Tuesday, March 20, 2012

The dark karma named "Brodkorb"

Bringing a "Motion to Squash"

Beth Hawkins has a very good article published at MinnPost called Brodkorb vs. Lawmakers: Depositions 101. I recommend it highly. I will add just a couple of comments.

MPR photograph
Here's what Hawkins says about the subpoena of witnesses by Brodkorb's lawyers:
In this case [of being subpoenaed], anyone summoned is likely to go straight to the judge, where their first argument is either they know nothing, making their statement irrelevant, or the subpoena is an improper attempt to harass and intimidate. 
To counter this, Brodkorb will have to convince the judge that he has good reason to think the interview will yield evidence and is not a fishing expedition.
Subpoenas are absurdly easy for a lawyer to get; no judge or clerk goes through a "Captain May I" exercise with the lawyer in order to issue one in the first instance. As Hawkins points out, it requires a motion to a judge, a motion to quash -- or a Motion to Squash, as Adrianna Huffington might, well did, say once -- to prevent the required appearance by the witness.

It's a lot of work, not to mention expensive, to bring a motion to quash. You make a public record when you do that. It's a lot easier for a third party witness to just show up for a deposition. And maybe spill the beans on a little coercion that's been eating at you for years.

Cal Ludeman has said that he intends to "protect" present and former staffers, but it isn't clear exactly how much Uncle Cal will be able to do -- at additional Senate expense, naturally -- if they are subpoenaed. A party to litigation (the Minnesota Senate here) can try to squash -- er, quash -- a subpoena on grounds that the interrogation of the witness will lead to the disclosure of privileged (think attorney-client or doctor-patient privilege) or trade secret information: neither is apposite here.
Your Honor, we ask that the subpoena for Ms. Foofniak's deposition be squashed. 
Why, Mr. Ludeman? Does she possess information that is privileged or trade secret to the State of Minnesota? 
Well, um, no. 
Do you represent Ms. Fooniak? 
What are grounds for quashing the subpoena? 
It might make us look bad? Yeah, that's it: it'll make us look bad. 
You'll have to take your chances on that one, Mr. Ludeman! Motion denied.
What are the chances that Brodkorb doesn't have the goods on people? I mean, really?

You know that he does. He probably has photographs.

It is not likely at all the Brodkorb's lawyers are going to need to "go fishing." But even if they are, they are entitled to fish a little: that's why it's called "discovery," not "what you know already." As a judge, you might be reversed if you don't allow requested discovery and the requesting party loses at trial and appeals; you won't be reversed for permitting too much discovery.

Here is the standard rule formulation of the scope of what may be sought in discovery: [I]nformation need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Both the federal and state court rules in Minnesota contain this statement.

I don't know about you, but the idea of MDE with the subpoena power turned loose on the Republicans is an interesting and potentially illuminating prospect to me.

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