Tuesday, August 30, 2011
In a recent order (available here) a federal judge in Austin set a hearing on a motion to quash a subpoena to a third party. What makes the order unusual is that the court styles the upcoming hearing as a "kindergarten party" and also as "an advanced seminar on not wasting the time of a busy federal judge and his staff." Discovery disputes are often petty, and this can be especially true of third-party discovery disputes. But this order seems particularly harsh.
The document, as written, would be plainly inappropriate if a litigant filed it. And while it is the federal court's prerogative to draft orders in the language it chooses, does that latitude extend as far as this order? Should federal courts set the tone for civil and respectful writing through their own conduct in court? Or are attorneys fair game when they engage in gamesmanship? When I was in practice, some discovery disputes were so ridiculous that they deserved a smack down. This order definitely qualifies as a bench slap by every available measure.
UPDATE: Someone just forwarded a document that appears to be the motion to quash (available here) that triggered the order I describe above. Worthy of a bench slap? You be the judge.