Can a Court Engage in Abusive Discovery?

ABA’s Litigation News reported that the federal district judge in lawsuit between Oracle and Google sua sponte ordered the parties to identify all journalists, bloggers, or other writers paid to comment on any of the issues in the case. Jannis E. Goodnow, “Surprise Order Forces Parties to Identify Bloggers on Payroll,” Litigation News (Jan. 3, 2013).

Judge William Alsup cited his “concern” that the parties or their counsel “may have retained or paid print or Internet authors, journalists, commentators or bloggers who have and/or may publish comments on the issues.” Oracle America, Inc. v. Google Inc., No. C 10-03561 WHA, Order re Disclosure of Financial Relationships with Commentators on Issues in This Case (N.D. Calif. Aug. 7, 2012). And in a follow-up order, Judge Alsup expanded the scope of the order to include disclosure of those authors even if their payment was not specifically for commenting on the case before him. Order to Supplement (Aug. 20, 2012).

Judge Alsup offered a strange rationale for his disclosure order:

“Just as a treatise on the law may influence the courts, public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways. If a treatise author or blogger is paid by a litigant, should not that relationship be known?”

Well; not really.  A treatise author’s opinion is only as good as the facts and inferences that are employed in reaching a conclusion.  The judge’s job is, of course, to assess the reasoning for himself.

Judge Alsup’s rhetorical question reveals a fundamental misunderstanding of the judicial function.  The arguments in a case come from counsel who have are being paid.  The financial biases are complex.  Generally, the court might expect each side to benefit in some way financially from obtaining a ruling in line with the arguments it has advanced.  Sometimes, defense counsel may benefit from perpetuating a litigation, but their reputational interests alone certainly will motivate them to prevail.  Plaintiffs’ counsel hope to make money in pursuing a case.  Typically, legal counsel can be trusted to address the issues comprehensively.  Money will be involved.

Of course, journalists, bloggers, law professors, or pundits may put forward an argument not advanced by the parties.  A trial or an appellate judge might see such an argument, but why would funding make a difference to the merits of the argument?  Judges are, after all, supposed to be good at evaluating arguments without favor or prejudice.  And if a judge were to encounter an argument, presented by a non-party but not by the parties, which argument was persuasive, the judge would have the option of requesting the parties’ briefing on the matter.

Disclosure of party funding of writers might legitimately be needed when there was a matter of a poll or survey evidence influenced by the funded writers.  Such evidence apparently was not involved in the Oracle case; indeed, Judge Alsup’s request was based upon a purely fictitious concern.  After the parties made their disclosures, Judge Alsup announced that he would not take any action because none of the journalistic commentary or blogging had influenced any of his decisions.

So this intrusive exercise in court-ordered disclosure really served no purpose at all.  If a party were to propound discovery requests that did not advance the litigation, we would not hesitate to call the discovery abusive.

Unfortunately, no one is paying me to blog on the issues I find interesting.

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