Wednesday, December 7, 2011

Magistrate Judge Torres Bonks Governor Scott on Intrusive Subpoena on ACLU.



Usually when you serve a subpoena to depose opposing counsel that means there is at least a fair chance you are a d$@k of a lawyer.

That's especially true when there's not even an arguable basis for how such a deposition fits within the broad discovery parameters of Rule 26.

But hey, that's our Governor:
We agree with the ACLU that the ACLU’s “knowledge and position” on employer drug testing, the prevalence of drug use, public opinion polls, and the effects of workplace drug use, have almost nothing to do with the claims or defenses in this case. Whatever the ACLU knows or believes about the frequency or propriety of employer drug testing or drug use simply has no relevance to the constitutional claim at issue – whether drug testing of these state employees in executive agencies is permissible under the Fourth Amendment. Neither does the ACLU’s knowledge or belief have any bearing on the Defendant’s affirmative defenses.
Oh yeah, one other thing -- the ACLU is counsel of record in the suit challenging the Governor's insipid drug-testing policy:
Finally, the most troubling aspect of these subpoenas is their impact on the ACLU’s role as counsel in the case on behalf of the Plaintiff. Obviously, such requests are generally disfavored. “Discovery was hardly intended to enable a learned profession to perfonn its functions . . . on wits borrowed from the adversary.” Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring). Both the attorney-client privilege and the work-product doctrine are implicated when an attorney deposes his or her adversary. If clients fear that their counsel may be deposed and forced to answer questions about the case, a chilling effect on clients’ candor with counsel may result. Similarly, knowing that they eventually may be deposed about their knowledge of documents and other facts connected with a case may lead attorneys to shield themselves from relevant facts, thereby resulting in less effective representation. 
Good thing we have the Governor to protect our constitutional liberties from the big bad ACLU.....

1 comment: