Lest anyone think that the Court of Appeal lacks the capacity to see through typical litigation bullshit, definitely take a gander at this opinion by Justice Rubin. It brought a smile to my face. (And sorry, dear readers, for the not-so-family-friendly obscenity. But it accurately expresses my reaction to the underlying conduct.)
Geoffrey Mousseau is an attorney in Glendale and represents various nonparties in discovery proceedings, and is also subpoenaed himself, and doesn't particularly want to comply with the requests propounded by Sears. Fair enough. Who really voluntarily wants to produce discovery? Not me, that's for sure. So he tells Sears to pound sand. And not in a nice way; rather, in the typical asshole way that far too many lawyers think is clever or cool. Which is: by being a jerk. (Sorry again for the obscenity. Can't help myself.)
Like many lawyers, Mousseau is comfortable being a jerk (and, for support for this description, even a brief review of the content and tenor of his communications with the other side, which Justice Rubin describes on the third and fourth pages of the opinion, will be sufficient) both because (1) he -- rightly -- thinks that most disputes never go before a judge, and that, even when they do, most of the time, most judges don't care that one side (or both) has acted like a child, and (2) he's got a hypertechnical defense to the production. Since the lawyers for Sears, inter alia, accidentally typed in the subpoena that Mousseau was supposed to deliver the relevant documents to "Mousseau", rather than (as obviously intended) to the document custodian. So Mr. Mousseau (eventually) tells the other side: "Hey, I did comply with your request. I produced the documents to myself. And now the deadline for your motion to compel has expired. Ha ha ha ha ha!"
Except the joke's on him instead. Because the discovery referee (retired California Supreme Court Justice Malcolm Lucas) imposes over $20,000 in sanctions on Mousseau for his conduct. And the Court of Appeal unanimously affirms. Plus, makes sure to end the opinion by awarding costs to Sears.
"Tricks of the trade" are good. Using knowledge of procedure to your advantage is good. But being a jerk is not, particularly when combined with thinking that you're better than you are. Which many, many lawyers do. So it's nice to see Mousseau get his comeuppance here. And, by the way, to also see him blow several appellate deadlines of his own as well, which Justice Rubin is more than willing to seize upon as a means of failing to reach several of the issues that Mousseau asserts on appeal.
I don't at all think that most attorneys who act in bad faith are caught or punished or have their efforts go for naught. Far from it. But the relative rarity of such an event makes it all the more sweet when it happens. As here.
