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"Full of Sound and Fury, Signifying Nothing" in Netflix Lawsuit Over Cuties Prosecution


From this morning's Supplemental Order on Grand Jury Discovery by Judge Michael Truncale (E.D. Tex.) in Netflix, Inc. v. Babin, a follow-up to Monday's decision (in which Netflix got discovery of grand jury materials in challenge to prosecution over Cuties):

In his most recent filing, [Tyler County D.A. Lucas] Babin criticized this Court for its "manifestly incorrect conclusions of law," for "trampl[ing] federalism," "ignor[ing] the sovereignty of the State of Texas," "eviscerat[ing] both the independent intermediary doctrine and the process of criminal justice in Texas," for its "usurpation of sovereign power," for "interfer[ing] with an ongoing state proceeding," and "ignor[ing] clear precedent." Upon closer inspection, these remarks are "full of sound and fury, signifying nothing."

The catalyst for Babin's obloquy was this Court's determination, in accordance with many of our sister courts' decisions, { Simpson v. Hines, No. B-88-00316-CA, 729 F. Supp. 526 (E.D. Tex. 1989) (Cobb, J.), Ramirez v. Abreo, No. 5:09-CV-190-C, 2010 WL 11470102 (N.D. Tex. 2010) (Cummings, J.), and Sanchez v. Gomez, No. EP-17-CV- 00133-PRM, 2019 WL 12536398 (W.D. Tex. 2019) (Castaneda, M.J.)}, that Fed. R. Crim. P. 6(e) should apply instead of Tex. Code Crim. P. art. 20A.205 in assessing whether the grand jury materials should be disclosed. Perhaps lost in all the noise, however, was this Court's recognition that long-standing precedent provides the rule of decision here. Pursuant to Erie R.R. v. Tompkins, 304 U.S. 64 (1938) and its progeny, and as this Court recently reaffirmed in Delarosa v. Great Neck Saw Mfrs., No. 1:20-CV-00402, 2021 WL 4618586 (E.D. Tex. Sept. 30, 2021), federal procedure must apply unless doing so would "abridge, enlarge, or modify" the substantive rights of the litigants. {See also Camacho v. Tex. Workforce Comm'n, 445 F.3d 407, 409 n.1 (5th Cir. 2006) (recognizing that "[t]he Erie case and the Supreme Court decisions following it apply in federal question cases as well.").}

Here, this Court's decision to apply the procedure of Rule 6(e) instead of the state procedure outlined in Article 20A.205 passes muster under Erie, because as the Fifth Circuit recognized in Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004), federal courts and Texas state courts apply the same substantive "particularized need" standard in deciding whether grand jury materials should be disclosed. Thus, federal law mandates the application of Rule 6(e), because it does not "abridge, enlarge, or modify" any of the litigants' substantive rights.

Whenever I hear the "sound and fury" line, I always think of who Macbeth was saying was telling that tale.

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  1. obloquy

    strong public criticism or verbal abuse.
    "he endured years of contempt and obloquy"

  2. With litigation going on forever, what I'm reminded of is the beginning of that speech: "Tomorrow and tomorrow and tomorrow . . . down to the last syllable of recorded time."

    1. Which unfortunately is the new norm for jurisprudence in America.

  3. "Local prosecutor used to extreme deference from judges who think they're both on the same team has tantrum when he realizes that not all federal judges feel the same way."

  4. At the risk of undertaking the distasteful task of defending this district attorney, isn't he right here? Rule 6 by its terms applies to a grand jury empaneled by a federal district court: what possible argument could there be that it applies to records maintained by a state entity, just because it also happens to be called a "grand jury"? (Notably, none of the three cases cited here engage with that question.)

    Obviously I would think a federal court has the authority to compel the release of the records anyway, and it could certainly look to Rule 6(e) for guidance in doing so; at any rate, I can't imagine that it would be appropriate to apply a more restrictive standard. So I suppose the entire thing does "signify[] nothing" in the sense that winning probably wouldn't help or change the outcome. But it still seems weird.

  5. Spooky ruling.

  6. I've limited myself to quoting these lines in my court papers only twice over 40+ years at the bar. In neither instance did I mention that the tale in my opposing counsel's papers was "told by an idiot" — partly on grounds of decorum and professionalism, but mostly on the theory that if the judge knew the rest of the quote and was inclined to draw the inference, it was more powerful when he or she did that unprompted.

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