Whatever one thinks of Remington’s liability for marketing the gun used to murder 20 six- and seven-year-old Sandy Hook elementary students and six adults, we should all be able to agree as lawyers that this is some seriously f**ked-up discovery.
Remington is being sued by the families of five of those children and four of the adult victims have filed a wrongful death action against the gun manufacturer for recklessly marketing its AR-15 offering. It’s a bold legal theory and one that frankly probably won’t work with proximate causation being as narrowly construed as it is. Despite seemingly having traditional legal theories on their side, Remington’s attorneys — Day Pitney — have a little discovery request that they apparently believe is likely to result in the production of evidence relevant to the underlying claims or defenses. To wit, they “subpoenaed the academic, attendance and disciplinary records for five slain students.” And also the employment records of the adults.
Once you get over the initial horror of this request in a lawsuit about marketing campaigns, take a second to consider the rationale of Remington’s lawyers — because they haven’t offered one as yet. As I see it, there are two reasons to request the disciplinary records of murdered children and both of them are entirely messed up.
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One, Remington is going with some “he’s no angel” defense as is de rigueur whenever a child is gunned down these days. Like they’re trying to build the case that these were the sort of kids that wouldn’t follow safety instructions when a madman hopped up on the Rambo imagery of the gun industry’s marketing campaign decided to go on a killing spree. Which is particularly loony considering the death toll beyond the plaintiffs because the argument would have to be that 26 people — mostly children — were all negligent in their own deaths thereby relieving Remington of liability even if its marketing proximately caused the shooter to show up at school that day. What is the argument? “Exhibit A: Timmy never slept all the way through nap time”?
Two — and frankly more horrifying — Remington’s lawyers are prepared to go full red pill and argue that Sandy Hook is a false flag operation and that these students never actually existed. Putting aside the absolute monster of a person a lawyer would have to be to go down this road, it also makes no sense even within the internal logic of the conspiracy theory. Do these people think that a shadowy entity willing to create an elaborate “illusion” of human carnage would just sleep on building a fully realized backstory of false records? The Alex Jones-influenced numbskulls think there’s simultaneously a conspiracy so elegantly pulled off that only they can see it and that the people pulling the wool over the eyes of the rest of the world are so sloppy that they’d make it easy enough to unravel with a Cracker Jack decoder ring. Say what you will about “John Rockefeller was part of the Illuminati,” at least it makes internal sense.
And that’s it. I can’t even begin to think of a third possible reason why Remington would need these records in a case about its marketing. Neither can the plaintiffs’ attorneys:
Koskoff said there was “no explanation” for the decision by Remington to seek the records. “The records cannot possibly excuse Remington’s egregious marketing conduct, or be of any assistance in estimating the catastrophic damages in this case,” he said, according to the Post. “The only relevant part of their attendance records is that they were at their desks on December 14, 2012.”
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The subpoena, signed by Day Pitney’s Jim Rotondo, is available here (Exhibit C, attached to the plaintiffs’ motion to expand the protective order to cover the request).
UPDATE: All right, yesterday was hectic and I totally blanked out on this. There is ONE other reason for this which is just as morally repugnant. They may be setting up a “future earnings” argument, basically arguing that little Johnny pushed someone on the playground and therefore couldn’t become a millionaire (even though that’s entirely the profile of an I-banker).
Gun-Maker Sued In Sandy Hook Shooting Wants The School Records Of Slain Children [NPR]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.