Not A Good Idea To Irritate A Federal Judge.


Let's see if I can boil this down.

Summary judgment filed.

Plaintiffs say depo must be taken first.

Emails about scheduling depos occur from February through April.

In the meantime Magistrate Judge Torres files R&R granting motion.

Plaintiffs move for reconsideration, saying "hmm, what about that depo"?
Here's why the Judge is irritated:
As it turns out, after briefing on the summary judgment motion closed Plaintiffs appear to have dragged their feet to schedule the deposition. Though it was represented to the Court that it would take place in February, and Defendants’ counsel appears to have provided dates for the deposition consistent with that representation, for some reason Plaintiffs did not promptly schedule the deposition even with the proverbial sword of Damocles hanging over their head. Plaintiffs, instead, got around to the issue three months later in April when counsel requested new dates for late April. By that point, of course, this Court disposed of the pending summary judgment motion with the very reasonable assumption that the record by that point had closed.
The Judge continues:
Plaintiffs then shamelessly maintain that this Court “overlooked” the parties’ agreement as to the taking of the Rule 30(b)(6) deposition, without any mention or regret over their own lack of diligence.
A few points:

I'm sympathetic to the Magistrate Judge, who spent time working on an R&R and now he's got to do it all over again.

But it can take a while to schedule a 30(b)(6) deposition. The party seeking the deposition is not in total control of that timetable. I don't think three months is that unusual, though I agree they probably should have pushed it a little quicker. But is that really "dragging their feet" and "lack of diligence" in the context of federal court litigation?

Perhaps a telephonic status would have made sense, in order to ask about the depo or set a deadline for its completion?

Also, if the depo had been taken, wouldn't someone alert the Court to it? Like a supplement to the motion, or a surreply, or even a notice of filing?

But, in even-handed fashion, the Judge is also ticked at the defendants:
Not to be outdone, Defendants’ response was equally irritating. Rather than acknowledging their earlier agreement as to the need for completing the Rule 30(b)(6) deposition, Defendants tried to back away from and minimize it by claiming that they never agreed the deposition was necessary or relevant. While conceding that they did not object to the deposition, Defendants argued that they have always maintained that resolution of the motion need not await “far-ranging” discovery.Defendants oppose reconsideration because any additional discovery would be futile, as this Court’s Report found, and there has been no newly found evidence as Plaintiffs’ supporting evidence was produced to them long ago.
He then lowers the boom:
Faced with this record, we readily conclude that both parties have fallen short in their obligation to assist this Court in rendering timely and fair justice in this case. Both parties should have timely advised the Court as to the delay in completing this deposition, and their failure to do so led to unnecessary consumption of judicial resources.
So, what to do?

Order the depo be taken but let everyone know the depo is superfluous and the ruling will be the same anyways:
But upon reflection we conclude instead that reconsideration is still required here to avoid any further wasted judicial resources. Although we still believe that the Report’s reasoning is still sound and may not be overcome by anything learned in this deposition, the risk of error is tangibly present in this record.
So now, to "avoid any further wasted judicial resources," the plaintiffs have to schedule and take a pointless deposition that won't affect the outcome anyways, pay a court reporter, and file something in a futile effort to change the Judge's mind.

What other choice do they have (besides just giving up)?


  1. Wet Shumie????

  2. what the hail is a wet shumie?

  3. Even-handed (if you have one hand).

  4. Shumie time Vegas styleJune 8, 2010 at 3:15 PM

    I don't know when I'm leaving work, but here's a tip:

    The Big Man himself will be in Vegas this weekend, with a high roller 3 BR apartment at a super exclusive condo, taking in all the top shows, rolling dem bones at the craps table, splitting tens and then doubling down, and having a grand ol time.

  5. SHUMIE TIME RULESJune 8, 2010 at 3:20 PM

    A "Wet Shumie" is defined as "taking a shumie time when it is raining". 34R-90.02(d) Shumie Rules and Regulations.

  6. @3:19, every day is Friday on SFL blog.

  7. Interesting post, only to be met with these shumie morons. SFL, you must pull your hair out.

  8. shumie copy editorJune 8, 2010 at 4:35 PM

    3:20 PM- I've got a copy of the rules right here and I'm pretty sure you've cited to the general time designations section. The specific "wet shumie" designation is in subsection (d) i-4. So it should read


  9. The Big Man himself spotted a van at one of the downtown firms parking lots. Airbrushed on the side, 'Disco Rules.' The man in the van presumably SFL was seen wearing a white polyester jumpsuit, dark shades and holding a Bee Gees album.

  10. Gary coleman for shumieJune 8, 2010 at 4:37 PM

    Who you callin a moron Willis????

  11. Hey @4:33-- SFL welcomed us with open arms!!

    When do we get the invitation to the van warming?

  12. 4:43, SFL gets his van "warmed" and his "engine" revved every Friday when he posts the following-- "Oh hail I'm heading out of the office early to gather my windsurfing essentials."

  13. SFL who can hit the higher note- your latina, Barry, Robin or Maurice?

    3:15- Don't depart Vegas without making a stop at the Palomino Club.

  14. Whats at the Palomino club?

    And how about Barry White for those high notes??

  15. retired and loving it.June 8, 2010 at 5:31 PM

    Try the dime slots club at the Flamingo- plus free soda and 50 cents off the afternoon early bird buffet. Oy Vey!

  16. Man there's something about Palin that I'd just like to bang until I shut her the f up. And I could do it. She'd be exhausted.

  17. 5:30, Palomino Club-- All nude entertainment and alcohol.

    Barry White? It's obvious you missed the little sex joke.

  18. i don't get it?

  19. Hey you @ 5:30--What the hail are you smoking? Whatever cheap sh#t your dealer sold ya, get a refund. Barry White is bass.

    "Take it off. . . Baby, take it all off . . . I want you the way you came into the world . . . I don't wanna feel no clothes . . . I don't wanna see no panties . . . and take off that brassiere, my dear . . . Everybody's gone . . . we're gonna take the receiver off the phone . . . because, baby, you and me—heh . . . this night, we're gonna get it on . . . .to Love's Serenade"

  20. I smoke only the good stuff-- what about andy gibb?

  21. Not to be a thread killer, Barry Gibb is perhaps the most famous falsetto singer. The Beatles, not generally known for falsetto, used the falsetto technique in "Tell Me Why." Others- Roger Hodgson of Supertramp and Rob Halford of Judas Priest.

    Btw- the only reason bee gees play in the van is to mask the other 'high pitch' sounds.

  22. 6:24 makes a fine point, but regarding 5:25's question:

    I've always enjoyed the the quietly seething, I'm-just-as-handsome, I'm-a-better-singer, why-am-I-not-as-famous brotherly jealousy bubbling just under the surface with Robin.

  23. F_(*#ng losers who comment here. I'd love to bloody your noses.

  24. C-3PO: But sir, nobody worries about upsetting a droid.

    Han Solo: That's 'cause droids don't pull people's arms out of their sockets when they lose.

    Like judges.

  25. If I am reading this correctly, SFL, you are referencing a magistrate's opinion. As in one opinion written by one judge. So what is the"we" all about? I see it twice. "We readily conclude" and "we conclude." Is this a slip of the fingers on the keyboard or does it expose my extreme paranoia about what goes on in that overpriced palace down the street: these opinions are hammered out by others and only poorly proof read by their supposed authors. I think this faux pas deserves investigation or at least further comment. Use of "we" cannot be accidental. I think the opinion was a joint exercise. So the question is Your Honor: Who is We?

  26. Can a judge force a deposition date through a court order if either side is dragging their feet on scheduling it or if someone is being uncooperative?

  27. P.S. A motto to live by - don't irritate any judge. LOL.

  28. Torres missed the part about the parties informing him once the deposition was completed. Why did he just assume it was done when no one informed him one way or the other?

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