Respectful Insolence

Quashed!

Just reported by Kathleen Seidel:

From the United States District Court for the District of New Hampshire, Case No. 1:08-mc-00013-JM:

ENDORSED ORDER granting MOTION to Quash Subpoena.

Text of Order: “Granted. Attorney Clifford Shoemaker is ordered to show cause within 10 days why he should not be sanctioned under Fed R Civ P 11 – see Fed R Civ P 45(a)(2)(B) which requires that a deposition subpoena be issued from the court in which the deposition is to occur and Fed R Civ P 45 (c)(1) commanding counsel to avoid burdensome subpoenas. A failure to appear will result in notification of Mr Shoemaker’s conduct to the Presiding Judge in the Eastern District of Virginia.”

So Ordered by Magistrate Judge James R. Muirhead.
(Entered: 04/21/2008)

Yes! Clifford Shoemaker has been slapped down in a big way for his abuse of the subpoena privilege.

Comments

  1. #1 Chemgeek
    April 22, 2008

    Nice.

    Any lawyers out there willing to describe what this means in layman’s terms?

  2. #2 RBH
    April 22, 2008

    That is very good news!

  3. #3 PalMD
    April 22, 2008

    w00t!

    Means he got pwned!

  4. #4 Uncle Dave
    April 22, 2008

    “A failure to appear will result in notification of Mr Shoemaker’s conduct to the Presiding Judge in the Eastern District of Virginia.”"

    What does this imply?

    Could he be sanctioned or reported to the Bar for abuse of subpoena Priviledge?

  5. #5 Ahcuah
    April 22, 2008

    I’m not a lawyer (but that’s never stopped me before).

    Two things happened here:

    First, the subpoena was quashed. That means that Kathleen doesn’t have to obey it at all. The judge looked at her reasoning on why the subpoena was really unrelated to the case at hand, and said that there was no reason for her to comply with it.

    Second, the judge applied sanctions (which we were all hoping for). Most times, if a subpoena gets quashed, the legal arguments have a gray area over whether it should be quashed or not (the precedents might be on both sides of the issue), so the judge has to weigh which precedent is the weightiest. In this instance, the judge decided that the subpoena was a piece of crap, and that a lawyer, as an officer of the court, should have known that it was crap and not issued it. In other words, the judge decided that it was really issued to harass. By referring it to the presiding judge, he more or less said, “I’m going to tell your Mommy”. (In the interest of fairness, though, the judge first gave Shoemaker 10 days to try to come up with a reasonable excuse for the harassment. Good luck with that.)

    Sanctions can be all sorts of things. It could be a monetary fine. It could be paying Kathleen for her time, effort, and money (she’ll have to file a motion with the court detailing those if she wants to try to get them). In severest cases, sanctions can include right out losing the case. In that instance, the judge right there on the spot can rule that the whole process has been so polluted that Shoemaker’s client loses immediately. That’s unlikely here (but it sure would be fun to watch!).

  6. #6 Ahcuah
    April 22, 2008

    Sorry about the multiples. Every time I submitted, I got an internal service error.

  7. #7 rpenner
    April 22, 2008

    The Federal Rules of Civil Procedure are the “rules of the game” and are a bit easier to actually understand than the law, in my (unqualified) opinion.
    Fed R Civ P 11:

    Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
    (a) Signature.
    Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented…..
    (b) Representations to the Court.
    By presenting to the court … an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
    (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; …
    (c) Sanctions.
    (1) In General.
    If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. …
    (4) Nature of a Sanction.
    A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
    (5) Limitations on Monetary Sanctions. …
    (6) Requirements for an Order.
    An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
    (d) Inapplicability to Discovery.
    This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

    Fed R Civ P 45(a)(2)(B):
    Fed R Civ P 45(c)(1):

    Rule 45. Subpoena
    (a) In General.

    (2) Issued from Which Court.
    A subpoena must issue as follows:

    (B) for attendance at a deposition, from the court for the district where the deposition is to be taken; and
    ….
    (c) Protecting a Person Subject to a Subpoena.
    (1) Avoiding Undue Burden or Expense; Sanctions.
    A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney’s fees — on a party or attorney who fails to comply.

  8. #8 DLC
    April 22, 2008

    Sweet !
    The guy got his posterior handed to him, royally, is what it means.
    Particularly the part about ” commanding counsel to avoid burdensome subpoenas. A failure to appear will result in notification of Mr Shoemaker’s conduct to the Presiding Judge in the Eastern District of Virginia.”

    This means that the presiding judge can recommend a penalty or issue a contempt citation, or both, or refer the matter to the ethics board.

    PS: For those getting 500 errors — close the page and re-open the blog at the post where you put up a reply, and your reply will show up just fine.
    I’ve been getting some of these errors also, and this workaround has been successful.

  9. #9 Jud
    April 22, 2008

    IAAL, and given what was said in the order to show cause, I’m wondering whether this was something of a technical defect. Apparently Shoemaker didn’t go to the trouble of getting the local federal district court where Seidel’s “deposition [testimony/evidence, either verbal or documentary] was to be taken” to issue the subpoena, and this is pretty much automatically an unfair burden on Seidel.

  10. #10 bones
    April 22, 2008

    “Second, the judge applied sanctions…:

    Not quite yet, but Shoemaker’s a step away.. The judge issued an “order to show cause” as to why he shouldn’t be sanctioned. In other words, in this particular instance, Shoemaker needs to appear before the judge and persuade him not to impose sanctions, i.e., give a REALLY damn good explanation for issuing the subpoena.

    Would love to be a fly on the wall in that court room…

  11. #11 bones
    April 22, 2008

    “I’m wondering whether this was something of a technical defect…”

    No. From what I know, if the judge is contemplating sanctions and forcing Shoemaker to explain his actions, this goes beyond a mere technicality.

  12. #12 Laser Potato
    April 22, 2008

    Thank goodness for small victories.

  13. #13 Rev. BigDumbChimp
    April 22, 2008

    Is there any possible way that Shoemaker can show cause for this that won’t end up in him being sanctioned? IANAL by any stretch but I can’t see anything in what I’ve read that gives him even the thinnest ledge to stand on.

  14. #14 Uncle Dave
    April 22, 2008

    I will interested in the potential sanctions portion of this continuing saga. Squashing a subpoena is one thing, but making sure the place the hand of the offending attorney on the hot stove is the only thing that they understand.

    Apparently Justice does prevail.

  15. #15 gerald spezio
    April 22, 2008

    O J Simpson is practicing almost every day trying to get his chip shot closer to the pin.

    O J may have been wiped our financially by his dream team, but he is a free man and a shining credit to the rule of smaht lawyers.

    Alan Dershowitz wrote a whole book about how the verdict was right on the money.

    The two other people in the story are still dead.

  16. #16 wfjag
    April 22, 2008

    “‘A failure to appear will result in notification of Mr Shoemaker’s conduct to the Presiding Judge in the Eastern District of Virginia.’

    What does this imply?”

    This goes well beyond the typical “show cause” order. A typical show cause order is issued because the court on its own, or an opposing party, alleges a fatal defect in the pleading. Under fundamental Due Process rights (notice and the opportunity to be heard), the proponent must “show cause, if any they can” that no such defect exists. A show cause order by the court is unusual (since courts depend on opposing parties to usually raise such issues). One that refers to Rule 11, Fed. Rules of Civ. Pro., is much more unusual since it notifies the proponent of the pleading that the court is considering imposing sanctions on the grounds that the pleading is wholly frivolous. Rule 11 sanctions can run from a royal ass chewing by the Judge, to being ordered to take courses in ethics, to community service as an educational matter, to fines. By referring to taking the matter to the Chief Judge, the U.S. Magistrate Judge is signaling the possibility of ethics sanctions. Every federal court has its own Bar Roll. Being admitted to practice by the state’s Supreme Court does not, by itself, entitle an attorney to practice before the federal courts in that state. Each federal court can sanction for ethics violations regardless of what the state Supreme Court or state Bar Association does. The Chief Judge of a federal court can order an attorney struck from that court’s Bar Roll — so that that attorney cannot appear as counsel in any case pending in that federal court, and can include in the order striking the attorney provisions that prevent the attorney from indirectly appearing (by working on a case in any manner). Although not required, the federal court can also make an ethics complaint to the state Supreme Court or Bar Association asking that the attorney be sanctioned by them, also. This could result in suspension or revocation of the attorney’s licence in all courts in the state.

    Additionally, note that the show cause order is issued by a U.S. Magistrate Judge. Magistrate Judges are not nominated, confirmed by the Senate and appointed for life. They are employed for a term of years, and usually handled routine discovery motions, sometimes hear misdemeanor cases, and their duties are confined to what in federal courts are considered reasonably minor matters. Magistrate Judge Muirhead has put himself out on a limb by issuing a show cause order containing the terms that it does. There will be a definite winner and loser — and Magistrate Judge Muirhead has put himself in the position to be the loser (something I have no doubt that he understood when issuing the order). A Magistrate Judge cannot impose sanctions by his/her own order. Rather, the Magistrate Judge issues a Recommendation (both on the show cause order and other matters, including sanctions), and the Recommendation is reviewed and approved, modified or disapproved by a US District Judge. Magistrate Judge Muirhead has, by this order, set himself up for very close review by the presiding Judge in the suit, and by the Chief Judge of the E.D. Va. For someone who likely wants to become a U.S. District Judge, rather than see himself not re-appointed as a Magistrate Judge, that’s quite a step he has taken.

    These things become cumulative, since just as soon as the show cause, etc., proceedings as to Ms. Seidel are concluded, Showmaker will be facing proceedings arising out of the subpoena for Dr. Marie McCormick, who chaired the Immunization Safety Review Committee of the IOM. On its face this subpoena appears much more abusive and frivolous that that to Ms. Seidel. All of the IOM records, documents and information are US government property. Shoemaker could have sought them via a Freedom of Information Act request, and then sued under FOIA for any withheld, or served the subpoena on IOM and required IOM to designate a representative(s) to testify as to their contents. Dr. McCormick, individually, is neither the custodian of the documents, nor the US’s designated representative.

    From a legal standpoint, Mr. Shoemaker’s problems have only just begun.

  17. #17 anti-vax nutbars
    April 22, 2008

    Conspiracy I tell you!! Conspiracy!!! Now the judicial system is in the pocket of Big Pharma, too!!! Won’t someone, Dear God, think of the children!! Oooh, Jenny McCarthy’s on Oprah. Gotta go.

  18. #18 isles
    April 22, 2008

    wfjag, thank you for that explanation of the context.

    Cliff Shoemaker is no match for Kathleen’s Lasso of Truth!

  19. #19 bones
    April 22, 2008

    “Lasso of Truth”…nice!!! Now I’ve got that theme song stuck in my head.

  20. #20 Lucas McCarty
    April 22, 2008

    The Lasso of Truth is overrated. When I was in the scouts we were taught about all the principle-based ties and knots including The Bow of Apathy, The Noose of Unexplained-Stuff-That-Will-Be-Explained-In-Time and The Triple Butterfly Knot of Hygiene Awareness. Any of them beat the Lasso of Truth because it can only catch people in their own lies whilst the others tend to get to everybody at some point.

  21. #21 Screechy Monkey
    April 22, 2008

    Just to add to what wfjag said: I think the reason the Magistrate Judge’s order mentions possible referral to the Presiding Judge of the E.D.Va. is because Shoemaker is, presumably, not a member of the New Hampshire bar.

    The Federal Rules of Civil Procedure authorize an attorney to issue a subpoena under the name of any federal court, so Shoemaker was supposed to issue the subpoena to a New Hampshire resident under the name of the federal court for the District of New Hampshire. He could do that even without being admitted to the N.H. court; these things happen all the time. The New Hampshire court has power to issue sanctions under rule 11,* but it can’t really take any disciplinary action against Shoemaker since he’s not a member of that court’s bar anyway. So any ethical violations would have to be referred to the Eastern District of Virginia and/or the state bar of Virginia.

    *-it could issue monetary sanctions, but I don’t think it would have jurisdiction to enter issue sanctions or dismiss the case, since the case is pending in a different court. It’s a moot point anyway, since you don’t get those kind of sanctions just for one discovery violation, however egregious. Courts try very hard not to punish clients for the misdeeds of their attorneys.

  22. #22 Rev. BigDumbChimp
    April 22, 2008

    I apologize ahead of time for this but I’m feeling onery today…

    I wonder what Mr. Best’s comments on this will be?

  23. #23 gerald spezio
    April 22, 2008

    “Courts try very hard not to punish clients for the misdeeds of their attorneys.”

    Posted by: Screechy Monkey | April 22, 2008 12:42 PM

    Ohhh, And I thought that the so-called public court was actually a professional playground paid for by the public but designed for lawyers to milk the public.

    Ohhh, and I thought that the judge’s job was to maximize his brother lawyers’ access to fees and thereby advance his own petty legal career.

    Whether the lawyer milks his own client or some other hapless client dragged into court is not important.

    Now I know what all those public courts are there to help the proles.

    And the judge is there to protect the proles from UNETHICAL lawyers.

    It is true that lawyers routinely advertise their forensic skills by saying: “You’re sitting pretty because I know the judge,” and “the judge always rules for me.”

    Another lawyer hype is; “I went to law school with the judge.”

    And this classic which is sometimes true: “The judge and I used to be law partners.”

    Sometimes the judge hates your lawyer, and you get it up the wazoo for hiring the wrong lawyer.

  24. #24 Screechy Monkey
    April 22, 2008

    Gerald, I’m not interested in debating the state of the legal system with you. The point I was making was that in the context of sanctions, there’s a strong policy expressed in the case law against imposing issue or terminating sanctions based on attorney misconduct. So anyone hoping that Shoemaker’s client will have her case dismissed over this is almost certainly going to be disappointed. I’m sorry for trying to helpful.

  25. #25 Rich
    April 22, 2008

    Initially, typically in federal court, a magistrate judge resolves discovery issues and then a district judge would rule on the magistrate judge’s actions. Presuming the parties did not consent to let a magistrate determine the issues, that is.
    Chances are, Shoemaker’s clients will not be sanctioned, if the court imposes them. The court can direct that the attorney pay the sanctions out of his own pocket. Shoemaker cannot pass this onto his client as a bill. Unless there is some strong evidence that Shoemaker did this solely at the direction of his client and they did not heed his advice about not doing it, then Shoemaker would be responsible for whatever sanctions are imposed.
    Sanctions, if imposed, generally consist of monetary damages.
    What the impact of complaining to the Chief Judge of the Eastern District of Virginia will do to Shoemaker. There could be potential disciplinary proceeding brought

  26. #26 gerald spezio
    April 22, 2008

    Screechy, sometimes I despair when I see a good fellow be so serious about such fee generating legal blather.

    In medieval England lawyers were paid by the word.

    Try John Smith’s sur reply to Pocahontas’s sur reply to whatever & whomever in order to lighten up about Shoemaker’s Italian shoes and /or sanctions etc;
    http://www.falseallegations.com/drano63-rescission-surreply-opp-dismiss.htm

  27. #27 gerald spezio
    April 22, 2008

    “Shoemaker cannot pass this onto his client as a bill.”

    Could slick lawyer-person Shoemaker add 20 or 30 non-itemized hours to his bill?

    For research?

    “Who is going to stop me?” saith Shoes-&-suits.

  28. #28 gerald spezio
    April 22, 2008

    Remember this always: When you enter the lawyer’s con-game, you are the mark.

  29. #29 notmercury
    April 22, 2008

    I just want to thank Lucas for making me laugh today. I was already in a good mood over the outcome of the Cliff-hanger but the Scout knots will have me smiling for the rest of the day.

  30. #30 wfjag
    April 22, 2008

    Screechy Monkey: Good point. I’d overlooked the fact that the Magistrate is in NH. But, since Shoemaker can expect something similar from Mass. due to the McCormick subpoena, it’s likely that the sanctions issue will end up before the Chief Judge, E.D. Va.

    “Shoemaker cannot pass this onto his client as a bill.
    Could slick lawyer-person Shoemaker add 20 or 30 non-itemized hours to his bill?
    For research?
    Who is going to stop me?” saith Shoes-&-suits.
    Posted by: gerald spezio”

    Yes, Gerald, I am aware of an attorney who tried that trick. The attorney ended up in prison, first for comtempt of court, while he awaited trial in state court for fraud (and ended up in the state pen for that) — and he lost his license (and practice, and family). While the chances of getting caught aren’t necessarily large (unless the attorney has a client who doesn’t like being over-charged and will turn the attorney in), the consequences are catastrophic. Shoemaker isn’t a fool, and only a fool would do something like that in a high profile case.

    Why is it, Gerald, that I get the feeling from your comments that your ex ruled you into court for non-payment of child support, and you suffered the consequences? Or, were you ruled in for some other reason and suffered the consequences of your conduct?

  31. #31 bones
    April 22, 2008

    Yeah, Lucas, that’s some funny shizzo!! The Bow of Apathy, indeed…

  32. #32 gerald spezio
    April 22, 2008

    Shoemaker is not the proverbial bad apple in the barrel.

    Shoemaker is a shining example of an elitist extortion racket that extracts more wealth from the productive economy than the entire medical establishment.

    See John Smith’s sur reply above.

  33. #33 Rev. BigDumbChimp
    April 22, 2008

    Gerald are you this worked up about other professions where people make money? Doctors? Psychs?

  34. #34 daedalus2u
    April 22, 2008

    I wonder if the Mercury Militia is going to inundate the Judge with emails and other messages? Perhaps John Best will show up at the hearing to be a character witness for Shoemaker. I definitely think that John Best being there will help the cause of Justice. Perhaps both of them could then be given what they both truly deserve.

  35. #35 blf
    April 23, 2008

    I wonder if wfjag put his(? her?) finger on it w.r.t. spezio: He does rather sound like someone who had a run-in with the criminal/civil system, things didn’t go his way, and now he’s transferred/projected his incoherent frustrations onto the legal profession as a whole (aided and abetted, presumably, by a wider general dislike/suspicion of lawyers in the community). Also note the general denialist tactics: Avoiding answering questions, not providing sources, rambling (albeit mercifully short) diatribes mostly (or so it seems) consisting of rhetorical questions, and so on.

    To his credit, at least in the threads about Shoemaker’s actions, he’s perhaps been more-or-less on-topic (rather more so than this comment!). It’s possible that hidden in monologues is a valid point about Shoemaker’s actions. And he’s probably verbalising the annoyance I suspect most commenters (and Orac himself?) have with Shoemaker’s actions.

  36. #36 bones
    April 23, 2008

    spezio…spare me the melodrama. Seriously, you sound like a wet-behind-the-ears 18yr old college freshman who just took his first sociology course.

    Did you join the “New Republic” newsletter team yet?

  37. #37 Jesse
    April 23, 2008

    I wonder if wfjag put his(? her?) finger on it w.r.t. spezio: He does rather sound like someone who had a run-in with the criminal/civil system, things didn’t go his way, and now he’s transferred/projected his incoherent frustrations onto the legal profession as a whole (aided and abetted, presumably, by a wider general dislike/suspicion of lawyers in the community).

    I’ve wondered if he just got rejected by all the law schools he applied to at some point, much like a guy with no luck for women would become a misogynist.

  38. #38 anonymous
    April 27, 2008

    It is rare for an attorney to be sanctioned for much of anything, but from what I understand — even for civil practice these subpoenas were completely over the top. The one for the blogster is especially pernicious because she has no relationship to the case at all.

    I think ‘jag is right. Spezio sounds like the guy who’s substantially in arrears in his child support payments and got slammed by the judge for becoming voluntarily underemployed, or his ex found the hidden assets and he had to cough them up.

  39. #39 gerald spezio
    April 29, 2008

    jag = judge advocate general?