Closing The Loop

Judge Fred Biery is fed up with discovery gamesmanship. A U.S. District Judge in the Western District of Texas, Biery recently issued a status conference order touching on the scope of discovery in a trade secrets dispute between HouseCanary, a real estate analytics company, and Quicken Loans, the nation's largest mortgage lender.

The order is more notable for its rhetorical touches than its substance, however, inspiring headlines such as “Federal Judge Wants Ted Boutrous to Make Out With Plaintiff’s Counsel in Front of the Alamo.”


The 'e' in eDiscovery Does Not Stand for Elementary School

That headline, from Above the Law, is only slightly over the top. “Although the Court expects vigorous advocacy and does not expect counsel to hold hands and sing Kumbaya,” Judge Biery writes, “the consequences of unprofessional conduct or acerbic shrillness in the pleadings can also include revocation of pro hac vice privileges, sitting in timeout in the rotunda of the courthouse and opposing counsel kissing each other on the lips in front of the Alamo with cameras present.”

The kissing, the judge notes, is the only of the three sanctions yet to be imposed.

Judge Biery's order begins by quoting Elvis Presley: “Truth is like the sun. You can shut it out for a time, but it ain’t going away.”

But that liberal view of disclosure, it seems, might not be embraced by all counsel in the dispute. The trade secrets litigation has been long running, the court notes, with a related dispute in the Northern District of California and a recent $706 million win for HouseCanary against a Quicken affiliate in Texas state court.

To the extent that even more discovery will be needed in this case, the court set forth six points to guide counsel going forward. Among them, “There will be no Rambo tactics or other forms of elementary school behavior. Simply put: Do not play games.”


Familiar Frustrations, Uniquely Expressed

Judge Biery is not unique in his frustration with counsel during the discovery process. Last year, for example, Judge Mark W. Bennett, of the Northern District of Iowa, chastised counsel, in ALL CAPS, for relying on boilerplate discovery objections, threatening “substantial sanctions”.

Similarly, in his exhortation that counsel “Make time for earspace, i.e. talking and listening as opposed to texting and emailing,” Judge Biery echoes advice recently given by Magistrate Judge Jeffrey Cole of the Northern District of Illinois. In an interview with Logikcull, Judge Cole noted that:

I've tried to explain to lawyers to talk with each other early on in the case and not to write these interminable emails that go on for ten, fifteen, twenty pages about their disputes. Rather, just pick up the phone and talk with each other. Lawyers like writing emails that always tend to be disputatious and confrontational. Judges don’t like them and tend to be unwilling to spend the time that is needed to try to reconstruct the months that underlay the wrangling. So I tell people to talk. But I must confess, my pleas are often ignored.

And Judge Biery is not unique in positing that the growth in the bar has led to increased incivility among lawyers. Not long ago, he writes, “the San Antonio litigation legal community consisted of about 300 lawyers who knew each other on a professional and social level, some of whom are quite capable of trying these kinds of cases and whose handshake agreements were kept, making court orders often unnecessary.”

Of course, if Judge Biery’s frustrations are commonly shared by the bench, his way of expressing them is unique. Along with the creative sanctions, Rambo referencing, and cutting footnotes, Judge Biery includes several images befitting today’s meme-saturated era.

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The above illustration of counsel immigrating to Texas, for example, is accompanied by a quote from “old school San Antonio lawyer” Hobart Huson, Jr.: “Texans, you are guarding the wrong river.”

The full order, just seven pages long, is certainly a brief, engaging read. You can download a copy of it here.

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