Lind v. Donahoe (CA1 7/28/11)

Cave iudicem. This is the third time AzAppBlog has reviewed an opinion (the others here and here) telling this judge that he’d abused his contempt power.

In this guardianship dispute among family members the court appointed a doctor to do a competency evaluation. One of the several lawyers involved subpoenaed the doctor’s records of her prior reports. Instead of telling the lawyer that there were 700 of them she called the judge and complained that she was being harassed. Instead of notifying the lawyers and telling them to work it out the judge called them in, decreed that the subpoena was improper and invalid because “some things just jump out at you [even though] you can’t articulate reasons,” demanded that lawyers tell him under oath privileged information such as who had discussed what about the subpoena, and sanctioned them in various ways, ignoring in the process most applicable rules and principles of law except to give them lip service.

The court issues this opinion to explain that you can’t do that. If you’re not sure about why, read the opinion. Actually, since there’s no new law here, maybe it issues it simply to try to get this judge to stop doing it. Fat chance.

An interesting detail is that some of the lawyers had formally entered into a “common interest agreement.” If you do such things be aware that, though a popular lawyers’-magazine topic some years back,  they can have more utility in theory than in practice. But this opinion says nothing critical of them and opines in a footnote that they needn’t be disclosed.

And footnote three, which first says that the court doesn’t decide whether the subpoena was overbroad, then decides it: “[E]xperts who are paid to testify in court should not be outraged or caught by surprise when they receive inquiries into the patterns that their opinions may reveal. Such inquiries are essential to meaningful cross-examination and an understanding of the integrity of the methods the experts employ.”

(link to opinion)