I am not entirely sure whether she expects the parties to take this latest late evening order… seriously, tonight. Or really — it might be just to say “wait and watch what I do next Monday /Tuesday.”

That is, perhaps she intends to dismiss the entire injunction proceeding sought by Texas, for the utter failure of Texas, to make any on the record, good faith effort to meet her discovery order.

That would at least make her look “stupid / wise like a fox” — over all of this noncompliant posturing.

In truth though, I think she’s going to tell only the feds (despite the truly Herculean efforts the federal Border Patrol folks made — as we have documented — to meet her crazy discovery order) that they lose — and the injunction will stand, and Border Patrol will have to appeal to the Fifth Circuit after Monday’s hearing. Yep — these truly are… crazy times:

…SUPPLEMENTAL ORDER: It is ORDERED that based on today’s virtual conference and the parties’ previous filing (ECF No. 36), the temporary restraining order initially issued on October 30, 2023 at 9:30 a.m. and then extended to November 27, 2023 at 9:30 a.m. be extended to November 29, 2023 at 11:59 p.m. on the consent of the parties, which will provide the Court enough time to render a timely decision on the pending preliminary injunction motion; and

It is FURTHER ORDERED that the Defendants have until November 27, 2023 at 10 a.m. to produce outstanding documents that the Court ordered on November 9, 2023 to be produced, as modified by the Court’s November 15, 2023 order, through a virtual link that the Court has already sent to the parties….

Signed by Chief Judge Alia Moses….

Again — with the billions of pages?! Whoah… cra-cra.

नमस्ते

Well, this won’t do. This is simply… not cricket.

On the public record, this afternoon, she has set the next injunction hearing for Monday afternoon, November 27, 2023. But she has entered another order, also this afternoon, from the same hearing — which is labeled as “scheduling matters” — but only counsel for the parties to the litigation may view it. [Even if it is only the associated Zoom access links, Monday is the preliminary injunction HEARING in a very newsworthy case — and clearly as a matter of law — the public must be allowed to petition for “listen in” only access. C’mon, man!]

But I must say, honestly — given what we’ve already seen, I’m not terribly surprised… that she runs her chambers in this fashion. It seems “We, the People’s” right to contemporaneous public access — to we, the people’s federal court records… isn’t something she much fancies — down there in dusty West Texas. But to be certain, it is bedrock 75 year federal Constitutional law: we are entitled to see the courts work, in real time — absent a national security issue.

And do recall, she is demanding up to a billion pages of governmental deliberative documents, all be given to her, so it would be ironic indeed, if she were to claim to be unaware of the guaranteed public access issue (and decisions construing it).

My hunch is that she’s simply choosing to ignore the law (again!) — to avoid an embarrassing MSM accounting of her actions here. [Yeh. I think I’ll pitch this lack of access / process story to the Houston and Austin papers. It is certainly… newsworthy.] In any event, here is a bit of what I’ll send to her chambers as a non-party, shortly, to encourage her to unseal that last order… before the real press writes about her dual docket / purported “local practice rules“:

My [entirely pro bono] clients recognize that the court has myriad other demands on its time and limited staffing resources, but absent a documented showing of unreasonable administrative burdens (and a two page order, published at the same moment, makes it plain that this is no administrative burden!), the public’s right to contemporaneous access to judicial records cannot be overcome. See, e.g., Courthouse News Serv. v. Planet, No. CV 11-08083 SJO (FFMx), 2016 U.S. Dist. LEXIS 105197, at *62 (C.D. Cal. May 26, 2016) (“to the extent Planet might argue that such a practice would have been cost-prohibitive or unduly labor intensive, she has not quantified the cost… nor has she detailed the additional labor that would have been required)….

Absent such evidence, the Court cannot ‘articulate facts demonstrating an administrative burden sufficient to deny access.’”) (citation omitted), aff’ in part rev’d in part, 947 F.3d 581, 597 (9th Cir. 2020) (holding that “Ventura County’s no-access-before-process policy bears no real relationship to the County’s legitimate administrative concerns about… efficient court administration”); see also United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (holding unconstitutional the district court’s maintenance of a dual-docketing system, where certain docket entries were visible only to the parties, and expressly rejecting the argument that unsealing would bind the court to a “formal procedure that is unduly burdensome”).

Specifically, a pre-trial scheduling order in this matter has entered by the court just now (ECF Doc. No. 44, 11/21/2023) but remains entirely invisible to the public. Of course, while redactions for trade or governmental secrets (and sensitive, personally identifying information) would be normal, there has been no such effort made, on the part of the court. It seems court staff sua sponte designated ECF Document No. 44 “attorneys’ eyes” only.

Based on my review of the ECF record in this matter, it would seem no public court order — whether in writing or issued orally from your bench – has set forth the findings required by the First Amendment, prior to the removal of this judicial document from the record. See, e.g., Oregonian Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 1462 (9th Cir. 1990).

However, rather than waste more of the court’s resources and time, I have chosen (as a non-party member of the public, and at this point, non-intervenor) to simply write to you directly, and copy counsel for both sides on this. I am hopeful the lawyers will prepare and file a redacted version, as required by long-standing, uncontroverted black letter First Amendment law (which applies, even — perhaps surprisingly to you — in the Western District of Texas).

To be clear, this need not (and perhaps should not) require my filing as an intervenor, in your courtroom — to be placed on any public docket, as it sensibly ought to be resolved without need for appearances in the record, on my clients’ behalf….

Please prepare and publish a redacted version of Document No. 44, before Monday, November 27, 2023. Kind regards…. /s/

Well… we shall see if her staff sees this — and handles it quietly and promptly. We shall see.

नमस्ते

Ostensibly by noon today, West Texas time, the parties (including the Texas state level folks!) are supposed to have submitted potentially over a billion pages for Judge Moses’ review. As we earlier said, that was never going to happen. It is a preposterous order, on its face — and an abuse of civil discovery rules — as she well knows.

So, instead the federal agencies have produced a statement of good faith efforts, to be discussed at today’s conference. The USDC Judge is likely to be bellicose about it, but thus far, the local Texas Rangers haven’t lifted a finger to comply. And as we’ve said repeatedly, no real discovery is needed to determine that the razor wire impedes federal statutory rights, and on federal lands, no less.

In sum, Judge Alia Moses… engages in… lunacy here. Hopefully, she realizes that today, at the hearing — and rules that the feds are entitled to remove the barriers. Here’s to hoping. And, in any event, here’s the latest sworn testimony, from the federal Border Patrol lawyers (BTW, where is the Texas state level sworn statement, Gov. Abbott?!):

..Just running the processes necessary to perform the broad searches encompassed by the Court’s order would place extreme stress and burdens on CBP’s information systems and interfere with other CBP functions. Dismuke Decl. ¶¶ 6–14. Indeed, if the CBP eDiscovery Team were to perform the types of searches necessary to comply with the Court’s order as written, it would be unable to service discovery obligations in any of its other 125 open matters, including other civil litigation matters, and any requests from the Office of Professional Responsibility, the CBP FOIA Office, the Department of Homeland-Office of Inspector General, or the SOC (Security Operations Center). Id. ¶ 14. Depending on the ultimate scope, it could take between several months and several years to perform the searches necessary to comply with the Court’s order and ingest the data, to say nothing of performing the necessary reviews for responsiveness, privilege, and other applicable withholdings and redactions, and ultimately producing the documents….

Defendants respectfully submit that, while unnecessary to decide Texas’s preliminary-injunction motion, the anticipated production could resolve factual questions the Court believes relevant to its decision. Included in the production are documents reflecting that the concertina wire inhibits Border Patrol’s ability to patrol the border and inspect, apprehend, and process migrants in this four-mile stretch of the border, and the ways in which Border Patrol has coordinated with Texas about the wire in this area….

As a general matter [as reflected in the over 6,500 documents cleared and produced this morning, November 21, 2023], the documents reflect that while Border Patrol and DPS have engaged in some coordination about the concertina wire, the relationship has deteriorated over time, driven at least in part by at least one instance in which Texas DPS personnel threatened to criminally charge Border Patrol for cutting the wire and DPS efforts to impede Border Patrol access to certain areas. Defendants intend to offer a selection of the documents provided to the Court, included those cited here, among the exhibits it will submit at the second preliminary injunction hearing….

Well… unless Judge Moses wants to hear from the Fifth Circuit that she is abusing her office, she ought to simmer down, and start following well-settled federal law. Onward.

नमस्ते