Texas v. Arkansas:

An amusing discovery order from yesterday; thanks to Michael Barclay for the pointer.

BruceM (mail) (www):
Ugh, sports references are so freakin' lame. Especially in court pleadings/orders.
6.4.2008 11:17pm
Soronel Haetir (mail):
Sigh, they didn't format this order in such a way that my TTS software can read it to me. Is there anything actually good in it?
6.4.2008 11:24pm
Keith in Dallas (mail):
As a UT alumnus, I must say that this is 1) awesome and 2) accurate. Hook'em!
6.4.2008 11:33pm
Raffi (mail) (www):
Inputting the address in google gets you this picture. Cool!
6.5.2008 12:02am
6.5.2008 12:11am
John (mail):
Talk about splitting the baby...
6.5.2008 12:46am
BruceM (mail) (www):
I'm a UT alumnus too, and I still hate college football. Proud to say I spent 4 years at UT in Austin and never attended a single football game. The fact that it's not an air-conditioned stadium was not even my primary reason for avoiding it.
6.5.2008 1:58am
Ted Frank (www):
So because the judge wanted to be cute, he's drafted a sloppy order that's going to be impossible to comply with, since the parties cannot agree to hold a deposition in San Antonio but remain on separate state lines. It's not even clear the Texarkana courthouse has a conference room on the state line--the two courtrooms are on separate sides of the state border. (Interestingly, the Federal Courts Improvement Bill of 2004 permits E.D. Tex. cases to be heard in the Arkansas courtroom and vice versa for W.D.Ark. cases).
6.5.2008 7:25am
Philistine (mail):

It's not even clear the Texarkana courthouse has a conference room on the state line.

Actually, the Order is that the deposition take place on the Courthouse steps.

This is pretty clearly an Order to say--decide among yourselves on these issues and stop wasting the Court's time.

6.5.2008 7:46am
Bill Dyer (mail) (www):
I foresee a mandamus action: The order fails to address, one way or the other, whether (a) the corporate representative may wear a red plastic hog hat, or (b) whether "Sooooo-EEEEEEEY ... PIG!" shall be construed to be a valid objection to the form of the question.

Mandamus being to the Fifth rather than the Eighth Circuit, however, the answers will be "no" and "no."
6.5.2008 10:22am
PatHMV (mail) (www):
The Google Map for 500 State Line, Texarkana, AR/TX. Putting in either AR or TX for the state in the address does indeed point to the same spot.

And I agree with Philistine. This was an order telling the parties to stop wasting the court's time and work this out themselves.
6.5.2008 10:44am
cjwynes (mail):
In what bizarro world could it even be jokingly suggested that the SEC football conference is "safer pastures" than the old SWC? Did Arkansas "retreat" from such football powerhouses as Rice, Baylor, SMU, Texas Christian and Houston?

Perhaps he meant the SEC was "safer pasture" in that, unlike the SWC, it wasn't perpetually plagued with recruiting scandals.
6.5.2008 12:13pm
sdao (mail):
The next time somebody starts to whine about how overworked judges are - point them to this decision which demonstrates that at least one judge has far too much time on his hands.
6.5.2008 1:10pm
woo pig (mail):
Hmm... sneaky Texas fan Bill Dyer got the Arkansas cheer backwards. The proper way to call the hogs is:

Woooooooooo, Pig ! Sooie!
Woooooooooo, Pig ! Sooie!
Woooooooooo, Pig ! Sooie!
6.5.2008 3:58pm
Bill Dyer (mail) (www):
Mistake acknowledged and lamented. It's been too many years since I was in Fayetteville in my orange Longhorn Band uniform, watching Earl Campbell and #2 Texas beat #9 Arkansas 13-9. Steve Little tied the NCAA record that Texas' Russell Erxleben had set earlier that season with a 67 yard field goal, but Earl Campbell -- uncharacteristically held without at TD in this, his senior and Heisman-winning season -- played in the interior defensive line to help stuff a 2-point conversion attempt. Not quite the Game of the Century (although my older brother was in the LHB for that one in 1969), but a heckuva game en route to an undefeated UT regular season.
6.5.2008 5:03pm
DiverDan (mail):

This is pretty clearly an Order to say--decide among yourselves on these issues and stop wasting the Court's time.

I agree completely with Philistine that this is exactly what the Court was saying. However, what the Court SHOULD HAVE DONE was FOLLOW THE LAW.
Controlling 5th Circuit precedent clearly states that it is "well settled" that "the deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business." This is "especially [so] . . . when the corporation is the Defendant." See Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979). Salter is still good law in the 5th Circuit, and is binding on the Western District of Texas. If the Texas plaintiff wanted to take the deposition of Wal-Mart's officers or directors (who resided in and worked from Bentonville, Arkansas), then the Defendants were entitled to a protective order under FRCP 26(c)(2) requiring the Depos be taken in Bentonville. Some of you may find this Order amusing, but Federal Judges that refuse to do their jobs in the face of an unreasonable Plaintiff's lawyer, and that fail to follow controlling precedent PISS ME OFF.
6.5.2008 8:27pm
Bill Dyer (mail) (www):
DiverDan: "Ordinarily" is the key word there, and what constitutes "ordinarily" is within the discretion of the trial judge. I'm familiar with this one; he's well seasoned. We can't tell from the order anything much about the case, but it's certainly impossible to conclude from the face of it that he's abused his discretion. You're presuming that Wal-Mart is being pushed around as a big target defendant. But Wal-Mart has some considerable history, I note, of being less than cooperative in state and federal court discovery proceedings; the trial judge presumably knows how it's behaved, or misbehaved, in the case before him, while you and I don't. Moreover, having two sets of Texas lawyers travel to Bentonville instead of one Arkansan travel to Austin is almost certainly an economic waste, which is why many defense lawyers would agree to have the corporate rep travel (unless they're under instructions from their client to be hard-asses as a matter of principle.) Save your indignation, I'd suggest, for a case that more clearly deserves it, and enjoy the whimsy.
6.6.2008 1:32am
Too late:
Good! Takes care of sanctions against stupid and arrogant lawyers at the same time.
6.6.2008 8:22am
DiverDan (mail):
Bill Dyer, if you look at the 5th Circuit cases that rely on Salter v. Upjohn, you'll see that "ordinarily" has been interpreted to mean "absent really extraordinary circumstances", and that saving travel costs is NOT an issue that trumps this rule. The Salter rule has been adopted in several other circuits, and several of those cases make the point that when a Plaintiff, who had the choice of forum in the first place, wants to depose the executive officers of a corporate defendant, the Plaintiff should always be required to take the deposition at the location where those executive officers reside and work; if cost is really an issue, the Court can order a remote deposition (telephonic, or by video conference) under Rule 26(c)(2). As to cost, what makes you think that setting up a Court Reporter and conference table on the Courthouse steps in Texarkana (which creates its own problems, making an otherwise private deposition a public spectacle), and the travel costs for BOTH sets of Austin attorneys to travel to Texarkana (about a 6-1/2 hour drive from Austin), as well as Wal-Mart's travel expenses in traveling from Bentonville to Texarkana, is going to be materially less that taking the Depo in Bentonville? As to Wal-Mart's alleged history of being uncooperative, has it occurred to you that Wal-Mart simply refuses to bend over for unreasonable and obstinate Plaintiffs' lawyers? In this case, regardless of how uncooperative Wal-Mart has been on other discovery matters (the Judge has the authority to deal with those instances as they arise), that is no excuse for Judge Nowlin to simply ignore controlling precedent when the Plaintiff's attorney seeks to depose executive officers who live and work in Bentonville - especially when the Depos are almost certainly scheduled for no more than a tangential issue in the case (from the style, it looks like a PI case of some sort, maybe slip and fall, maybe products liability [hence Stanley being a co-defendant], and Plaintiff's counsel will likely ask the executive officers about Wal-Mart's corporate policies in dealing with similar situations). Using this opportunity to punish Wal-Mart for any past perceived failures in discovery was just wrong.

Now, if the Depo Notice at issue was a Rule 30(b)(6) notice, and the most appropriate corporate representatives were all local -- store managers, regional officers, etc. then the Court should have simply stated as much and required them to appear in Austin for the Depo.

The whole notion of ordering the Depo to take place in Texarkana on the Courthouse Steps, and the Judge using his official office to gig Wal-Mart over a Texas-Arkansas collegiate football rivaly, is just wrong. If the Judge wants to be amusing, cute, or humorous, he ought to do it on his own time, or at the very least, in a way that doesn't make a litigant pay the costs for his jest at the expense of his refusal to follow the law.
6.6.2008 9:08am
Bill Dyer (mail) (www):
DiverDan: You're in a particularly humorless mood, I'd suggest.

This depo will only happen on the courthouse steps of Texarkana if both sets of lawyers are also humorless, and dweebs as well. If they can't read the sub-text — in which the judge is admonishing both sides to be more professional and work out a compromise on their own — then they're in the wrong profession.

The fact remains that you know nothing about the rest of the case, and have no factual basis to conclude that Judge Nowlin abused his discretion. But Wal-Mart and its counsel presumably do, and they certainly have the resources to pursue a mandamus action in the Fifth Circuit if they so choose.

But only a tiny fraction of good sense in the courthouse comes from casebooks, my friend. And the lawyers who haven't figured that out are universally the ones who are hardest to deal with. (I say this as a practicing lawyer who has represented both plaintiffs and defendants, individuals and corporations, in state and federal court for 28 years, and who hasn't had to make or oppose a motion like this since some time in Reagan's first term.)
6.6.2008 12:01pm
DiverDan (mail):
Alright, Bill Dyer, I am being a bit humorless about this. And you do have the edge on me on experience, I've only been practicing for 26 years, and only in litigation (mostly in Bankruptcy and Federal Court; State courts when I can't avoid it) for about 20 years, and I've only had to file one motion like this one in those 20 years. Most times I can get the other side's agreement by just showing them the case law. And you were quite right, at the time I wrote my earlier posts, I knew nothing about the rest of the case, so my conclusion that Judge Nowlin abused his discretion was only speculation, but speculation guided by experience. I went ahead and checked on the case on PACER, and found that it was a wrongful death action, for injuries to an 88 year old man who allegedly was knocked over when the sliding entry door, which was activated by a motion sensor, closed on him. Stanley Works, Walmart's co-defendant, was the manufacturer of the door. The Notice of Deposition directed to Walmart asked for the corporate representative knowledgeable about the contracts to purchase and install Stanley Works sliding doors in Walmart's stores, and Walmart's representative, the executive in the Real Estate Department responsible for those matters, lived and worked in Bentonville, Arkansas. Walmart's Motion for Protective Order was filed on May 29, a Thursday (Docket No. 25, still very early in the case), and cited Salton v. Upjohn, as well as several District Court cases both within and without the 5th Circuit which followed and explained Salter v. Upjohn. Judge Knowlin ruled on June 3, the Tuesday after the Motion was filed, without the benefit of any opposition filed by the Plaintiff which might explain why the Rule in Salton v. Upjohn should not apply, and without the benefit of any hearing. Given the jocular tone of his Order, and the fact that he didn't wait for a responsive pleading, or even bother to explain why he wouldn't follow the 5th Circuit rule in this case, it is apparent that Judge Nowlin was much more interested in making a joke than applying the law, so yes, I think my earlier conclusion that he abused his discretion is confirmed.

I am not always so humorless, I love a good joke - even in a judicial opinion (Scalia often makes me laugh out loud), if the joke isn't made at the expense of an undeserving litigant and at the cost of simply ignoring the law. And I understand very well that not all common sense in the courtroom comes from case law, rules or statutes. But Judges need to understand that their first duty is always to the law, and the only way to treat litigants fairly is to consistently follow the law, or, failing that, carefully explain why it doesn't apply to the case at hand. Judge Nowlin forgot that in this case, he decided to make a joke simply because Walmart refused to give in to an unreasonable request by the Plaintiff's counsel; he certainly doesn't deserve any praise for that.

Too many times have I had to explain to a client that judges sometimes just refuse to follow the law, even when it is clear, and sometimes your only recourse is an expensive appeal or mandamus action which simply isn't cost effective. Forgive me if I don't find it funny when another lawyer has to give that explanation to his client.
6.6.2008 2:01pm