Facebook, Subpoenas, and Brady v. Maryland in Texas

You know how we here at Abnormal Use adore court opinions and social media.  Accordingly, we couldn’t resist sharing this very recent Texas state court appellate opinion, arising from a forgery conviction, in which the issues at hand were Brady v. Maryland and Facebook.

The opinion in question is Futch v. State, No. 10-11-00283-CR (Tex. App. – Waco July 18, 2013, no pet. h.) [PDF].

Apparently, just before opening statements, the following lenghthy exchange took place (as set forth in the opinion):

[Defense Counsel]: Yes. Judge, a few minutes ago [Prosecutor] made a Brady type disclosure to me. I don’t want to run the risk of misstating what he told me.

If you’ll tell the judge.

[Prosecutor]: I’ll do it. Judge, there was one witness that was on our subpoena list. Her name is Sarah Parrish. She drifts. She’s very difficult to find. She’s not stable. The subpoena on her actually was never served. It went to Coryell County with her last known address, and they told us—they sent it back, “Unable to serve subpoena.” She showed up today. Her remark to me was much like it was to the officers the night of this – when the defendant was arrested, that he had permission from the check holder. She, technically, was never served by subpoena. I saw her at lunch and I talked with her at lunch, and she said, “Are you going to need me right now?” I said, “no,” and she said, “Could I go get lunch and then come right back or be back by 1:30?” I said, “sure,” because I don’t really have any desire to call her to the stand. As soon as I saw [Defense Counsel] after that, I let him know what she had said, and that’s the gist of it. I mean, quite honestly, I find her completely untruthful, and I don’t see any need to call her. That’s why – in the interest of fairness and disclosure, I wanted to give him everything we had on that. Today is the first chance I’ve ever had to talk to her, at lunch.

THE COURT: She never actually got served with the subpoena?

[Prosecutor]: No. She just showed up today, because the way the officer –the only way the officer – she has no phone number, she has no permanent address that we can find her at, and either one of the deputies or investigators from Coryell County or another police officer – I’m not sure –sent her a Facebook message. That’s what her mom said was the only way to get in touch with her was to send her a Facebook message and wait. They didn’t know if they would have her here in time or not. That’s what they were told. They sent her a Facebook message, and she told me she got it, I guess, this morning, and she showed up.

THE COURT: Modern culture, nothing like it.

[Defense Counsel]: Judge, for the record, I’ve been looking for her, myself, for two months. I turned every rock I could, including using the Facebook …. We have not had any response at all. Now, this is a very crucial element of the offense, of course. We don’t have the witness. We don’t have any means to get her.

[Prosecutor]: She said – the best I can say is she said she’d be back at our office at 1:30, and we were over here before 1:30, and I said I’d come back for her if we needed her.

THE COURT: [Defense Counsel], did the defense issue a subpoena for her also?

[Defense Counsel]: No. I didn’t know where to issue it, Judge. I didn’t know where to send it.

THE COURT: So what is it you’re suggesting that I do about it?

[Defense Counsel]: Well, I want to get this crucial piece of evidence before the jury. I mean, it’s a crucial part of their case. I don’t want to break any rules of decorum or anything like that, Judge, but I want to get some guidance from the Court about how to do it.

THE COURT: Well, my suggestion is to find the witness.

[Defense Counsel]: I don’t know where to look.

THE COURT: I don’t either.

[Prosecutor]: I mean, she may be back at our office. Like I said, we left at 1:15.

[Defense Counsel]: Well, you know, I can’t get in the DA’s office without an escort, Judge.

THE COURT: Find out if she’s back in you-all’s office. If she is, serve her with the subpoena.

[Prosecutor]: Okay.

[Prosecutor # 2]: We don’t have a subpoena for her anymore. Right?

[Prosecutor]: It came back not returned. I don’t have another one to hand her now. It has come back unable to locate.

THE COURT: Where is the original subpoena?

[Prosecutor]: To be honest, I don’t know. I handed it to my investigator. It was sent to Coryell County.

[Prosecutor # 2]: It was sent to Coryell County, and they sent the return back.

THE COURT: Well, if she’s over there and she comes to your office, have her brought over here. Escort her with an officer, if you have to, and I’ll talk with her.

[Prosecutor # 2]: Okay.

[Prosecutor]: Do you want me to go look right now before we get going?

THE COURT: You can call. I want to get the jury in here.

[Prosecutor]: Okay.

On appeal, Futch contended “that the State’s suppression of evidence favorable to his defense violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution or Article 1, Section 19 of the Texas Constitution” and that the State withheld oral testimony in violation of [Brady] by dismissing a witness who had voluntarily come to court to testify for the State. However, the court of appeals found that Futch did not preserve the issue for review.  Specifically, the court held that Futch’s attorney’s generalized reference to a “Brady type disclosure” and failure to object or otherwise move for a continuance waived the complaint. Now, as a civil litigation blog, we are more interested in the social media component of this case than the criminal procedure angles. However, we all must serve subpoenas, and we all face encountered difficult to locate witnesses whose online presence may be the only evidence of their whereabouts. Accordingly, FYI.

When Reading A Judge’s Ruling Is Actually Fun

Every so often, the blog gods shine down upon their minions and grant them a post that, almost literally, writes itself.  This is one of those posts.  While perusing Yahoo! News the other day, I ran across this story.  Go ahead.  Click on the link.  You’ll be glad you did.

Was I right?  A copy of the full opinion can be found here [PDF].  It’s well worth a full reading.

I’ve often thought that being a judge might sometimes get a little dry, and that writing legal opinions (or, rather, reviewing the opinions that my clerk wrote) might become mundane.  But every once in a while, a case lends itself to a bit of creative writing.

This ruling is simply hilarious.

I was also a bit curious about its author, U.S. District Judge Fred Biery, so I looked him up.  According to his official bio on the U.S. District Court for the Western District of Texas website, Judge Biery was appointed by President Clinton [withhold additional commentary here] and he enjoys basketball and gardening.  His Wikipedia page already has a citation to this fun ruling.

Law is serious business.  No one denies that.  Further, it is possible that the town of San Antonio and the strip club at issue do not find the judge’s lighthearted opinion at all amusing.  Perhaps they feel that their litigation is not being taken as seriously as they believe it should.  But for the rest of us, this opinion proves that lawyers–and judges–are not sticks-in-the-mud all the time.  And that’s a good thing!

Speaking of Social Media Discovery, A New Texas Case On Just That

We must direct your attention to the brand new opinion in In re Christus Health Southeast Texas, No. 09–12–00538–CV (Tex. App. – Beaumont March 28, 2013, orig. proceeding) (per curiam) [PDF], in which the propriety of Facebook discovery is explored. This suit in question is a wrongful death and survival action arising from a 2009 cardiac catheterization.  The Plaintiffs’ decedent died the day after the procedure. Two requests for production were at issue in the mandamus proceeding, although we’re chiefly concerned with the second one, which asked the Plaintiffs “to produce copies of any postings pertaining to Arthur or Arthur’s death on any social media site.”

The court described the Plaintiffs’ objection to the social media discovery request as follows:

They also objected to Christus’s request for copies of postings on any social media sites, claiming the request was “an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.” We note that the Lowes presented no evidence the discovery requests at issue in this proceeding were burdensome, asserted no claim that the information sought to be discovered was privileged, nor did they provide the trial court with a privilege log.

The defense filed a motion to compel, which was denied. Accordingly, the defense then sought a writ of mandamus.

In denying the defendant’s petition for writ of mandamus, the court noted:

The other request at issue in this mandamus proceeding asked the Lowes to produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or his death on Facebook or any other social media site.” The Lowes objected that “[s]uch request is an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.”

With respect to request for copies of posts regarding Arthur before he died, the request is not limited in time. While the time period of relevant discovery while Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring document production from an unreasonably long time period … are impermissibly overbroad.” While one of the plaintiffs indicated in her deposition that she had placed posts about Arthur on a social media site, the request at issue in this proceeding was not limited to those posts, nor was it limited to the period after Arthur’s death. While the Lowes are seeking damages for their mental anguish, and the statements the Lowes made about Arthur’s death are within the general scope of discovery, the Lowes did not establish that they had an expectation of privacy in their statements on social media sites. Nevertheless, a request without a time limit for posts is overly broad on its face. We conclude the trial court did not abuse its discretion by denying the request for posts because it was unlimited in time.

(citations omitted).

And there you go. This case suggests that social media discovery is no longer a novelty and that requests direct to social media profiles are just like any other such requests.

That’s probably a good thing.

Fresh From Texas: The Print-A-Gun Project

As a former Texas resident, I can attest to the fact that Texans love their guns.  Now, with 3D printers becoming more readily available, a University of Texas at Austin student decided that the most logical thing to do is print a gun and then share the plans on the Internet.  UT law student Cody Wilson claims he is roughly three weeks away from using a 3D printer to printing a gun, the plans for which he will share online.  It seems a regulatory and legal firestorm will not be far behind.

A 3D printer is a machine that creates three-dimensional solid objects from digital designs.  It essentially combines thin strips of metal or plastic resin to make solid parts.  Once printed, the user can take the parts and combine them to make mechanical objects such as a clock.  This technology sounds pretty cool, but it obviously raises a host of issues in the realm of intellectual property.  However, these IP theft issues are nothing new.  The music industry has been facing them since the era of blank cassette tapes.

But 3D printers also present a whole knew Pandora’s Box of legal problems.  While it has been legal to manufacture firearms for your own use, it has been cost prohibitive and difficult to make anything beyond a glorified toy. Now, people such as Cody Wilson can make a copy of the parts of a gun and then with a little reassembly . . . Voila!  A high quality gun with no serial number that the government has no idea even exists.  No hassle with age restrictions or background checks.  No worries about those silly limits on what types of guns you can buy (e.g., no fully automatic weapons).  Essentially, with 3D printers, individuals can make weapons that completely eviscerate gun control laws.

It also raises interesting products liability issues.  Let’s say someone puts the design plans on the Internet for a Glock 45mm handgun.  Then say someone “prints” the gun and assembles it.   After initially functioning properly, it explodes in the shooter’s hand.  Who faces liability?  Is Glock on the hook if it was a design flaw? Is the printer manufacturer on the hook if one of the parts failed to print properly?  Is the person who uploaded the plans liable if something was amiss?  You get the idea.

This brings us back to Cody Wilson and his “print a gun” project.  Printing guns is not a new idea.  In fact, someone has already created one “printed” gun by printing some parts and combining them with other “non-printed” parts.   Wilson, on the other hand, wants to “print” the whole gun just to prove it can be done.  But then he wants to release the gun design, which has been dubbed “the wiki weapon,” so that it can be easily shared online and recreated.

Wilson told The Daily Texan that the underlying reason for the project was to send the message: “Don’t just sit around like we have been doing for hundreds of years writing a thesis about the perfect utopia or something.  Make it.”  Leave it to a Texan to envision a utopia that involves unlimited access to guns that magically appear from a printer.

Seriously, though, with all the recent controversy around gun ownership and gun laws, it is surprising that this issue has not garnered more attention.



New Kids (Toy) on The Block: Water Balz

We recently reported on the Consumer Product Safety Commission new safety ban on Bucky Balls.  Well, now, there’s a new allegedly “dangerous” toy ball on the market.  This time, it’s a product called Water Balz, marketed by DuneCraft Inc.

These brightly colored balls are about the size of a marble, but they can grow to the size of a racquetball when placed in water.

You can watch the product in action here.

What makes Water Balz so “dangerous?”  Well, much like the Bucky Balls, they don’t mix well with toddlers who treat them as food.  Two Texas parents recently found this out when their toddler ingested one of her older sister’s Water Balz.  When the toddler started having stomach problems, the parents suspected she had eaten one of the Water Balz.  Their concerns grew when they read the label, which explained that the balls expand up to 400 times if placed in water.  The parents took the girl to the hospital, but over the next 48 hours, the girl’s belly grew bigger and bigger, and her symptoms didn’t resolve.  Finally, the doctors operated.  In so doing, they cut open her intestine and discovered a bright-green Water Balz nearly an inch and a half across. Reportedly, the young toddler has fully recovered.

For now, no lawsuits have been filed over Water Balz.  We suspect that will change in the future.  Water Balz again raise the age old question for toys that cause injury.  Namely, whether the injuries are due to some inherently defective nature of the product or poor parental supervision.  I don’t think anyone would dispute that ingesting a chemical ball designed to expand in water creates a substantial risk of harm.  But the real question is, given that the product is not intended for ingestion, is it an unreasonably dangerous product?

Obviously DuneCraft’s CEO, Grant Cleveland, doesn’t believe Water Balz are unreasonably dangerous.  He told Reuters that said he was sorry to learn of the incident, but placed the blame squarely on the parents.  Said he:  “An eight-month-old has no business being near that product. Trying to turn it in to a public risk is absurd.” He also noted that the Water Balz product already carries warnings on the label and that the product is only recommended for kids over 3 years old.

I guess we’ll have to wait and see what happens.  It is not surprising, however, that some attorneys have already put out the APB for Water Balz plaintiffs.

Mechanical Bull Tosses Rider, Prevails in Court

“Man goes to bar.  Man consumes alcohol.  Man rides mechanical bull.  Man falls.”

A familiar story to anyone who has ever visited a Texas-style honky tonk.  The synthesis of alcohol and a simulated rodeo is difficult for anyone to resist.  Unfortunately, the combination can also lead to embarassing falls and, in some cases, injury.

Sounds like the makings of a good lawsuit, right?

In Thom v. Tonk, No. 03-11-00700-CV (Tex. App – Austin, Aug. 30, 2012), a Texas man filed suit against Rebel’s Honky Tonk after injuring his back after falling from the bar’s mechanical bull.  The man signed a release before riding the bull but failed to disclose his chronic back condition to the operator.  Nevertheless, the man rode the bull, found himself thrown from it, and fractured two vertebrae in his back.

The trial court granted the bar’s motion for summary judgment on the basis of release and assumption of risk.  On appeal, the man argued that the release was inconspicuous and that actual knowledge could not replace the requirement that the release be conspicous.  However, the Austin Court of Appeals found that the release’s title, “PARTICIPANT AGREEMENT, RELEASE AND ASSUMPTION OF RISK,” left little doubt as to the document’s purpose.  Furthermore, the man testified at his deposition that he understood that the release was a waiver in the event he was injured.  So there goes that argument.

Notwithstanding his signature on the release, the man also argued that because he did not read the document, he could not have known the risks involved in riding the bull.  But then again, the man did testify that before mounting the bull, he did not witness anyone ride without falling.  And, of course, this is Texas, so undoubtedly the man has witnessed a rodeo a time or two.  In any event, the court was unpersuaded, holding that one is presumed to a know the contents of a contract that one signs.

A difficult sale it is to contend that one did not appreciate the risks of riding a mechanical bull.  Unlike the rodeo, the purpose of the mechanical bull is more than an 8-second ride.  The end-game is the fall.  Never has a mechanical bull operator thrown his hands up after a customer’s short stint on the bull saying, “Ok, Ty Murray.  I give up.  You are too good.”   You get on the mechanical bull to get tossed and to provide a good laugh for the crowd.

Injuries are obviously no laughing matter.  But, in this case, mechanical bull suits belong in the courtroom like a bull belongs in a china shop.

The Journal of Frivolous Tort Claims: Carrillo v. The Dallas Cowboys (Post 2 of 2)

[Editor’s note: This Dallas Cowboys lawsuit was of such great interest to us that we decided that both Steve Buckingham and Nick Farr, fine writers of this site, should comment upon it. Accordingly, today, we offer Steve’s views, while yesterday, as you may recall, we shared Nick”s thoughts. We hope you enjoy reading about it as much as we did.]


The Dallas Cowboys were sued last week by Plaintiff Jannelle Carrillo, who alleged that she sustained third-degree burns while sitting on a bench outside the stadium before a preseason game in 2010. The allegations of the complaint, which is linked here, speak for themselves. The bench in question was made of black marble, and “was uncovered and openly exposed to the extremely hot August sun. The combination of the nature of the black, marble bench and hot sunlight caused the bench to become extremely hot and unreasonably dangerous. No signs were posted at or near the bench warning that it was too hot for persons to sit on.” It is alleged that as a consequence of the unreasonably dangerous condition of the bench, “plaintiff suffered third degree burns to her buttocks,” which required her to undergo hospitalization and skin grafts that have left her disfigured.

Ms. Carrillo’s injuries are no laughing matter. But the fact that she would try to hold the Cowboys franchise accountable is utterly preposterous. The sun is hot. Things left out in the sun, in August, in Texas, get hot. Are we really supposed to believe that Ms. Carrillo needed a written warning about any of this? Please.

But let’s give her the benefit of the doubt. Let’s assume she didn’t know that the sun made stuff hot. It seems to me she would have figured out that the bench was hot approximately 1 split second after she sat down. Why not just stand up? The complaint doesn’t say how long Ms. Carrillo continued to sit on the bench, but I’m willing to bet she didn’t stand up for a while. I bet she kept on sitting there, complaining to her friends and anyone who would listen, “Man, this bench is hot.” Meanwhile, her goose was slowly getting cooked.

Generally, there is no duty to warn folks against open and obvious dangers, and dangers – to the extent this bench presented one – don’t get much more open and obvious than this. It is my prayer to the God of justice and wisdom that this case is thrown out on a motion to dismiss.

Jerry’s World, Sun Subject of New Texas Suit (Post 1 of 2)

[Editor’s note: This Dallas Cowboys lawsuit was of such great interest to us that we decided that both Steve Buckingham and Nick Farr, fine writers of this site, should comment upon it. Accordingly, today, we offer Nick’s views, while tomorrow, we’ll share Steve’s thoughts. We hope you enjoy reading about it as much as we did.]

In 2009, Jerry Jones and the Dallas Cowboys unveiled the billion dollar Cowboys Stadium in Arlington, Texas.  With its plethora of unique and extravagant features, the stadium is the closest thing the National Football League has to a work of art.

Now, it is the subject of a lawsuit.

When we here at Abnormal Use heard that “Jerry’s World” was involved in a civil suit, we just knew it had to be some devastating accident involving the 2,100 inch video screen suspended over 60 yards of the field.  (Seriously, how do they keep that think hanging?)  To our surprise, however, it is not the monstrous video board at the center of the personal injury litigation, but, rather, a bench.  A simple black marble bench.

According to reports, a Texas woman has sued the Dallas Cowboys and Jerry Jones in the Tarrant County District Court after she allegedly sustained third-degree burns on her buttocks after sitting on the marble bench.  The woman, attending a Cowboys scrimmage in August 2010, sat on the bench in 100-plus degree temperatures for an undisclosed amount of time while wearing full-length pants.  She alleges that the combination of the black marble and the hot sun made the bench extremely hot and unreasonably dangerous – a condition about which the Cowboys allegedly failed to warn her.

The words “extremely hot and unreasonably dangerous” immediately conjure up thoughts regarding the infamous hot coffee litigation.  Like freshly brewed coffee, a black object basting in 100 degree temperatures will be hot.  Common sense and logic would suggest that the woman bares at least some responsibility for her injuries.

Unlike hot coffee, however, there may be issues of fact regarding whether the common person should appreciate the risk of sitting on a bench made of marble as opposed to a less heat-absorbent material.  Nevertheless, it seems a bit ridiculous to require a warning that a bench resting in the Texas sun may be hot.  Should they also warn that a bench sitting in the rain may be wet?

Of course, the naysayers will suggest that Jones obviously had the money to purchase a sign or design an external bench out of a non-heat-absorbent material.  But should he have to?  This is a marble bench – clearly not a case of a company skimping on costs by cutting safety measures.

When a $158 million settlement is a “Victory”

On Thursday, January 19, mega-company Johnson & Johnson and the State of Texas reached a settlement for the bargain price of $158 million in a Medicaid fraud lawsuit.  The allegations?  That J&J committed Medicaid fraud by engaging in illegal marketing activities and providing kickbacks to boost sales of the anti-psychotic drug Risperdal, used primarily to treat schizophrenia and bipolar disorders.  The suit also alleged that J&J told doctors that the drug could be used to treat children, for which it did not have FDA approval.  Oops.

And why was $158 million a bargain?  Well, consider what has happened to the company in other states that have also sued J&J on similar theories.  In Louisiana, the Court ordered the company to pay $258 million; in South Carolina, the bill was a cool $327 million.

As reported by the Washington Post, then, $158 million doesn’t look so bad:

“For Johnson & Johnson, it’s a mighty easy result,” said Eric Gordon, a clinical professor at the University of Michigan’s Ross School of Business. “The legal team at Johnson & Johnson are doing high fives.”


“Objection, Form” v. “Object to the Form”

As lawyers, and more importantly, as bloggers, we here at Abnormal Use are huge nerds.  Accordingly, we sometimes lose sight of the forest for the trees and develop silly idiosyncrasies based on our interpretation of legal minutiae.  Today, we write of one such quirk: objections to the form of questions at depositions.

This writer attended Baylor Law School, an institution which focuses on practical education and teaches discovery and deposition techniques in a mandatory third year series of courses.  It was then that this writer learned of Texas Rule of Civil Procedure 199.5(e), which provides that objections to the form of a question must be made at depositions. All other objections are reserved. Form objections shall be made using the following statements:  “Objection, leading” and “Objection, form.”  Note that the terms contemplated by the rules are in quotation marks.  In its own words, the rule itself provides:

Objections to questions during the oral deposition are limited to “Objection,leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, non-responsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court.

Practicing several years in Texas, this writer always made the objections as stated in the rule.  It would have been splendidly nerdy to argue to a trial court that an opposing party had waived an objection by not stating it as it was quoted directly in the rule (which the rule itself states expressly).  What hypertechnical procedural fun that would have produced! After all, the use of quotation marks suggests that the objection itself must be verbatim and not a paraphrase, and the rule provides that “objections are waived if not stated as phrased.”  However, the judicial scorn likely to be prompted by that argument always deterred this writer.

But here is the aforementioned  nerdy pet peeve.  Throughout our career, in whatever state, and in whatever jurisdiction, this writer has always said “Objection, form.”  Call it habit, call it nostalgia, call it blind adherence to an old rule, call it what you will.  Inevitably, though, when the transcript arrives back from the court reporting service, our objection is almost always transcribed as “Object to the form” which, of course, would have been (presumably) waived under the Texas rule.  Perhaps the court reporters simply have some type of button or macro on their systems which inserts a form objection on to the record irrespective of the precise manner in which the attorney articulated it.  That obviously would not work for longer detailed objections, but for basic form objections, maybe that is the reason.  However, we have always wondered why it is that our “Objection, form” never seems to survive the day of the deposition.

Hey, we told you it was a nerdy pet peeve.  You were warned.