Thread by @AkivaMCohen

OK, #LitigationDisasterTourists, let's talk about Mike Lindell.

When we last left our pillow friend (apologies, #WoT fans, I had to), he was being sued for defamation by Dominion and appealing the District Court's denial of his motion to dismiss that lawsuit

A motion to dismiss, as most of you know, is basically a defendant saying to the Court "look, judge, even if I did everything their complaint plausibly says I did they wouldn't win their case, so just dismiss it now"

Until that got dealt with, he didn't have to file an answer

Under the Federal Rules, which govern Dominion's lawsuits because they're in federal court, parties can't start taking discovery until they've had what's known as a Rule 26(f) conference to discuss a joint discovery plan.

In that conference, the parties will discuss things like what the discovery schedule will be, how many depositions each side will get to take, how the parties will treat electronic discovery, etc. etc. Sometimes those discussions involve a lot of back & forth

For the most part, these conferences are collegial and cooperative. Yes, lawyers are adversaries, and there'll be things we disagree on. But a good discovery plan helps everyone - why have your client pay crazy amounts of money to argue about unnecessary things? Also ...

Judges HAAAAAAATE having to deal with discovery disputes, and you really don't want to be the one staking out an unreasonable position at the outset of a case - the judge will come down on you hard and you burn your credibility for no good reason

So usually if the parties have disagreements, its going to be within a range of "things that reasonable people can understandably take different positions on and defend to a neutral arbiter"

Usually

Anyway, after the conferences the parties then file a Rule 26(f) report detailing what they agreed on and where the parties disagree, and the Court then sets a Rule 16 conference to discuss the schedule with the parties, resolve any disputes, and issue the scheduling order

With that background in mind, here are some words I never thought I'd say: For fun, let's review the Rule 26(f) report that some of the parties in the Dominion lawsuits filed on Monday

As you can see, this is a joint report, which is how this is supposed to be filed. Judges DO NOT WANT each party filing its own document; if there are disputes to resolve, we set those out in the body of a joint report ("Plaintiffs say [insert position], Defendants [argument]")

Mike Lindell, intrepid trailblazer of litigation stupidity that he is, declined to join the Joint Report.

It's really hard to overemphasize what a batshit insane decision this is. There is literally zero potential strategic advantage here. It's lunacy

Like, look at that list of defendants. Even litigation disaster superstars Rudy Giuliani and Sidney Powell (who, to remind you, is represented by 2021's Disaster Artist of the year, Howard Klownhandler) knew to join the joint report. Not PillowMike, though

So - and apologies, because the mediation is starting soon so we'll likely have a break before this wraps up - let's dig into this report to see what the hell he was "thinking"

There's a lot here, so let's unpack, timeline form:

8/11/21: Motions to dismiss (filed by all defendants) are denied
11/15/21: Court says "y'all need to talk about a single schedule for discovery in all these overlapping cases"
...

Sometime between 11/15/21 and 1/5/22: The parties meet and discuss the schedule, and someone circulates a draft report covering ALL the cases/parties
1/5/22: Lindell's team says "look, we're appealing the denial of our motion to dismiss, we need a separate report"

Side note:

Denials of a motion to dismiss are not appealable orders in Federal court (they are in NY state, FWIW). You can only appeal from a final order on the merits (or an order that the trial judge specifically says "you can appeal this now")

And so on January 20 this year, the DC Circuit unceremoniously DJ-Jazzy-Jeffed Lindell's appeal out the door lawandcrime.com/2020-election/…

Anywho, back to THIS version of Lindellian procedural nutbaggery, when Lindell said "I get a special, separate report" the plaintiffs respond "no, my dude, look at the rules. Look at the ORDER. We need one report"

That went over about as well as one would expect

I mean, did anyone really think "but the rules say you can't do that" was going to hold Mike Fucking Lindell?

And guys, all of this is crazy but so far it's garden variety crazy. Which is to say "stupid but not particularly notable". So they're going to file two separate reports. The judge will be a little pissed, it'll be a self-inflicted wound for Lindell, but a blip on the radar. OK.

Holy forking shirtballs this is ... I have no words

One last unpacking before I have to run into the mediation:

Lindell thinks he's discovered "one neat trick" for avoiding discovery: just say that you never did a Rule 26(f) conference and that whatever discussions you had were something other than that conference

BRB

OK. Mediator is in with the other side for a while and my team is all doing other things until it's our turn again - have I mentioned my unironic love for Zoom mediation - so let's continue

The extent of Mike Lindell's SCOTUS fetish is really hard to describe

Like ... you appealed a non-appealable order. The appeal was dismissed. And you're planning to file a cert petition in hopes that one of the few cases SCOTUS takes up each year will be "can you appeal from denial of a motion to dismiss"?

Dominion bouncing the rubble here (appropriately so): Lindell's position is fucking nuts *even in the universe where the dismissal order was appealable.* If you can appeal it as a "collateral order" then you still have to do discovery while the appeal is pending, Mike

Screaming

Like, Lindell's clownshoes attorneys seem to legitimately believe that if they file a "meet and confer report" but don't use the magic words "26(f)" or "16" that will mean they don't have to do discovery. I ... what?

Like, did they never watch Hey Arnold!, which I'm reliably informed is the source of this wisdom?

Gonna disagree with my friend Dan here, because "don't do the thing the Federal Rules require you to do" is ABSOLUTELY a "fire the client" moment

There is one law license. There are many clients. You want me to do something unethical or frivolous and I will show you the door. No matter how much I love you as a person or a client, the answer is no and you'll need another lawyer

Anyway, the rest of this is probably fairly standard scheduling order stuff (will read through it just in case, so stand by). But one last thing to note on Lindell. See this subject heading?

There's no reason that shouldn't have just been a "background" section. Except Rudy and Sidney probably insisted that it be listed as "Plaintiff's position" so they wouldn't get angry calls from Lindell for endorsing it

Sure Rudy, Sidney, that's definitely going to happen. But also, this rule isn't talking about summary judgment motions. The question is whether anyone thinks that discovery should wait until after a ruling on a dispositive motion. Summary judgment happens AFTER discovery

This is actually really unusual and also really fucking stupid by Rudy and Sidney (and, if intended to provoke that, smart by Dominion's lawyers). Typically, this section would just say "There is no possibility of settlement" or "this case may settle after discovery". Instead...

Dominion wrote a whole paragraph about how terrible Rudy and Sidney are.

They shouldn't have taken the bait and should just have said "we believe Plaintiff will be more amenable to settlement after discovery"

They chose a different path

I'm not sure how much of a difference it'll make given any other post-litigation statements, but putting "we have nothing to feel bad about at all" in a filing is a CHOICE y'all. One that basically forecloses any "we believed it at the time but no longer" defense.

Again, not that they were going there anyway. But why shot doors before you have to?

Also hahahahaha are you kidding me?

Commitment to the bit level

OOOOOHHHH

A "Coming Soon" trailer!

This is an interesting argument, given that the cases were filed months earlier, meaning Rudy already had a duty to preserve documents. I would not want to be on his side of this issue unless the FBI specifically refused to let him make a backup

And that's the end of the interesting part of this filing.

Stay tuned, discussion of the antivax nonsense coming later today