FL Court orders discovery dispute to be solved by "Rock, Paper, Scissors."

[djg21]

This it great. Leave it to a Federal Court in Florida to fashion a new remedy in an effort to resolve a discovery dispute between acrimonious lawyers. Perhaps this is how Bush v. Gore should have been decided. It would probably have been more fair than entrusting the question of a recount to Scalia.

The following is the text from the decision in Avista Manag., Inc. v. Wausau Underwriters Ins. Co., 05-cv-1430 (M.D. Fl. June 6, 2006). This is the text of the decision in its entirety (a public document). Follow this link to download the PDF. http://howappealing.law.com/PresnellOrder.pdf

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
______________________________________

AVISTA MANAGEMENT, INC.,
d/b/a Avista Plex, Inc.,

Plaintiff

-vs- Case No. 6:05-cv-1430-Orl-31JGG


(Consolidated)
WAUSAU UNDERWRITERS INSURANCE
COMPANY,

Defendant.
______________________________________

ORDER

This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule
30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of
Gordian knots that the parties have been unable to untangle without enlisting the assistance of the
federal courts – it is

ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of
alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall
convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they
shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave.,
Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who
shall act as an attendant and witness. At that time and location, counsel shall engage in one (1)
game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the
location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during theperiod July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may
be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in
Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey
Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.
Copies furnished to:
Counsel of Record
Unrepresented Party
Case 6:05-cv-01430-GAP-JGG Document 106 Filed 06/06/2006

[stop the bleeding]

1. nothing surprises me anymore

especially when it comes to the legal system.

this is classic:)

[LaurenG]

2. Ahhhh Roflmaol

:rofl: :rofl: :rofl: This district court judge has set a precedent that I shall cite at work when two parties can't compromise. lol

[Sanity Claws]

3. Couple of things here

First, notice that the dispute is between two corporations. Remember the RW nuts try to say that the courts are being tied up by frivolous lawsuits and try to prevent you, as an individual, from bringing tort claims. This is proof that it is not individual tort claims that are tying up the courts.
Second, notice that the judge is derisive of his duties and responsibilities as a judge. If he thought the discovery disputes were getting out of hand, he could have appointed a discovery magistrate to handle the issue. Judges have a lot of authority to handle discovery disputes.
Third, the judge is engendering disrespect for the law and the legal system. No one needs a judge or the legal system, if you're going to have to use a kid's game to resolve a problem. This is a typical Republican tactic.

[djg21]

4. Lighten up! ;->

I think the response was perfect.

If anything, the decision underscores the attorneys' disrepect for the law and legal system, and it very publically upbraids the attorneys for their conduct -- which the Court clearly believed to be unprofessional and silly -- and sends a clear message to other lawyers practicing in that District Court regarding civility. I like the judge's sense of humor.

Regarding magistrate judges, most often they are appointed, but sometimes they are not. Additionally, it is unclear whether this decision resulted from an appeal to the District Court of a Magistrate's discovery order.

Finally, frivolous claims are not exclusive to the realm of tort law, and actually come in all stripes!

[Sanity Claws]

5. I'm an attorney and I am pissed at this judge

Discovery is required. If the judge thought the disputes were petty, then he can appoint a discovery magistrate or he can sanction the party who he believes is at fault.
Respect for the system is kept. The kid's game trivializes that whole thing.
In this state, I remember a court commissioner resolved a family law issue by tossing a coin. She was reported to the Commission on Judicial Conduct. I don't remember the decision but I doubt she ever did that again.

[djg21]

7. I'm an attorney too.

And I would never consider bringing a motion to have a judge select the location to conduct a Rule 30(b)(6) deposition. Come on! This should have been agreed upon in advance by the attorneys irrespective of the acrimony. The fact that someone actually made, and presumably briefed such a motion, is patently laughable. And if you make such a silly motion, you deserve no less than an equally silly decision.

[Sanity Claws]

8. I'm not sure all parties were represented.

Look at the bottom of the order where it lists where the order is to be transmitted. It says "unrepresented party." I have to wonder whether a pro se just didn't know what he was supposed to do.
Another possibility is that a party was insisting that the agent appointed under Rule 30(b)(6) be required to have his deposition taken in the district, not where he normally resides or works. Whether an agent should be compelled to come to the district and at whose expense sounds like a legitimate argument. If the disagreement was whether the dep should be at one office or another, then that is frivolous.

[djg21]

9. two points,

Not to belabor this. I posted the decision because I thought it entertaining!

(1) I have not looked on PACER, but the decision states: "If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave.,
Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who
shall act as an attendant and witness." Presumably, the corporate defendant and the plaintiff were represented. Perhaps there were other individual defendants who are not identified in the caption?

(2) Regarding the location of depositions of a corporate party, the law that has evolved under the federal rules is pretty clear and uniform -- the deposition must be taken within a reasonable distance from the Corporation's place of business so as not to be disruptive of day-to-day business functions.

[iverglas]

16. "Discovery is required" --

and I think that was the whole point. The dispute was about *where* discovery would be held. Until that dispute was resolved, discovery couldn't be held.

Random methods of determining a winner are in fact a time-honoured part of the common law.

Here's what the grad students' association at the McGill University law school does:

http://www.glsa.law.mcgill.ca/archive-en.htm

Each class representative shall take on an officer portfolio during his/her term of office. The representatives shall agree on the assignment of the officer portfolios by consensus. In the event that no agreement can be reached, the decision will be taken by coin toss.

In Ontario, the Municipal Elections Act says:

http://www.canlii.org/on/laws/sta/1996c.32sch./20060412/whole.html#BK79

Tied vote

(3) If the recount indicates that two or more candidates who cannot both or all be declared elected to an office have received the same number of votes, the clerk shall choose the successful candidate or candidates by lot.

It's not unreasonable that where both parties' cases have equal merit (or lack thereof) and the outcome of the issue is not actually going to affect anyone's interests in any real way, "lot" would solve the problem. "Rock, scissors, paper" just does a good job of underlining the lack of merit on both sides.

When I was articling, I had a judge decide a small claims court parking-lot accident damage case in pretty much that way, except that he dressed it up to look like he was really making a decision. He apportioned fault 50/50. Unfortunately, the damage to my client's car was about 3 times the value of the damage to the other guy's car, so my client lost, for all practical purposes.

In a family court case, I agree, a coin toss doesn't seem respectful - of the judice system. Some parties may not deserve respect, and maybe Solomon had the right idea for those cases. ;)


Here's an interesting article on the question, from the U of Toronto law journal:

http://www.utpjournals.com/product/utlj/504/504_chapman.html

CHANCE, REASON, AND THE RULE OF LAW

Bruce Chapman

Legal theory construes adjudication as a self-consciously rational enterprise, that is, as an institution that decides the issues between the parties on the basis of reasons. Moreover, unlike forms of market or political decision making, these reasons are publicly articulated and, to a large extent, form the authoritative basis for the court's decision. Weak reasoning will typically undermine the authority of a case and leave it exposed to the indignity of being distinguished into oblivion, if not completely overturned.

But what if some decision must be made and there really is no available reason to choose one way rather than another? What then? Does legal theory have much to tell us about this sort of decision or the kind of justification that can be offered in support of it? Without available reasons to decide the case one way rather than another, can there be any basis for the decision to be either authoritative or subject to challenge?

These are the sorts of questions that Neil Duxbury addresses in his book Random Justice: On Lotteries and Legal Decision-Making, and it is pretty clear that Duxbury, writing as a legal theorist, believes that the last two questions are entitled to an affirmative response. Duxbury recognizes, of course, that we will be uncomfortable with the idea that legal decisions may be good, and hence justifiable and authoritative, when reason is absent; a common assumption is that 'the alternative to reasoned adjudication is unchecked judicial discretion' . As Pierre Schlag puts it, 'From the perspective of the rule-of-law ideal, the exhaustion of reason is tantamount to an admission that legal actors do not know what they are doing – that law is, in a word, lawless.' But that, in part, is precisely why one might want to resort to the lottery, the device for unreasoned decision-making that Duxbury focuses on in his book. Not only does the lottery remove decision-making power from the discretion of the decision maker, but, according to Duxbury, it has other advantages as well. ...

[ET Awful]

15. Additionally -

Without providing an accurate description of the rules of said game, there can be no legally binding result since any outcome would be overly vague and ambiguous.

:P

[slackmaster]

20. Blasphemy!!!

Rock, paper, scissors is NOT a "kid's game"!

Duck, Duck, Goose is a kid's game.

Musical chairs is a kid's game.

[stevedeshazer]

6. BREAKING! Scissors Acquires Paper in Hostile Takeover

Rock stock hits rock bottom. :)

[justice1]

10. DHS will have undercover marshals confiscating scissors.

[Toucano]

12. That's perfect! n/t

[sugar magnolia]

11. I have a huge problem with this.

>>At that time and location, counsel shall engage in one (1)
game of “rock, paper, scissors.”

Come on, ONE game? Everyone knows that the best two out of three is fair.

[Blue_Tires]

13. why not just flip a coin?

[MilesColtrane]

14. And I'm sure the losing party will appeal, citing

the precedents of Finders v. Keepers and Losers v. Weepers.

The whole US legal system is an elementary school playground with the richest at the top of the monkey bars.

[Javaman]

17. Total BS, they should have used Innie Meanie Miny Moe!!! nt.

[slackmaster]

18. I think "Odd or even?" would have been more appropriate

A game my stepfather taught me: One man grabs a pinch of the other's arm hair, and that man has to guess whether the number of hairs about to be pulled is odd or even.

[slackmaster]

19. I find nothing at all wrong with this

Differences that seem equally balanced are sometimes resolved in court by coin flips. Tied elections in Nevada are traditionally decided by the candidates drawing two cards from a deck, with high (occasionally low) card the winner.

[AngryAmish]

21. He is making them travel from Orlando to Tampa

1.5 hr trip each way. This is a way to coerce the parties to come to agreement and stop being babies. Great decision.

[gratuitous]

22. Judges HATE discovery disputes

It's obvious from the first sentence of the order that the parties have been screwing around for a long time on a lot of picayune items, running to the judge every time somebody doesn't grant a do-over or say "Tap, tap, no tap-backs" when filing a motion. The site of a deposition is not something to bring before the judge, it should be worked out by the parties. It's to the judge's credit that the judge didn't order, "Knock it the hell off, you knuckleheads before I crack your skulls together."