Benchslap Of The Day: Just. Produce. The Documents!

on February 21, 2014 at 12:43 PM

Yes, benchslaps are great fun to read about, especially if you enjoy a little schadenfreude. But benchslaps are not fun to receive — and they’re not always justified.

Because of the prestige of judicial office, judges generally get the benefit of the doubt when dishing out benchslaps. But sometimes judges go too far. For example, some observers felt that Judge Richard Posner crossed the line when interrogating a Jones Day partner during a recent Seventh Circuit argument.

This brings us to today’s benchslap — directed at a lawyer for the federal government, no less. It’s harsh, but is it warranted?


Here’s a report from Josh Gerstein of Politico (emphases added to highlight benchslaps):

A federal judge delivered a severe tongue-lashing to a Justice Department lawyer Thursday, slamming the Obama Administration for its handling of demands for government records in the libel lawsuit fired Agriculture Department employee Shirley Sherrod filed against conservative blogger Andrew Breitbart.

During a 40-minute hearing, U.S. District Court Judge Richard Leon repeatedly ripped into the government and DOJ trial counsel David Glass for resisting requests from both sides in the case for government files and e-mails that might be of use in the litigation. At one point, the judge snapped at Glass, ordering him to “sit right down.”

What got Judge Leon so upset? A subject that judges love to discuss, namely, discovery:

At the outset of Thursday’s hearing, Leon lit into Glass for filing a 21-page statement outlining the government’s position [on various discovery requests] — a filing submitted electronically just after midnight Thursday along with a stack of nine exhibits. The judge called it “a self-serving pleading, not requested by anyone” and repeatedly suggested it was filed for “public relations” reasons rather than because it might be useful to the court….

When the lawyer apologized for any offense [caused by the filing], the judge shot back: “It’s not a question of being offended…. I’m questioning your judgment…. It appears you’re doing it for other reasons.”

“We are very frustrated by this discovery,” Glass said, complaining about subpoenas from both Sherrod and a defendant in the case, Breitbart employee Larry O’Connor. “We are fully prepared to move to quash all this discovery if it is not cut back substantially…..It makes absolutely no difference why [she] was appointed to her job or what skeletons she may have in her closet.”

“The documents sought from us are completely irrelevant to this matter,” the DOJ lawyer said, expressing additional frustration that there were now signs the parties might seek deposition of figures like [Agriculture Secretary Tom] Vilsack. “The government has done nothing [connected] to this case, with the sole exception of offering Ms. Sherrod her job back,” Glass said.

You can read the federal government’s status conference memorandum here. Based on my quick skim, it doesn’t strike me as unreasonable. The federal government is not a party to this case, and yet it’s being saddled with all sorts of burdensome discovery requests that, as the filing argues, don’t go to the dispositive issues in the litigation. It seems to me that the parties ought to narrow their requests, so as to reduce the burden on the federal government (i.e., the American taxpayers).

Alas, the parties don’t see it that way:

Attorneys for both Sherrod, O’Connor and Susannah Breitbart [the widow of Andrew Breitbart] all described as baffling the government’s assertion that government records were largely irrelevant to the case.

“These are the people who fired her,” Sherrod lawywer Beth Williams said, adding that her client deserved to know what government officials were saying about her at the time of the firiing and how Andrew Breitbart’s blog posts on the subject influenced them. “This case is about Ms. Sherrod losing her job because the defendants made her look like a racist.”

“The relevance here is indisputable,” O’Connor lawyer Mark Bailen added, claiming that the Justice Department was “presumptuously” deciding what the parties to the case needed.

These comments make the federal government sound unreasonable, since it’s basically being yelled at by the court and both sides of the case. But if you look at the government’s memo, its position doesn’t seem that insane. The government is willing to produce the evidence that is directly relevant to matters actually at issue in the litigation. But as a non-party, it doesn’t want to get dragged into this mess more than necessary. As the memo puts it (citations omitted):

This case is not a complex piece of corporate litigation. It is, instead, a common-law tort action in which all of the parties are individuals and few material facts, if any, are subject to dispute. Despite the relative simplicity of this action, plaintiff and defendant O’Connor have issued extremely broad and burdensome third-party document subpoenas to USDA and EOP that seek, in the aggregate, 83 categories of documents that are irrelevant to this litigation. They have also announced their intention to issue third-party deposition subpoenas to a total of five current officials of USDA and have reserved the right to issue third-party deposition subpoenas to an unlimited number of additional federal officials.

Eighty-three categories of document requests, plus a raft of deposition subpoenas, issued to a third party? This sounds a bit like a fishing expedition to me. All you people want is more more more!

The discovery process is miserable enough for the parties themselves. So please, litigants: treat third parties like Britney. Leave. Them. Alone!

Judge rips feds in Sherrod-Breitbart lawsuit [Politico]
Sherrod v. Breitbart: Status Conference Memorandum of the United States [U.S. District Court for the District of Columbia]

This post was originally published on Breaking Gov sister site Above The Law.