For its part, Bayside never articulated any harm it would suffer should the subpoena be quashed. It has offered no facts (evidenced or otherwise) about who Bayside is, what Bayside does, the impact of these alleged infringements on whatever business it is that Bayside conducts, or the importance of pursuing a copyright claim against an anonymous account on Twitter that, until this litigation, had only a few hundred followers. Twitter suggests that Bayside’s silence here is telling. As Twitter articulates above, this subpoena is not a mere steppingstone on the path to an infringement action. The subpoena is itself an end, sending a message to would-be critics that mocking Brian Sheth is a costly endeavor.
On January 7, filed a motion for reconsideration of the order and asking for a new judge. They listed five main points of disagreement with the order by the Magistrate Judge:
The Magistrate Judge erred in issuing an order on a dispositive matter instead of a Report and Recommendation.
The Magistrate Judge erred in holding that the burden of establishing fair use in this context is on the anonymous user targeted by the subpoena at issue.
The Magistrate Judge erred in failing to recognize that the anonymous user’s Tweets constituted fair use.
The Magistrate Judge erred in holding that it could not engage in the balancing of harms required by the prevailing First Amendment standard without evidence submitted by @CallMeMoneyBags.
The Magistrate Judge erred in its balancing of harms required by the prevailing First Amendment standard.
On January 11, the same Magistrate Judge who signed the December 29 order agreed to the reassignment and rehearing. Docket 23
And now there is a call for additional amici briefs as the schedule for going forward is as follows:
• February 18, 2022 – Amicus briefs in support of Twitter due;
• March 11, 2022 – Bayside’s response / opposition due;
• April 4, 2022 – Amicus briefs in support of Bayside or amicus briefs that do not support either party due;
• April 25, 2022 – Twitter’s reply due;
• May 12, 2022 – Hearing.
Each team has about 26 major league players and 116 minor league players (of which 14 are subject to collective bargaining on the "40 man roster"), and a fourteen year contract. There is no job security or actions a player can take to ensure promotion.
About 71.8% earn between $8k-12k a year (April-August).
About 9.9% earn between $12k-$563k a year
About 9.2% earn between $563.5k-1100k a year
About 6.7% earn between $1100k-$10000k a year
About 1.9% earn between $10000k-25000k a year
About 0.5% earn over $25000k a year.
It refers to all three objections. I like this part:
Powell, et al. told Judge Linda V. Parker that the focus of monetary sanctions should be to compensate the government — not to punish them for filing the case. But they also admitted that the law allows punitive sanctions in certain situations:
In Doc 176 Emily Newman also objects to the City of Detroit's lawyers billing for appellate costs. We also get the novel argument that the number of hours the City's lawyers bill for should not exceed the 57.8 hours which the Michigan state attorneys used. And then there's the novel argument that hours spent arguing for sanctions that were awarded were not hours spent toward defending a case.
The sanctions proceedings were not necessary to or a part of the defense of this action. Therefore, time and fees incurred in the sanctions proceedings are not recoverable under the language of the August 25, 2021 Opinion.
Further, Newman finds fault that the annotations and retractions carving up the billing record into three categories of asked-for reimbursement was made “done well after the activity occurred.” as will happen when a billing practice suitable for one purpose is repurposed to a court order which happened months laser.
In Doc 177 L. Lin Wood's attorney also argues against paying for the appeal and the sanctions. Case law is cited that “only those fees which directly resulted from the sanctionable conduct’ should be awarded under Rule 11. But the court has other authority to levy fees. So when addressing the courts other authority, the requested reimbursement wrong under Rule 11 is twisted to be “punitive” and thus ill advised. ha ha!
Lin Wood's attorney tries to argue against the rate, but adopts "median" or "average" as the only "reasonable" rate. Clearly, that is not a reasonable position informed by the experts in statistics.
And so Lin Wood's demand is to limit payment to the City of Detroit to what the state lawyers billed as state employees despite the same economic survey clearly pointing out the private/public wage gap.
At the very end of the attachment to Doc 174, a spreadsheet totals the three categories and it from here the extra $0.50 came from. But if all the numbers are truncated to the whole dollar amount in the ask in paragraph 9, it follows that you can't ask the judge to reduce by that $0.50, already removed.
It didn't have any snark or opinion on the objection, but did point out that the author is lawyer for only Sidney Powell, Julia Haller, Brandon Johnson, Scott Hagerstrom, Howard Kleinhendler, and Gregory Rohl. L. Lin Wood, Emily Newman, and Stefanie Lynn Junttila may yet file something.
On September 8, in an attachment to Doc 174 the lawyers for the City of Detroit list charges which at a discounted rate total to $182,192.
From paragraph 9:
The total hourly charges, at the City's negotiated and then discounted rates, for defending King v Whitmer at the trial court level are $39,999. The total hourly charges related to appellate matters pertaining to King v Whitmer are $26,077. The total hourly charges in King v. Whitmer pertaining to the sanctions motions are $116,116.
Today, two weeks later, the crowd of Sidney Powell and others object in Doc 175 make a reasonable sounding argument that they should not have to pay the $26,077.50 in costs and fees for the appeal -- not in proceedings at this District Court, at least. They also make the unreasonable case that the City of Detroit's bill should not exceed that of the State of Michigan defendants (whose lawyers are public servants).
But even their reasonable side has problems. Where did the $0.50 come from? Presumably they took the base rates of $325, $225 and $75 and reduced them by 10% to $292.50, $202.50 and $67.50 and then multiplied those reduced rates by the hours worked and totaled. But if that is so, it doesn't follow that they are entitled to that last $0.50 if the judge goes strictly by paragraph 9.
On the unreasonable side, they claim that:
Yet the City spent over five times the amount expended by the State Defendants to achieve the same outcomes. ... [The City of Detroit] — especially as in intervenor— should be awarded no more than is awarded the state.
No case law cited.
A reduction is also appropriate because the City misused block billing. There is no prohibition against block billing per se. [citation omitted] But a reduction may be appropriate when block billing makes it difficult to determine whether the time spent on various tasks was reasonable.
But the whole point of these sanctions is that the entire litigation was unreasonable due to actions of the Plaintiffs' lawyers. Moreover, in the cases cited, it was the Court's suspicion of hidden unreasonableness that led to a reduction of 5-10% for block billing. So they need more than to just point out the lawyers spent entire 8 and 11 hour days puzzling over this case.
A reduction is also appropriate because multiple entries are duplicative. [citation omitted] For example:
Four attorneys ... all billed for reviewing the complaint. ECF No. 174-1 ...
Three attorneys ... billed for reading the amended complaint. ECF No. 174-1 ...
Totally reasonable and as the 7 (or so) lawyers on the plaintiff side did not read the complaint and amended complaint with the scrutiny required by their Rule 11 duty, it follows that they are ill equipped to determine how many man-hours are needed to slog through those hundreds of pages.
...
On July 28, 2021, one attorney spent 5.25 hours on tasks including “review and revision of draft Supplemental Brief” while another attorney spent 4 hours on tasks including reviewing and revising the same brief. ...
On August 2, 2021, two attorneys billed for drafting the same brief. ...
Legal billing practices are foreign to me, but the concept of collaboration is not.
Finally, they seem to hit upon a small, certain win only to immediately undermine it:
Some entries are simply unreasonable. For example:
The City asks the Court to award fees for its public-relations efforts: ...
It also asks the Court to award fees for time spent reading the news: ...
If your opponent is contaminating the potential jury pool with their PR efforts, does not one have a professional responsibility to get ahead of Dame Rumor? OK, so perhaps there is no jury pool for a case before a Magistrate Judge, but it would be inconvenient if the anti-democratic (and anti-Democratic) saber-rattling caused unnecessary grief to the City of Detroit.
...
The City seeks compensation for a half hour it supposedly spent reading a motion with three substantive pages (in 14-point font) and a text- only order:
Their own exhibit makes it clear it is 2 items, probably each billed at the minimum increment of 1/4 hour.
The vast majority of the City’s fees—almost two-thirds, excluding appellate fees—arose from its quest for sanctions rather than its opposition to the offensive pleadings. The lopsided nature of the City’s fees is further support for a reduction to no more than requested by the State.
Sadly, I cannot find this reasonable either, because Plaintiffs' lawyers were wrong in so many, many ways. Naturally, taking time out to describe and argue every breach of duty is going to take some time, some research and some real money.
Finally, a reduction is appropriate because the City billed in quarter-hour increments rather than tenths of an hour. Using quarter-hour increments is not prohibited.
Once again, they are not the arbiters of what is reasonable. The City of Detroit contracted for these services and is on the hook for these charges which can only be called unreasonable in the same breath one blames the Plaintiff's attorneys for these expenses.
Part of the reason sanctions were justified is that the claims in the lawsuit could be easily debunked had any of the lawyers had the least bit of intellectual curiosity or attentiveness to their duty to reasonably investigate the claims prior to filing.
How easy, you ask? according to the New York Times even one day would have been enough, even if you were Trump partisans:
According to emails contained in the documents, Zach Parkinson, then the [Trump] campaign’s deputy director of communications, reached out to subordinates on Nov. 13 asking them to “substantiate or debunk” several matters concerning Dominion. The next day, the emails show, Mr. Parkinson received a copy of a memo cobbled together by his staff from what largely appear to be news articles and public fact-checking services.
Part of the reason sanctions were justified is that the claims in the lawsuit could be easily debunked had any of the lawyers had the least bit of intellectual curiosity or attentiveness to their duty to reasonably investigate the claims prior to filing.
How easy, you ask? according to the [New York Times]() even one day would have been enough, even if you were Trump partisans:
According to emails contained in the documents, Zach Parkinson, then the [Trump] campaign’s deputy director of communications, reached out to subordinates on Nov. 13 asking them to “substantiate or debunk” several matters concerning Dominion. The next day, the emails show, Mr. Parkinson received a copy of a memo cobbled together by his staff from what largely appear to be news articles and public fact-checking services.
The employee appeared without the subpoenaed identification papers, having only learned about the deposition when he showed up for work that morning. Hearst’s lawyers allege that they presented the employee with multiple documents drawing his immigration status into question, including mismatched signatures, papers he purported to have filled out himself although he cannot read or write English, one form which described him as a US citizen, and another which described him as a permanent resident under a program which cuts off eligibility three years before the witness was even born. The lawyer hired by NuStar to represent the workers advised his client to assert his Fifth Amendment right against self-incrimination, at which point Biss lost his shit and demanded to go off the record.
Two hours later, the witness’s attorney had been fired, and Biss, who claims not to represent the NuStar workers, was insisting that none of the six would take the Fifth. Hearst’s lawyers refused to depose an unrepresented witness who might incriminate himself with truthful testimony, and the proceeding was adjourned sine die.
Gary Fielder missed the Friday triply-extended deadline, but managed to file his opening appellant brief on Saturday in both the District and Circuit courts (along with a motion for extension of time).
It looks like his main beef is Lujan v. Defenders of Wildlife which is a 1992 Supreme Court decision which routinely denies standing to people claiming injury which is common to everyone.
The first nonsense argument I spotted: (p. 5):
every registered voter has one shared right to vote for President and Vice-President. Any persons engaged in state action that substantially burdens that right is liable under the [Civil Rights] Act. Thus, a registered voter in one State has the right to sue persons for acts concerning a Presidential election committed in another State.
The case cited to support this argument is Anderson v. Celebrezze (1983) which does on page 460 U. S. 795 explain that the electoral college means some votes may not have equal strength in deciding the president:
For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.
but that doesn't mean that the right to vote is impacted. But Importantly, Fielder cites page 788 which leaves it as a mystery to me just what citation he means.
Fielder continues:
The district court may be limited by want of personal jurisdiction over a defendant, but if the voter chooses to travel to the district in which the perpetrator may be found, jurisdiction is satisfied.
Wrong. Not only does that not connect with any of the containing paragraph, but a post-election cross-country drive is not going to get a Maryland voter personal jurisdiction over an Ohio election official. And certainly not in a Colorado court.
And when it comes down to pleading Injury in fact (pp. 25-30), at no point does Fielder make a case. There is nothing like a chain of causation or a specification of how one state's actors burdens the right to vote of people in another state. Just a wallpaper of case law going nowhere and a promise that “In their complaints, the Plaintiffs outlined with specificity how the Defendants substantially burdened their respective right to vote in the 2020 Presidential election.”
The section ends with the paragraph:
As described by the Plaintiffs in their complaints, the conduct of the Defendants had a direct impact on the result of the 2020 Presidential election, which likely does not reflect the actual will of the American people.
A footnote is attached. Does the footnote explain that Donald Trump lost the popular election in 2016 and in 2020? No, of course not.
The President of the United States is ultimately chosen by the Electors of each State. U.S. Const., Art. II, §1. These facts, however, are unprecedented in the history of the United States. Nonetheless, the Plaintiffs take no position, and have never made any requests regarding the legitimacy of the Presidential election. The Plaintiffs are powerless, in that regard. Nonetheless, the damages suffered by the Defendants are the foreseeable result of the Defendants’ conduct. The power of persons like Zuckerberg and Chan, Facebook and Dominion to affect the outcome of any election is tremendous and fearsome. To deny it, is to deny reality.
That is some crazy-pants, preaching-to-the-choir writing. It really highlights Fielder's failure to serve the initial complaint on Zuckerberg and Chan. It seems pretty salacious to write this when the essential matter of stating how plaintiffs' right to vote was burdened goes unstated. It also looks like an attack on the Constitution's electoral college as undemocratic. True, but not really a winning point in court.
However, the electoral college scheme is precisely that which destroys the claims built on a right to vote. Each state is responsible for its own procedures on how to choose electors and how much freedom those electors have to vote. Variance in state-to-state voting schemes, funding, standards and procedures is fairly mandated by the Constitution.
Only if one is preaching to the choir would such a weak pleading of particularized injuries apply.
As expected, at The Volokh Conspiracry there is a new article "Certain Documents Unsealed in Nunes v. Lizza" referring to the farm case. The article is pretty bare in that it primarily links to redacted and less redacted copies of the four filings above and has a short comment on the process of getting them largely unredacted.
It is suggested that more exposition may come next week.
Gov. DeSantis produced some extremely gross racism, including evidence that unrelated Black civil rights groups in other parts of the state had organized marches.
“Though it is true the event flyers include images of Black men and women apparently engaged in peaceful protest, Plaintiffs are not before this Court representing all Black men and women in the State of Florida,” the court noted acidly.
DeSantis also included this flier for a Juneteenth celebration of “Black Joy” as proof that the defendants felt free to express their opposition to the government.
The Plaintiffs' counsel Gary Fielder has just now noticed that the date he requested his appeal opening brief be extended to (10th circuit, 21-1161) is the same day that he asked his rule 59 motion to modifiy judgment be extended do and asks (and gets) an extension of time for the later.
Quoth the Judge:
Any motion brought pursuant to Rule 59 shall be filed on or before September 28, 2021. No further extensions will be granted.
(even more emphasis in original)
So how is that appeal going?
2021-04-30 Civil appeal docketed.
2021-05-14 Record complete, Opening brief originally due 2021-06-23
Eugene Volokh got four documents partially unredacted, concerned the exchange of motions about a desire to compel an employee/witness to provide documents that should have been brought to the deposition but where the witness seemed unprepared. It was also notably about Steven Biss's behavior carving out 2 hours to jaw with a witness' lawyer on whether the the witness really wanted to take the fifth at a deposition.
Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.
but declined to order attorneys more than to read up on how Van Stelton v. Van Stelton prohibits telling witnesses to shut up without also filing for a protective order. Later in 122 the judge reconsiders and suggests that six employees may very well need criminal defense attorneys assigned.
So what did Volokh get from the exchange of motion papers?
Specifically, when the first employee’s independent counsel advised his client to assert his Fifth Amendment right in response to questioning about the Form I-9 he completed to gain employment at NuStar’s farm, Plaintiffs’ counsel, Steven Biss, suddenly took the deposition off the record. Then, two hours of discussions took place between and among Mr. Biss, the witness’s independent counsel, and one or both of the Nunes plaintiffs. At the conclusion of those conversations, the parties went back on the record. Defendants’ counsel asked the first employee witness if he understood his lawyer’s advice, and if he was going to follow it and assert his Fifth Amendment right. Before the witness could answer, Mr. Biss responded, “No, he’s not going to follow it.” The independent counsel then stated that he had been fired, and that his services would not be offered to the other NuStar employees, either.
Before, during, and after the first employee deposition, Mr. Biss represented, consistent with the Plaintiffs’ pleadings, that there are no problems with the employees’ documentation or their immigration status, and that they would not assert their Fifth Amendment rights. See, e.g., Boyer Decl., Ex. F at 74:1-20; id., Ex. H at 20:21-23:15; id., Ex. I. That Mr. Biss would make these representations—despite apparently never meeting with these witnesses, not being their lawyer, and notwithstanding an avalanche of indicia that the workers are here illegally—raises questions about his and his clients’ efforts to mold or restrain the testimony of these witnesses.
The NuStar employees did nothing wrong and will not assert the Fifth Amendment or refuse to answer any questions. Contrary to Defendants’ argument, the NuStar employees have not received a “clear signal from their employer as to what answers to provide and not provide”. This is a categorically false statement as is Defendants’ inflammatory speculation that any employee will “lie under oath, allowing untruthful testimony to be entered into the record”.
Plaintiffs and their counsel did not cause the “independent counsel” to be fired by [the employee-witness FSD]. [FSD] fired the lawyer himself. Plaintiffs were not at the deposition. Plaintiffs’ counsel appeared remotely, and never spoke with the witness.
Setting aside its bluster, irrelevant and inaccurate attacks on Mr. Lizza’s reporting, and baseless accusations of misconduct by Defendants and their representatives, Plaintiffs’ Resistance does not dispute the alarming facts that support granting the relief Defendants seek.
So, somewhere in there I hope Volokh finds something to write about.
Aha. But back in the other defamation case, the one purportedly brought by the Nunes Family who farms, but is still repressented by Steven Biss and about the true party at interest motivating the lawsuit is a question that no one is answering just yet, we have this Motion referring to the decision in the Eight Circuit:
On September 15, 2021, the United States Court of Appeals for the Eighth Circuit ruled in the appeal filed by Devin G. Nunes in Case 5:19-cv-4064-CJW-MAR. The Court of Appeals affirmed in part, reversed in part and remanded for further proceedings. A copy of the Court of Appeals’ decision is attached.
Significantly, the Court of Appeals held that Devin Nunes’ complaint states a plausible claim for defamation by implication. The Court, p. 6, found as follows:
“Nunes contends that his complaint states a plausible claim for defamation by implication. He argues that the article implies the existence of a ‘politically explosive secret’ that he ‘conspired with others’ to hide the farm’s use of undocumented labor. He alleges that the implication is false because he was not involved in the farm’s operations, and ‘had no knowledge of who the dairy farm hired. The district court concluded that ‘no reasonable reader’ could draw that implication from the article. We respectfully disagree.”
Plaintiffs made the exact same claim of defamation by implication in this case, and the District Court dismissed that claim for the exact same reasons as it dismissed Devin Nunes’ claim. See ECF No. 50 (Memorandum Opinion and Order), pp. 28-32.
In light of the Court of Appeals’ reversal, we intend to move the Court in this case for leave to file an amended complaint re-asserting the claim of defamation by implication.
The Court of Appeals’ decision directly impacts the administration of this case. Plaintiffs have a right – indirectly affirmed by the Court of Appeals – to pursue a claim of defamation by implication. In light of the Court of Appeals’ ruling, we request that the summary judgment schedule be suspended and the trial date continued so that Plaintiffs can pursue full justice.
It doesn't follow (to me) that a defamation claim brought by one party in one suit being found to have merit gives rise to the proposition the claim in another suit also has merit unless the parties are identical in which case we have another problem....
Re: The "Appeal"
From Docket 22.
Re: Re: Re: Who owns the copyright?
Popcorn indeed, as Twitter asked for and got a rehearing under a new judge with a schedule inviting amici.
The "Appeal"
On January 7, filed a motion for reconsideration of the order and asking for a new judge. They listed five main points of disagreement with the order by the Magistrate Judge:
In re DMCA § 512(h) Subpoena to Twitter, Inc. (4:20-mc-80214), Docket 22
On January 11, the same Magistrate Judge who signed the December 29 order agreed to the reassignment and rehearing.
Docket 23
And now there is a call for additional amici briefs as the schedule for going forward is as follows:
• February 18, 2022 – Amicus briefs in support of Twitter due;
• March 11, 2022 – Bayside’s response / opposition due;
• April 4, 2022 – Amicus briefs in support of Bayside or amicus briefs that do not support either party due;
• April 25, 2022 – Twitter’s reply due;
• May 12, 2022 – Hearing.
Docket 26
Re: Oh, no!
Each team has about 26 major league players and 116 minor league players (of which 14 are subject to collective bargaining on the "40 man roster"), and a fourteen year contract. There is no job security or actions a player can take to ensure promotion.
About 71.8% earn between $8k-12k a year (April-August).
About 9.9% earn between $12k-$563k a year
About 9.2% earn between $563.5k-1100k a year
About 6.7% earn between $1100k-$10000k a year
About 1.9% earn between $10000k-25000k a year
About 0.5% earn over $25000k a year.
https://en.as.com/en/2021/10/08/mlb/1633685987_178363.html
https://www.espn.com/mlb/story/_/id /32172108/can-union-fix-minor-leaguers-say-poverty-level-pay-poor-housing-driving-mental-health-cris is
Re: 2nd,3rd OBJECTIONS: TOO MANY SANCTIONS
Law and Crime covered this in a story entitled Sidney Powell and Others Want to Pay Less Than $44,000 in Sanctions After Trying to Overturn the 2020 Election
It refers to all three objections. I like this part:
2nd,3rd OBJECTIONS: TOO MANY SANCTIONS
In Doc 176 Emily Newman also objects to the City of Detroit's lawyers billing for appellate costs. We also get the novel argument that the number of hours the City's lawyers bill for should not exceed the 57.8 hours which the Michigan state attorneys used. And then there's the novel argument that hours spent arguing for sanctions that were awarded were not hours spent toward defending a case.
Further, Newman finds fault that the annotations and retractions carving up the billing record into three categories of asked-for reimbursement was made “done well after the activity occurred.” as will happen when a billing practice suitable for one purpose is repurposed to a court order which happened months laser.
In Doc 177 L. Lin Wood's attorney also argues against paying for the appeal and the sanctions. Case law is cited that “only those fees which directly resulted from the sanctionable conduct’ should be awarded under Rule 11. But the court has other authority to levy fees. So when addressing the courts other authority, the requested reimbursement wrong under Rule 11 is twisted to be “punitive” and thus ill advised. ha ha!
Lin Wood's attorney tries to argue against the rate, but adopts "median" or "average" as the only "reasonable" rate. Clearly, that is not a reasonable position informed by the experts in statistics.
And so Lin Wood's demand is to limit payment to the City of Detroit to what the state lawyers billed as state employees despite the same economic survey clearly pointing out the private/public wage gap.
Re: Re: Farm Case - Enter the Volokh
Press converge on the case continues to ramp up and now there are requests for transcripts to be released.
Status Conference tomorrow at 10 AM.
Nunes v. Lizza (5:20-cv-04003) District Court, N.D. Iowa
Re: OBJECTION: TOO MANY SANCTIONS
At the very end of the attachment to Doc 174, a spreadsheet totals the three categories and it from here the extra $0.50 came from. But if all the numbers are truncated to the whole dollar amount in the ask in paragraph 9, it follows that you can't ask the judge to reduce by that $0.50, already removed.
Re: OBJECTION: TOO MANY SANCTIONS
Unrelated to the above, but perhaps a post hoc justification for lawyers reading the news, is that Sidney Powell claims two deaths were murders to cover up election fraud. Based on less than nothing.
Re: OBJECTION: TOO MANY SANCTIONS
The Detroit News covered the above.
It didn't have any snark or opinion on the objection, but did point out that the author is lawyer for only Sidney Powell, Julia Haller, Brandon Johnson, Scott Hagerstrom, Howard Kleinhendler, and Gregory Rohl. L. Lin Wood, Emily Newman, and Stefanie Lynn Junttila may yet file something.
OBJECTION: TOO MANY SANCTIONS
On September 8, in an attachment to Doc 174 the lawyers for the City of Detroit list charges which at a discounted rate total to $182,192.
From paragraph 9:
Today, two weeks later, the crowd of Sidney Powell and others object in Doc 175 make a reasonable sounding argument that they should not have to pay the $26,077.50 in costs and fees for the appeal -- not in proceedings at this District Court, at least. They also make the unreasonable case that the City of Detroit's bill should not exceed that of the State of Michigan defendants (whose lawyers are public servants).
But even their reasonable side has problems. Where did the $0.50 come from? Presumably they took the base rates of $325, $225 and $75 and reduced them by 10% to $292.50, $202.50 and $67.50 and then multiplied those reduced rates by the hours worked and totaled. But if that is so, it doesn't follow that they are entitled to that last $0.50 if the judge goes strictly by paragraph 9.
On the unreasonable side, they claim that:
No case law cited.
But the whole point of these sanctions is that the entire litigation was unreasonable due to actions of the Plaintiffs' lawyers. Moreover, in the cases cited, it was the Court's suspicion of hidden unreasonableness that led to a reduction of 5-10% for block billing. So they need more than to just point out the lawyers spent entire 8 and 11 hour days puzzling over this case.
Totally reasonable and as the 7 (or so) lawyers on the plaintiff side did not read the complaint and amended complaint with the scrutiny required by their Rule 11 duty, it follows that they are ill equipped to determine how many man-hours are needed to slog through those hundreds of pages.
Legal billing practices are foreign to me, but the concept of collaboration is not.
Finally, they seem to hit upon a small, certain win only to immediately undermine it:
If your opponent is contaminating the potential jury pool with their PR efforts, does not one have a professional responsibility to get ahead of Dame Rumor? OK, so perhaps there is no jury pool for a case before a Magistrate Judge, but it would be inconvenient if the anti-democratic (and anti-Democratic) saber-rattling caused unnecessary grief to the City of Detroit.
Their own exhibit makes it clear it is 2 items, probably each billed at the minimum increment of 1/4 hour.
Sadly, I cannot find this reasonable either, because Plaintiffs' lawyers were wrong in so many, many ways. Naturally, taking time out to describe and argue every breach of duty is going to take some time, some research and some real money.
Once again, they are not the arbiters of what is reasonable. The City of Detroit contracted for these services and is on the hook for these charges which can only be called unreasonable in the same breath one blames the Plaintiff's attorneys for these expenses.
Re: Re: NOT ENOUGH SANCTIONS
Part of the reason sanctions were justified is that the claims in the lawsuit could be easily debunked had any of the lawyers had the least bit of intellectual curiosity or attentiveness to their duty to reasonably investigate the claims prior to filing.
How easy, you ask? according to the New York Times even one day would have been enough, even if you were Trump partisans:
And the New York Times has the 14 page memo.
Re: Re: NOT ENOUGH SANCTIONS
Part of the reason sanctions were justified is that the claims in the lawsuit could be easily debunked had any of the lawyers had the least bit of intellectual curiosity or attentiveness to their duty to reasonably investigate the claims prior to filing.
How easy, you ask? according to the [New York Times]() even one day would have been enough, even if you were Trump partisans:
And the New York Times has the 14 page memo.
Re: Re: Farm Case - Enter the Volokh
Above the Law: "Nunes Defamation Suit Sheds Redaction Bars, Is Somehow Even Grosser Than Expected" has a summary of what was revealed:
Re: Re: Re: Re: Re: The Drama continues...
Gary Fielder missed the Friday triply-extended deadline, but managed to file his opening appellant brief on Saturday in both the District and Circuit courts (along with a motion for extension of time).
It looks like his main beef is Lujan v. Defenders of Wildlife which is a 1992 Supreme Court decision which routinely denies standing to people claiming injury which is common to everyone.
The first nonsense argument I spotted: (p. 5):
The case cited to support this argument is Anderson v. Celebrezze (1983) which does on page 460 U. S. 795 explain that the electoral college means some votes may not have equal strength in deciding the president:
but that doesn't mean that the right to vote is impacted. But Importantly, Fielder cites page 788 which leaves it as a mystery to me just what citation he means.
Fielder continues:
Wrong. Not only does that not connect with any of the containing paragraph, but a post-election cross-country drive is not going to get a Maryland voter personal jurisdiction over an Ohio election official. And certainly not in a Colorado court.
And when it comes down to pleading Injury in fact (pp. 25-30), at no point does Fielder make a case. There is nothing like a chain of causation or a specification of how one state's actors burdens the right to vote of people in another state. Just a wallpaper of case law going nowhere and a promise that “In their complaints, the Plaintiffs outlined with specificity how the Defendants substantially burdened their respective right to vote in the 2020 Presidential election.”
The section ends with the paragraph:
A footnote is attached. Does the footnote explain that Donald Trump lost the popular election in 2016 and in 2020? No, of course not.
That is some crazy-pants, preaching-to-the-choir writing. It really highlights Fielder's failure to serve the initial complaint on Zuckerberg and Chan. It seems pretty salacious to write this when the essential matter of stating how plaintiffs' right to vote was burdened goes unstated. It also looks like an attack on the Constitution's electoral college as undemocratic. True, but not really a winning point in court.
However, the electoral college scheme is precisely that which destroys the claims built on a right to vote. Each state is responsible for its own procedures on how to choose electors and how much freedom those electors have to vote. Variance in state-to-state voting schemes, funding, standards and procedures is fairly mandated by the Constitution.
Only if one is preaching to the choir would such a weak pleading of particularized injuries apply.
Re: Re: Farm Case - Enter the Volokh
As expected, at The Volokh Conspiracry there is a new article "Certain Documents Unsealed in Nunes v. Lizza" referring to the farm case. The article is pretty bare in that it primarily links to redacted and less redacted copies of the four filings above and has a short comment on the process of getting them largely unredacted.
It is suggested that more exposition may come next week.
DeSantis, Governor and Florida Man (redux)
See also From Above the Law: Court Dropkicks FL Law That Redefined Protest As Illegal Riot
Re: Re: Re: Re: The Drama continues...
The Plaintiffs' counsel Gary Fielder has just now noticed that the date he requested his appeal opening brief be extended to (10th circuit, 21-1161) is the same day that he asked his rule 59 motion to modifiy judgment be extended do and asks (and gets) an extension of time for the later.
Quoth the Judge:
So how is that appeal going?
Re: Farm Case - Enter the Volokh
Eugene Volokh got four documents partially unredacted, concerned the exchange of motions about a desire to compel an employee/witness to provide documents that should have been brought to the deposition but where the witness seemed unprepared. It was also notably about Steven Biss's behavior carving out 2 hours to jaw with a witness' lawyer on whether the the witness really wanted to take the fifth at a deposition.
From Doc 119, the judge wrote:
but declined to order attorneys more than to read up on how Van Stelton v. Van Stelton prohibits telling witnesses to shut up without also filing for a protective order. Later in 122 the judge reconsiders and suggests that six employees may very well need criminal defense attorneys assigned.
So what did Volokh get from the exchange of motion papers?
Well the unredacted (less redacted) reply document 111 lays out some assertions of suspicious fact patterns involving I-9, SSN records that don't match and Biss’s behavior.
Nunes v. Lizza (5:20-cv-04003) District Court, N.D. Iowa
Motion to compel by defendants 103 2021-05-21
Argument to compel 103-1 2021-05-21
Response 107 2021-06-01
So, somewhere in there I hope Volokh finds something to write about.
(untitled comment)
Aha. But back in the other defamation case, the one purportedly brought by the Nunes Family who farms, but is still repressented by Steven Biss and about the true party at interest motivating the lawsuit is a question that no one is answering just yet, we have this Motion referring to the decision in the Eight Circuit:
Nunes v. Lizza (5:20-cv-04003) District Court, N.D. Iowa Doc 162 2021-09-15
It doesn't follow (to me) that a defamation claim brought by one party in one suit being found to have merit gives rise to the proposition the claim in another suit also has merit unless the parties are identical in which case we have another problem....
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