding and poor health care for inmates.

When SCOTUS granted cert, I thought that it did so in order to summarily reverse. Federal judges running penal institutions, ordering tens of thousands of convicted criminals to be let out onto the streets? The district court’s order reeked of the kind of Ninth Circuit liberal activism that doesn’t sit well with the Roberts Court. (Note that one of the members of the three-judge panel was the notoriously left-wing Judge Stephen Reinhardt.)

Well, I was wrong. The Court just affirmed, 5-4, in an opinion by (who else?) Justice Anthony Kennedy.

There were two dissents, by Justices Antonin Scalia and Samuel Alito. Justice Scalia’s opinion in particular contains some stinging (but ultimately ineffectual) benchslaps….

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If you read a lot of e-discovery articles — and I know y’all do — you know that judges are quickly losing any patience for attorneys who don’t have their act together during e-discovery (or even regular old discovery).

I know that nothing about the process is simple or easy. I know e-discovery is expensive and time-consuming and involves complex computer programs that most people don’t understand. But seriously, everyone needs to hurry up and figure this stuff out.

Otherwise you might end up like the attorneys for the city of Washington, D.C., who got benchslapped so hard on Monday that they won’t be able to see straight for a week.

Read on to learn about what Chief Judge Royce Lamberth (D.D.C.) described as a discovery abuse “so extreme as to be literally unheard of”….

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ALL YOUR DOCS ARE BELONG TO US.

Litigators at large law firms spend an inordinate (and depressing) amount of time on discovery disputes. They bombard poor magistrate judges with motions to compel. They bicker over deposition timing and location. They compile massive privilege logs. They file letter briefs with the court, explaining their entitlement to certain documents that opposing counsel is withholding, without justification.

Partners who work on such matters often say to their associates, “Find me a case in which a judge sanctioned a party for failure to comply with discovery obligations — preferably a case in which the non-compliance is exactly what opposing counsel is doing here, and ideally featuring soaring rhetoric about the importance of following discovery rules.” The associate spends several hours on Westlaw or Lexis, then returns empty-handed; there was nothing quite on-point. There was certainly no soaring rhetoric.

This shouldn’t be surprising. Do you think successful lawyers give up the practice of law in order to keep dealing with discovery-related headaches, for a fraction of what they earned in the private sector? Of course not. Federal district judges prefer to write published opinions about Sexy Constitutional Issues, leaving their magistrates to oversee the discovery playpen. In the rare discovery-related cases that do go up on appeal, federal circuit judges affirm as quickly and summarily as possible, so they can get back to the fun stuff. [FN1]

If you’re a Biglaw litigator searching for a published opinion addressing discovery issues, well, today is your lucky day. Check out this great opinion, just handed down — not by a mere magistrate or district judge, but by the U.S. Court of Appeals for the Tenth Circuit….

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Judge Eric Melgren (D. Kansas)

A trial was scheduled to start in Kansas federal court on June 14, 2011. Defendants moved for a short continuance because one of their lawyers is expecting his first child on July 3. (The lawyer in question, Bryan Erman, is quite cute — check out that chin dimple.)

Plaintiffs’ counsel objected to the continuance — strenuously. This took Judge Eric Melgren by surprise. And not in a good way.

Judge Melgren granted the continuance — and took the opportunity to benchslap the lawyers who refused to consent….

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The Winklevoss twins might be hot -- but their case is not, according to the Ninth Circuit.

If you enjoyed The Social Network, then perhaps you should be grateful to Cameron and Tyler Winklevoss. The lawsuit they filed against Facebook and Facebook’s founder, Mark Zuckerberg, gave rise to excellent entertainment. The movie wouldn’t have been possible without it.

But now the litigation is getting… old. And some people just want the Winklevoss twins to go away. Like three judges on the U.S. Court of Appeals for the Ninth Circuit.

In a ruling handed down today, rejecting the Winklevosses’s effort to overturn an earlier settlement with Facebook and Zuckerberg, the Ninth Circuit dispensed some stinging benchslaps. The opinion contains detailed and erudite analysis of both California contract law and federal securities law, but it can be summarized in four words: “Winklevii, STFU and GTFO.” (Feel free to use that in your headnotes, Westlaw and Lexis.)

Who wrote the opinion? None other than the ever-colorful Chief Judge Alex Kozinski, of course!

Let’s see what His Honor had to say — plus learn about additional Kozinski-related and movie-related news….

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On what basis can one be confident that law schools acquaint students with prosecutors’ unique obligation under Brady? Whittaker told the jury he did not recall covering Brady in his criminal procedure class in law school. Dubelier’s alma mater, like most other law faculties, does not make criminal procedure a required course. [FN21]

[FN21] See Tulane University Law School, Curriculum, http://www.law.tulane.edu (select “Academics”; select “Curriculum”) (as visited Mar. 21, 2011, and in Clerk of Court’s case file).

– Justice Ruth Bader Ginsburg, dissenting, in Connick v. Thompson (via Josh Blackman, who provides additional context and excerpts from the opinions; there’s also discussion of the case at Gawker).

There must be no more of this childish abuse…. No more or there will be sanctions. In more than 29 years as a judge, I have never encountered such bickering, quarrelsome lawyers. You are wasting my time and your clients’ money.

– Judge Richard Posner of the Seventh Circuit, sitting by designation as a district judge (N.D. Ill.), ruling on motions in limine in Chamberlain Group, Inc. v. Lear Corp. (PDF).

(The context of this quotation, which contains additional benchslappery, appears below.)

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Time to put down the gavel and hang up the robe.

We recently covered the Third Circuit’s benchslap of Judge John Fullam, an 89-year-old judge in the Eastern District of Pennsylvania. In his opinion in United States v. Higdon, issuing a writ of mandamus and directing that the case mishandled by Judge Fullam be reassigned on remand, Chief Judge Theodore McKee had some harsh words for the aged jurist: “Neither this court, nor any other court, can tolerate a situation where a judge decides to follow his/her own custom and concepts of justice rather than the precedent of the applicable appellate court or the United States Supreme Court. Ours is a nation of laws, not judges.”

At the same time, Chief Judge McKee had some kind words for Judge Fullam, praising him as “a very experienced and hard working jurist [who] has devoted decades of service to the federal bench.” In the comments to our post, some readers interpreted the combination of statements — criticism for Judge Fullam’s mishandling of one case, but compliments for his “decades of service” — as the Third Circuit trying to nudge Judge Fullam into retirement.

Well, it seems to have worked — and it’s apparently the culmination of a long-running effort to get Judge Fullam off the bench….

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Greco is a menace to his clients and a scofflaw with respect to appellate procedure. The district court may wish to consider whether he should remain a member of its bar. Would-be clients should consider how Greco has treated [his clients] Lee, Washington, and Moore.

– Chief Judge Frank Easterbrook of the Seventh Circuit, benchslapping attorney Michael J. Greco in Lee v. Cook County.

(Additional gems from the opinion — this is just the tip of the iceberg — appear after the jump.)

double red triangle arrows Continue reading “Quote(s) of the Day: Oh, professionalism is overrated.
(Or: Mess with the Easterbrook, you get the horns.)

That decision is as inexplicable as it is unexplained. It is reversed.

– opinion of the Supreme Court in Felkner v. Jackson, benchslapping the Ninth Circuit through a unanimous, per curiam reversal of an unpublished memorandum disposition. (For more context, see Josh Blackman or read the SCOTUS opinion.)

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