Massively overbroad discovery demands are among the most common abuses in civil litigation, and it’s hard to get judges or policymakers to take seriously the harm they do. But the City of Houston, represented by litigators at Susman Godfrey, may have tested the limits when it responded to a lawsuit against the city by a church-allied group by subpoenaing the pastors’ sermons along with all their other communications. [KTRK, Houston Chronicle; text of subpoena request; motion to quash] The city has already backed off in part, saying it will narrow the demands to focus on the issue of whether the plaintiffs were aware of petition procedures. [Jacob Gershman, WSJ]
Eugene Volokh has a useful analysis (more) of how churches, like reporters, do have some additional First Amendment protections against being asked to disclose just anything. But a way to protect litigants and third parties more systemically would be to narrow the scope of discovery generally (e.g. to information relevant to the actual claims and defenses in the suit) and shift more burdens of cost and proof to the demanders’ side.
I hope the city is shamed into calling off the fishing expedition entirely. That having been said, I find it fascinating that so much of the coverage in the conservative press downplays or omits the fact of the ongoing litigation (Todd Starnes buries it in paragraph 8, and Ted Cruz’s statement never even mentions it) thus leaving many readers with the impression that the city is using police or administrative powers to demand the information, which would pose an entirely different set of challenges for public liberty.
[Title updated 9 a.m.]
P.S.: This contentious courtroom dispute may previously have featured troublingly broad discovery demands from the other side, if one accepts as valid the comments of “Mike in Houston” at Stephen Miller’s post: “there’s no mention of the subpoenas coming from the anti-HERO side that have targeted a whole range of city employees, private citizens, nonprofits and pastors who spoke out in favor of the ordinance (and assisted with the pro-HERO organization efforts.)” Yet more: Sarah Posner, Religion Dispatches (various liberals, moderates, church-state separationists, and pro-LGBT figures critical of requests’ overbreadth).
Revelations that a single senior Houston police officer served on at least ten grand juries have been an eye-opener to those who might have assumed that the grand jury as constituted in Harris County (Houston) was random or representative in its composition. Radley Balko:
…critics allege that the “key-man” system that many Harris County judges use to pick grand jurors selects for law enforcement officials and their friends, family, and acquaintances. Critics say it’s too easily manipulated, and results in grand juries continually picked from the same pool of people — cops, retired cops, friends and family of cops, and older, whiter, wealthier, more conservative people who both have the time and money to serve, and are familiar enough with the system to even know to volunteer to serve on a grand jury in the first place.
Adding to the problem, grand jury members are invited to go on police ride-alongs, are given free time at police shooting ranges, and are invited to participate in 3D shooting simulators designed to make them empathetic with police officers. Those same grand jurors are then asked to assess the validity and credibility of the police officers who testify before them, not just in routine investigations, but in investigations of the killing of police officers, alleged abuse by police officers, police shootings, or police corruption.
It’s being led by our perennial-favorite state-AG mentionee (D-Miss.)
Meanwhile: Houston judge reported to have issued what law professor Josh Blackman calls “blatantly unconstitutional” gag order requiring Google not only to remove all records of certain allegations against an individual, but also to refrain from discussing the gag order itself [Houston Chronicle]
It’s no longer a specifically enumerated crime to do that on the streets of Houston in an annoying or flirtatious way [Volokh]
Another survey of late-night TV lawyer ads, this time by 99 Percent Invisible at Slate “The Eye”, and some, like “We’ll Change Your Pain Into Rain,” previously unseen by us. Audio podcast (21:04) here:
And Above the Law highlights this very…. unusual video by an intellectual property lawyer in Houston:
Someone must have deactivated the Dallas Morning News’s B.S. detectors [Amy Alkon] The paper’s editors uncritically cheer new proposals from Texas Sen. John Cornyn and Rep. Ted Poe for legal changes including wider use of forfeiture and more draconian sentences for johns. More: “There have been two compelling-prostitution cases filed in Harris County this year. Not 300,000. Two.” [Mark Bennett] Yet more: the paper corrected 11/24.
A former Houston Texans punter “alleges that [Reliant] Stadium’s practice of piecing together 1,200, 8?x8? palettes of grass prior to every home game creates an ‘unsafe turf’ condition,” resulting in a torn ligament and bone fracture. At Abnormal Use, Nick Farr says we haven’t heard a whole lot about turf seams as a playing field hazard up to now, and notes that the player in question may have had some other difficulties going on with his career aside from this “career-threatening injury.”
“Two Houston adult entertainment clubs this week agreed to settle a federal age discrimination case with a former waitress who alleged younger, male managers called her ‘old’ and said she showed symptoms of memory loss. The owners of Centerfolds and Cover Girls agreed to pay $60,000 to Mary Bassi. She was 56 when she was fired in 2006 ‘without provocation or explanation,’ according to a lawsuit the U.S. Equal Employment Opportunity Commission filed on Bassi’s behalf.” [Houston Chronicle; earlier]
And now someone must pay [The Smoking Gun]
More: Jon Coppelman consults Ogletree’s “settlement calculator”.
A Texas DWI lawyer speaks incautiously to the press, and fun ensues [Houston Press, Above the Law, Defending People and more]
Because without some sort of barriers to entry, how are you supposed to make the really big bucks? [Antiplanner via Coyote]
According to the Equal Employment Opportunity Commission, Mary Bassi was 56 when she was allegedly subjected to age-based discrimination at the Cover Girls club where she waited tables. “According to the lawsuit, which was filed last week in federal court, she was frequently called ‘old’ by managers and endured comments about experiencing menopause and showing signs of Alzheimer’s disease.” Younger waitresses were also given shifts that Bassi had customarily worked. An EEOC lawyer says Bassi had been a successful waitress and is now working in that capacity for a competitive club; Cover Girls burned down in 2007 and has not been rebuilt. [Houston Chronicle via Tim Eavenson; Richard Connelly, Houston Press "Hair Balls"] We’ve covered earlier age-bias complaints by exotic dancers themselves (as opposed to support staff) in 2000 and last year (both in Ontario, Canada).
59-year-old Melinda Herrick, an art teacher who had been a Teacher of the Year honoree in the Houston schools, was charged with violating the “drug-free zone” law after cops found two Xanax pills in her car; the drug is often prescribed for panic disorder. Herrick protested that the car had been in the shop for repairs for more than a month before the incident; her daughter also drove the car. Students rallied on her behalf and the charges were finally dropped after she underwent a drug test which indicated that she did not use drugs. [Houston Chronicle via Obscure Store]
“An insurance company with a potential $25 million liability from a fatal 2007 Houston office fire announced [Jan. 21] that it will drop its legal argument” that it shouldn’t have to pay for smoke inhalation deaths because they supposedly resulted from “pollution”, a risk excluded under the policy, as opposed to the actual flames. [Houston Chronicle; earlier].
“An insurance company with a potential $25 million liability from a 2007 Houston office fire is claiming smoke that killed three people was ‘pollution’ and surviving families shouldn’t be compensated for their losses since the deaths were not caused directly by the actual flames. Great American Insurance Company is arguing in a Houston federal court that the section of the insurance policy that excludes payments for pollution — like discharges or seepage that require cleanup — would also exclude payouts for damages, including deaths, caused by smoke, or pollution, that results from a fire.” (Mary Flood, “Insurance loophole claimed in fire deaths”, Houston Chronicle, Dec. 17).