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(Sept. 20, 2009) — The indomitable Dr. Orly Taitz announced today that she will reply forcefully to Judge Clay D. Land’srejection of the latest filing in Rhodes vs. MacDonald, on the grounds that it was based on frivolous claims.

Attorney Taitz, the counsel for the plaintiff, said she will seek Rule 11 Discovery:

I will be seeking all means of redress available to me by law. I will be seeking Rule 11 discovery to prove that Obama is indeed illegitimate, my case was not frivolous and not only I don’t owe $10,000 in sanctions, but the defendants owe costs and my reasonable attorneys fees.

Judge Land’s rejection was summarized yesterday by The Post & Email.

Rule 11 Discovery, it just happens, has been recently featured in reports regarding the Digitek Products Liability Litigation, which is winding its way through Federal Court in the Southern District of West Virginia.

In that case Magistrate Judge Mary E. Stanley explained the nature and scope of Rule 11 Discovery, in her Pretrail Order 39, issued on Aug. 26th past:

One of the central purposes of Rule 11is to “deter baseless filing in district court and thus…streamline the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). Under Rule 11, an attorney who files a signed pleading “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that “the claims, defenses, and other legal contentions are warranted by existing law or by nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law,”and that “the factual contentions have evidentiary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b)(2)-(3). Thus, the function of Rule 11 is to demonstrate to the individual signer his personal, nondelegable responsibility. Pavelic & LeFlore v. Marvel Entm’t Group, 493 U.S. 120, 126 (1989); In re Kunstler, 914 F.2d 505, 514 (4th Cir. 1990).

The Magistrate Judge Stanley discusses Rule 11 Discovery in regard to threats of sanctions:

While it is clear that an attorney must conduct an appropriate prefiling investigation before pleading a claim, the defendants’ requests raise the issue of whether parties may engage in discovery to determine whether sanctionable conduct occurred. Whether a court may allow discovery on Rule 11 matters is an area of the law without much precedent. The 1983 Advisory Committee Notes to Rule 11 shed some light on the subject. The Notes provide:

To assure that the efficiencies achieved through more effective operation of the pleading regimen will not be offset by the cost of satellite litigation over the imposition of sanctions, the court must to the extent possible limit the scope of sanction proceedings to the record. Thus, discovery should be conducted only by leave of the court, and then only in extraordinary circumstances.

Fed. R. Civ. P. 11, Advisory Committee Notes. The few courts that have confronted the issue have echoed the concerns expressed by the Advisory Committee. However, those courts decided the issue only after Rule 11 motions were filed. The Court is unaware of any analogous precedent addressing whether parties may engage in discovery to determine whether a party committed sanctionable conduct. The Court notes that in Byrne v. Nezhat, 261 F.3d 1075, 1116 n.82 (11th Cir. 2001), the Eleventh Circuit found that “the district court did not abuse its discretion in directing Rule 11 discovery at the outset of the case, particularly since the court envisioned that discovery would be completed in forty-five days.”

Magistrate Judge Stanley then cites the case law on Rule 11 Discovery in regards to sanctions, and points out that normally the case record is deemed  adequate evidence, and that requests for discovery require extraordinary circumstances:

The leading case on Rule 11 discovery was decided by the United States Court of Appeals for the Seventh Circuit. In Indianapolis Colts v. Mayor & City Council of Baltimore, 775 F.2d 177, 11 183 (7th Cir. 1985), the court upheld the district court’s ruling prohibiting discovery for the purpose of imposing Rule 11 sanctions. Out of a concern that discovery on Rule 11 issues may invite protracted satellite litigation, it held that the record in the case afforded the district court an adequate basis for determining what sanctions, if any, were necessary. Id. The Fourth Circuit has expressed similar concerns about preventing satellite litigation over Rule 11 sanctions. In Kunstler, 914 F.2d at 521, the court stated that to the extent possible the scope of sanction proceedings should be limited to the record. The court in Indianapolis Colts cited to the Advisory Committee Notes that discovery on Rule 11 issues should be conducted only in “extraordinary circumstances.” Indianapolis Colts, 775 F.2d at 183. District courts confronting the issue have similarly expressed the view that limited discovery on a Rule 11 sanctions request is appropriate only upon a showing of extraordinary circumstances. (cites in original omitted here).

Magistrate Judge Stanly then points out that requirments to prove charges that the filings are not frivolous is a sufficient and extraordinary reason for requesting Rule 11 Discovery:

A showing of extraordinary circumstances is clearly a high burden to satisfy. Nevertheless, a number of factors in this matter justify allowing discovery to proceed. First, the defendants have voiced serious concerns about whether certain counsel had sufficient evidentiary support to justify initiating suit. Based upon the allegations contained in the complaints, a prefiling investigation without first obtaining medical and pharmacy records would be reasonable only in an extremely limited set of circumstances. The records would be essential in determining whether the plaintiffs have a colorable claim. “A lawyer is an officer of the court, and he should never file a lawsuit without confidence that it has a reasonable basis in fact.” Kunstler, 914 F.2d at 516. The attorneys in this case are experienced and have the time and the means to conduct a responsible prefiling factual investigation. If plaintiffs in fact failed to possess the records prior to initiating suit, the defendants may have grounds to serve a motion for sanctions using Rule 11’s “safe harbor” provision.

On this basis it appears that Attorney Taitz’ use of Rule 11 Discovery is justified and reasonable.

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  1. Shhhh – don’t look now, but that was a brilliant ruling by Judge Land.

    Think about it.

    He could have granted the TRO and the case would have dragged on through several months of motions before the case could have gotten to the discovery stage. Or, he could have dismissed the TRO on rather dry and narrow grounds and Cpt Rhodes’ deployment to Iraq would have made the case moot.

    Instead, this judge made a ruling that was astoundingly inflammatory. It almost seems like the judge deliberately handed Dr. Taitz an engraved invitation to Rule 11 discovery. Now the case is not about Cpt Rhodes any more. Now the defense attorneys will have to scramble to try to block the discovery (bet they’ll come to hate the judge after Dr. Taitz’s motion for Rule 11 discovery).

    The next few weeks should be oh so very interesting.

    Leon Brozyna
    CW2, USA (Ret)