< link rel="DCTERMS.replaces" href="http://fumare.us/" > < meta name="DC.identifier" content="http://fumare.blogspot.com" > <!-- --><style type="text/css">@import url(https://www.blogger.com/static/v1/v-css/navbar/3334278262-classic.css); div.b-mobile {display:none;} </style> </head> <body><script type="text/javascript"> function setAttributeOnload(object, attribute, val) { if(window.addEventListener) { window.addEventListener('load', function(){ object[attribute] = val; }, false); } else { window.attachEvent('onload', function(){ object[attribute] = val; }); } } </script> <div id="navbar-iframe-container"></div> <script type="text/javascript" src="https://apis.google.com/js/plusone.js"></script> <script type="text/javascript"> gapi.load("gapi.iframes:gapi.iframes.style.bubble", function() { if (gapi.iframes && gapi.iframes.getContext) { gapi.iframes.getContext().openChild({ url: 'https://www.blogger.com/navbar.g?targetBlogID\x3d12407651\x26blogName\x3dFUMARE\x26publishMode\x3dPUBLISH_MODE_BLOGSPOT\x26navbarType\x3dBLACK\x26layoutType\x3dCLASSIC\x26searchRoot\x3dhttp://fumare.blogspot.com/search\x26blogLocale\x3den_US\x26v\x3d2\x26homepageUrl\x3dhttp://fumare.blogspot.com/\x26vt\x3d6298351012122011485', where: document.getElementById("navbar-iframe-container"), id: "navbar-iframe" }); } }); </script>

FUMARE

Law, culture, and Catholicism...up in smoke!

Thursday, June 18, 2009

AveWatch on Mich. Sup. Ct. Decision in Safranek v. Monaghan

AveWatch has a post on the Michigan Supreme Court decision requiring Monaghan to turn over his personal notes to Safranek et al. (These are notes that the plaintiffs first requested on March 10, 2008.) AveWatch also has a pdf of the Michigan Supreme Court opinion.

The 4-person majority (Cavanagh, Hathaway, Kelly, and Weaver) ruled in a short order that the Washtenaw Circuit Court's November 14, 2008 order clarifying that all of Monaghan's personal notes relevant to the lawsuit, regardless of color, must be turned over. Justice Weaver also wrote a concurrence explaining the background of the case.

Three justices dissented (Markman, Corrigan, and Young), with Markman writing the dissent in which the 2 others joined. Bizarrely, the division of the justices is along the fault-line which is usually viewed as liberal vs. conservative (with the 3 "conservatives" in the minority). I suspect that had Chief Justice Taylor (the other "conservative") not lost to Justice Hathaway in the last election, this decision would have come out the other way against Safranek and company. But why did the "conservatives" rule in favor of Monaghan? Markman's dissent wrongly argues that the discovery request is overly broad and unfair, and is part of an attempt by the plaintiffs to publically denigrate Monaghan.

As I was reading the dissent, I kept on thinking to myself that Markman was overlooking the record of the trial court and did not have any sense of what occurred at the trial level through multiple hearings and orders from March 2008 to December 2008. Markman unreasonably fixates on one throw-away oral statement at a May 2008 hearing by the trial court that the notes are on orange paper. After May 2008, the trial court had at least 3 other hearings and issued at least 2 written opinions regarding what notes Monaghan had to turn over. The orders did not mention a specific note color, but instead required Monaghan to turn over his notes regarding AMSL and the Florida controversy regardless of color. Also after May 2008, the plaintiffs submitted other motions and affidavits to the court informing the court of the existence of relevant documents on more than orange paper. So, from May 2008 to December 2008, it became clear to the plaintiffs and to the trial judge that Monaghan had different colored notes that were directly relevant to the plaintiffs' original discovery request in March 2008. It's natural for the trial judge to later clarify that a party must turn over all relevant notes regardless of color, after it becomes clear that there exists relevant notes of more than one color. Does Markman not see this?

It's also strange to see Markman state that the trial court's order requires Monaghan "to produce over 10 years of notes regardless of their relevancy or discoverability." Isn't Markman misreading the trial court's discovery orders? The orders don't require Monaghan to turn over all personal notes regardless of subject - instead they require Monaghan to turn over those notes which are relevant to AMSL and the subject of litigation. I don't see an abuse of discretion.

Finally, it seems that Markman has bought Monaghan's theory - hook, line, and sinker - that the plaintiffs (and all concerned students, alumni, bloggers, former members of any Ave Maria community) are "dissidents" having no legitimate grievance with Monaghan and are unreasonably pursuing a vendetta of public humiliation. In footnote 4, Markman mentions the AveWatch post that reported on Monaghan's infamous "5 down, 6 to go" note and accuses the plaintiffs of providing confidential documents to AveWatch in an attempt to illegitimately humiliate Monaghan. But Markman's accusation is patently false. As AveWatch explains, the plaintiffs didn't send anything to AveWatch; AveWatch only reported on allegations made in a public document filed with the court. Even a cursory glance at the original AveWatch post shows that Markman's accusations are entirely groundless. It is simply stunning to see the dissenting justices directing such a blatantly false accusation at plaintiffs' counsel. What are Markman, Corrigan, and Young thinking?

|