Biggers gives Wilson’s wheel of fortune another spin – Recusal puts hot potato in rotation

Who was “It” when Wilson v Scruggs became a game of hot potato? US Attorney Jim Greenlee?

It is clear that the Plaintiffs’ have filed this Motion in an attempt to circumvent the Federal Rules of Civil Procedure regarding discovery. As a preliminary matter, Fed. R. Civ. P. 26(d)(l) prohibits a party from seeking discovery “from any source before the parties have conferred as required by Rule 26(f), except … when authorized by [the] rules, by stipulation, or by court order.”

Fed. R. Civ. P. 26(d)(I). The Rule 16.1 (A) Initial Order entered in this matter (Docket Number 53) reflects a Case Management Conference date of September 29, 2009, with an attorney conference of twenty-one (21) days prior. Because that Rule 26(t) Attorney Conference has not yet occurred, Plaintiffs are precluded from seeking discovery from any source at this juncture.

Not Greenlee.  The USA’s Special Appearance and Response to Plaintiffs’ Motion for Preservation and Retention of Documents makes it clear the USA does not want to play.

Maybe the Scruggs Defendants?

The Scruggs Defendants further object to the production of these documents to Plaintiffs because Plaintiffs’ discovery efforts (in the guise of the Motion) are premature. Fed. R. Civ. Pro. 26(d)(1) prohibits all discovery before the parties conduct the Rule 26(f) attorney conference.  The attorneys in this matter have not yet conducted their attorney conference. Therefore, Plaintiffs’ efforts to engage in discovery are premature and improper.

Furthermore, Rule 45 provides the method and procedure for obtaining documents from non-parties. Plaintiffs have not served subpoenas on the United States Attorney or the FBI as part of this action.

Thus, Plaintiffs have not provided the Scruggs Defendants an opportunity to object to the document requests, to seek to quash the subpoenas or to obtain a protective order. Due to the nature of the documents taken by the FBI pursuant to the search warrant, the Scruggs Defendants will likely have objections based on a variety of grounds, including the attorney-client privilege and the work product immunity doctrine. However, until Plaintiffs properly serve subpoenas pursuant to Rule 45 or document requests pursuant to Rule 34, the Scruggs Defendants will not have a chance to determine if objections exist and to raise and preserve those objections.

Not the Scruggs defendants.  The play-by-the-rules Response to Plaintiffs’ Motion to Order Preservation and Retention of Documents filed by the Scruggs Defendants is here.

Maybe Steve Patterson?

Good guess!

Wilson may never see himself in the light of a greedy party; but, he definitely felt the heat from defendant Patterson’s attorney Hiram Eastland – otherwise he would not have needed a 30-day extension to reply.  Wilson’s unopposed Motion for Extension of Time to File Response to Defendant Steven A Patterson’s Motion to Dismiss is here.

Not Patterson – a good guess but not Patterson. If anything, Patterson put an end to the game.

Maybe Judge Biggers?

There has yet to be potato Judge Biggers couldn’t make hot.  Word is, however, he never willingly played a game in his life – and the word to the wise is some folks better sit this one out less he catch on to how they gamed him in USA v Scruggs.  Judge Biggers order of recusal is here.

…No party herein has requested or suggested recusal in this case…Although the undersigned has been acquainted with four of the defendants named herein because they were also defendants in the criminal case, the only personal knowledge he has of them that might form a basis of bias was from the criminal case. Title 28, U.S.C. § 455(a) and the cases pertinent thereto hold that “recusal cannot be based on opinion or bias developed during the course of judicial proceedings.” U.S. v. Jordan, 49 F.3d 152, 155 (5th Cir. 1995). This rule is generally known as the “extrajudicial source doctrine.” Id.

Since the present civil case was drawn by the undersigned judge and one or two procedural orders were entered in it, the situation has now developed that substantive pretrial motions have been filed in the civil case while several post-trial motions involving the same defendants have been filed (currently under seal) in the criminal case, U.S. v. Scruggs et al. This situation results in the same judge having motions before him in two cases, one criminal and one civil, involving the same defendants and on issues that may overlap.

It is for the foregoing reasons that the undersigned judge hereby recuses himself from the above styled and numbered civil case. The Clerk of Court is directed to place this case back into the computerized draw for random assignment to another judge…

Not Biggers. Definitely not.

hot pot“It” can only be Wilson.

Of course, since no one else is left that means Wilson has been playing with himself – some say that can make you go blind:

Pages from Wilson v Scruggs Texas-2

5 thoughts on “Biggers gives Wilson’s wheel of fortune another spin – Recusal puts hot potato in rotation”

  1. Great work Nowdy. After you put the spotlight on Judge Biggers the man suddenly remembered judicial ethics. The more you peel back the layers the more this whole thing stinks.

    John Jones and Judge Howorth college room mates. This is getting better by the second.


  2. Yep, you’re probably right! Jdg. Biggers probably felt the SLABBED SPOTLIGHT on him and all those comments “suggesting” recusal would be the judicially correct thing to do!


  3. Judge Biggers probably knows everything about USA v Scruggs now and would like to sit this one out.

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