OA526: Updates from Five Cases on the OA Docket

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello, and welcome to Opening arguments. This is episode 526. How about those new intro quotes, Andrew? So good.

0:01:24 Andrew: Each one funnier than the last. I just, oh, really?

0:01:26 Thomas: Yeah, love that Simpsons and or Futurama one. I actually, here's the funny thing. I had, we just, Lydia and I randomly watching stuff. Some of it like, you know, stuff our kids was watching or whatever. No, actually both of it might have been. We came across two excellent quotes for the intro and I was like, oh, I'm gonna put those in. They're both great and then I'm like, these poor patrons, you know, they get to suggest I think it's, is it four or five, I'm already blanking, it's four or quotes once every quarter or something, and I was like, I can't take away from that, you know, so we'll see, maybe I'll find a way to incorporate them in at some point yeah and then all decide if I use them

0:01:52 Andrew: Yeah.

0:02:04 Andrew: Maybe you can nominate them. Yeah. For, for 550. Well, yeah. And, and, well, you know, usually you do look at the, the, okay.

0:02:13 Thomas: Yeah no it's pretty much a dictatorship, I'll

0:02:17 Andrew: All right. Right. Well, then there you go. And whoo and and not just not just failed, failed 64 to 36 um, yeah and I, and by the way, uh, this is another little, you know, teeny look, all the credit goes to uh voters in California who mobilized, went out and did the right thing. Um, I would like to point out that uh we endorsed, endorsed the strategy that finally seems to be the correct Democratic messaging, right? Like a lot of people were still saying, including, you know, Nate Silver and others, saying, I can't believe the Democrats haven't lined up behind a candidate. Well, I could because the last time

0:02:19 Thomas: Anyway hey, big news, the recall failed, thank you so much California voters ah music to my ears, yeah yeah

0:03:02 Andrew: They did that, it confused the hell out of voters. And we got Governor Schwarzenegger. And you know what? Like, I don't know. I mean, I was living in California. I like that Arnold Schwarzenegger is, you know, into a couple of crossover issues now that that put him on my side with respect to gerrymandering and good governance. And he's also lots of, you Know, positive things to say about green energy and the like. Like so, you know, but this was not a and I'm sure we have liberal listeners in California who are like Arnold Schwarzenegger was the worst thing never had. Whatever.

0:03:03 Thomas: It didn't work well look, compared to Larry Elder I mean come on

0:03:36 Andrew: He's not Larry Elder. That's right. Arnold Schwarzenegger was never a Trojan horse Trump supporter. I mean, you're calling him a Trojan horse. He wasn't really disguised. It was I want to ride a plurality of pro Trumpers into the governor's mansion. And and by the way, everything we predicted with respect to Larry Elder was came to pass. He got 47 percent of the vote, basically double his.

0:03:38 Thomas: Yeah

0:04:03 Andrew: Yeah, that's

0:04:02 Thomas: Of the, yeah so I was trying to figure that too, so that's of the people who voted for a candidate though, right, if they

0:04:09 Andrew: Right. And and look, this is the risk on this. Right. So there were as as of this morning, nine point one million votes on question one and at least four million people left it blank on question two. So I get from a mathematical perspective, you're like, well, yeah, Larry Elder got 2.4 million.

0:04:28 Thomas: All had voted for somebody yeah

0:04:30 Andrew: Yeah. If 75 percent of those who voted no and left it blank had voted for anyone, right, Andrew Torrez, then I would have led the field in terms of the alternatives. But the problem is, last is time Democrats did that, people got confused and people thought your vote only counted on the second line if you voted yes on the first line.

0:04:30 Thomas: Yeah and it's just such bad, you know As we already went through, it's such a weird message to try to do It's... look, I've said it before, I'll say it again, it's crap system, let's get rid of it, hopefully this is last time we have to do here's what I want to say about this whole thing. I saw some comments and let, and just in case this is any of you who are like, "Ah, what was all the fuss about, what we were worried about? 60-40 or whatever." And I just want to say, have we not learned?

0:05:00 Andrew: Yeah,

0:05:25 Thomas: Worry about every single election ever. Oh, we should have trusted the polls. We should have been, oh yeah, no, it's easy. The polls say he's maybe barely going to win, so we should just don't worry about it. Are you crazy? Look, it is a binary thingy. Every time something doesn't go our way, it's like, you know, especially in 2016 and other elections, it's like, oh my God, why didn't we worry enough? Why didn't we care about these, uh, you know, these Rust Belt states enough? Why didn'T we do this? Why don'T we do that? And then if we win by any sort of margin, it'S like, wow, what were we worried about? It'S like, no, that'S it. You have to be worried.

0:05:23 Andrew: That

0:06:01 Thomas: You HAVE to be engaged all the time, every time. I mean, it, look, it doesn'T have to take up your whole life. Like, if, as long as you're voting, you're voting. But like, yeah, that'S why we were worried because even the tiniest possibility of Larry Elder taking control of this state, which he would have, as you point out, had the yes prevailed, he would have been the candidate. He would have the governor. That is so disastrous. Again, it's like, you know, when they talk about extinction level events, small probability events that have massive consequences, you need to worry about a little bit. Like, sure, the odds of an asteroid taking out the planet are low, too low, in my opinion, uh, this point in our existence, I feel like I'm

0:06:02 Andrew: That's the thing we were worried about. Yeah, exactly right. Yeah.

0:06:42 Andrew: Thomas

0:06:42 Thomas: Kind of rooting for the asteroid.

0:06:43 Andrew: Is pro-asteroid.

0:06:44 Thomas: I definitely, Oh, a hundred percent. I'm pro asteroid at this point. Um, but you, you better be really worried at the possibility because of the catastrophic, uh. Nature of it. So that's my message. Yes, we were right to be worried about this. It doesn't matter, you know, post-facto what the result ended up being.

0:06:45 Andrew: Yeah, and it's also a great sign for democratic mobilization, right? Right. You know, we are concerned about the historical lack of energy. And and I think this goes to show that, you know, we can convince people that it is still urgent. Trumpism is not dead in this country. And and, you Know, we still have to fight these holding actions.

0:07:07 Thomas: Yeah.

0:07:27 Andrew: So, yeah.

0:07:27 Thomas: And you know, what also bugged me Washington I listened to the Washington post broadcast. I normally enjoy it. They in their thingy about this recall, they, the way things get framed. Sometimes this got framed and like, there's a lot of power in that because it's sort of this, I don't know. It's like this this background thing that goes into the listener's mind of how things are framed. They came out and said it. Oh, well, this recall is, it could be, you know, if it goes the other way, it's a huge indictment of the progressive project in California was how they framed it. Like if it would, if our governor had gotten 49.9%, it would have been a huge indictment of the Progressive Liberal Project in California. And it's like, can we not do their work for them? Even if Gavin Newsom had lost, it would have nothing the F to do with the broader progressive project of California.

0:08:18 Thomas: It would have been because Democrats didn't quite turn out and maybe some people personally didn't like him and didn't like that he went to the restaurant. That has nothing to do with the entire progressive project of California. It's so weird that we have to do these things to frame. It just feels to me like so many people in the media might be interested in constantly 50-50ing things that shouldn't be 50-fiftied, if that makes sense. It is just stuff like this bothers me so much. It would have been an indictment of our governor. That is what it would have done. It wouldn't have been an indictment of his behavior and some things he did that were not too wise. That's what it wouldn't have been.

0:08:55 Thomas: It wouldn't have been an indictment of the entire progressive project of California.

0:08:54 Andrew: No, no, this is right. Right. Yeah. It's like that would be like saying Cuomo's resignation is an indictment of progressivism in New York.

0:08:59 Thomas: God. Yeah. Come on. Exactly. Good, good comparison. Sorry. I was, I was just so mad about that. I had no outlet for it, but we won.

0:09:03 Andrew: Yeah. Yeah, yeah. I'm with you. I'll with you we

0:09:09 Thomas: Recall failed.

0:09:10 Andrew: Want.

0:09:10 Thomas: Now let's primary him in a year or whatever. If you want a more progressive governor, I'm all for it. Although he really has been doing progressive things, um, so you know. Oh,

0:09:10 Andrew: There you go. Good work. Yeah I don't it's really again as a non California resident. I mean it seems like his politics are pretty progressive. It was just Yeah, seemed to do some like tone dumb things. But it

0:09:27 Thomas: Yeah. Yeah. I'm, I mean, again, but like I don't want to take away from that good news. That is fantastic news. I was very worried. Like, I, I took, I breathed a real sigh of relief. Thank you so much to everybody who worked on that, who tried to get the word out. It really mattered. And, you know, it's good that we were worried about it. Okay, today's show, I, I'm calling kind of the Opening Arguments docket, you know, it's all these cases that Andrew has broken down for us in the past that have updates. And these are some, some stuff you really want to know updates to. E. Jean Carroll, Activision, Blizzard, Roger Stone. Oh, so much stuff. So, why don't we get to it?

0:09:35 Andrew: Is it is Yeah. Yeah.

0:09:51 Andrew: I like it Yeah. Let's do it.

0:10:05 Thomas: Oh, quick note. Law'd Awful Movies coming at you very soon. I have it in the can. It's recorded.

0:10:07 Andrew: Speaking Speaking of intro quotes, I think the intro quote we used from this movie was in the very first iteration of, uh, of the, of the, uh, of the show. I could be wrong.

0:10:14 Thomas: Oh, man.

0:10:22 Andrew: I could be wrong, but

0:10:22 Thomas: I think it was like a couple years ago, I feel like. Was it that long ago? Either way. Teresa, phone in. Call my computer right now.

0:10:25 Andrew: Uh one of call us live. Retroactively yeah. Yeah, travel

0:10:33 Thomas: She has a beacon in her mind that goes, and then she'll call.

0:10:33 Andrew: Back in time. Oh, that is so true. Um, yeah, no, one of one of my favorite, uh, lawyer jokes from any movie. And, uh, can we tell them which movie?

0:10:44 Thomas: Oh, yeah, definitely tell them which movie. Maybe they'll want to watch it before they listen.

0:10:45 Andrew: Oh, oh yeah, so we did. I've been, I've been saving this one, uh, because it is literally a childhood favorite of mine. It is the 1987 Judd Nelson vehicle, From the Hip, uh, which uh, is, well, you, you're just gonna have to listen and find out. Does Oh, man.

0:11:00 Thomas: Yeah. Oh, and there's Law, baby. There's good law. There's bad law. It's a huge spread. It's very interesting movie. There's the widest spread of like really good law to really bad law, and I love those ones. Those are the most interesting.

0:11:16 Andrew: And as I, as I said on, uh, in, in the actual recording, this is kind of like, you know, if you're a baseball fan, you love Major League because, like, you know, 80 percent of the movie is just them playing baseball. This is, if you're, if you're a law fan, this is the Major League of law movies. Like, all right, well, that's our plug for from the hip Law'd Awful Movies. So good.

0:11:36 Thomas: All right. Come into a Patreon store near you. Okay, so developments, um, Texas SB8. I, I, you know, I, we've heard some amount of development. Is there even more development all

0:11:50 Andrew: Yeah, so we broke down. I, you know, in some detail, kind of a mini OA on on yesterday's cleanup on all 45, the lawsuit filed by the DOJ that was, in fact, the subject of the press conference that we alluded to during last week's recording. And we talked about a little bit on Tuesday's episode. So you can find out how clever that is. But look, the real problem with that, Thomas, as you pointed out, is great. You can tee up as many really good arguments on the merits as you want. That takes forever. And so the question is, are there efforts in the can to get injunctive relief? And the answer to that question is a happy yes. Yes, there are multiple efforts going on right now. Before I get to those two, I want to read one of them is filed by the DOJ was filed yesterday. So we're getting a chance to break it down for the first time right here.

0:12:24 Thomas: Right. Oh.

0:12:50 Andrew: I want a read from pages seven to 12 of that motion. I'm going to skip over some stuff, but I'm not going to read five whole pages out to you. But that brief that the DOJ filed documents the real status on the ground of the right to an abortion in Texas. And this is terrifying. And I want this to serve as a little bit of a content warning. We're not going to get into any sort of truly grotesque descriptions, but we are going to talk about abortion. We're going to Talk About Abortions in the Case of Rape and Incest. And again, I'm reading from a court filing, so it shouldn't be gross. But if don't want to hear that summary, skip ahead a couple of minutes. So but I think it's really important for us. I know it's one of the things I try and balance on this show all the time is, know, how much is the the legal analysis and how much Is what's the effect on real people.

0:12:55 Thomas: Right. Yeah.

0:13:48 Andrew: And we've been saying, look, this is meant to have a deterrent effect. The DOJ did the hard work of figuring out, of talking to abortion providers in Texas, and here's what they say. Due to the prospect of ruinous liability for clinics and providers, beginning on September 1, abortion providers in Texas ceased providing abortions after six weeks, absent a medical emergency, which likely amounts to between 85 and 95 percent of all abortions previously provided. It. The vast majority of patients seeking abortions in Texas are being turned away right now as you listen to the show. All the while, clinics in neighboring states are receiving panicked calls from patients in Texas and continue to see, quote, large increases in minor patients, survivors of sexual assault, patients with a maternal or fetal diagnosis, and patients with later gestational ages.

0:14:47 Andrew: Some individuals with the ability to travel are forced to seek treatment options in Oklahoma, Kansas, New Mexico, and Colorado, where abortion providers have been overwhelmed with Texas residents unable to obtain abortions in Texas. Women and pregnant individuals are being forced to travel hundreds, sometimes thousands of miles to obtain an abortion under under harrowing circumstances in the middle of a COVID surge. One patient, quote, got in her car at midnight in Texas so she could drive through the night, make it to Oklahoma in the morning for her abortion appointment, and then she had to turn around the same day to travel back to Texas to get to work.

Patients are traveling an average of 650 miles each way. Let that sink in for a a minute. This is a pregnant person during a pandemic driving 10 hours each way to access their constitutional liberties. One minor who was raped by a family member traveled eight hours from Galveston to Oklahoma to get an abortion, and other survivors of sexual assault have to bear the additional burden of taking time off work and arranging child care because abortions are not available in Texas. Patients facing violence at the hands of abusive spouses must discreetly attempt to leave the state of Texas without their husband finding out.

That's all kind of the effect on pregnant persons having to go out of state. It is, of course, having a disproportionate impact. This is from a Planned Parenthood clinic. What I have seen unfold since SB-8 took effect has has been absolutely devastating.

0:15:33 Thomas: Right.

0:16:22 Andrew: The patients that are able to make it to Oklahoma to get their abortion are having to make substantial sacrifices and overcome obstacles, including struggling to come up with the funds. Those who are seeking abortions in the context of intimate partner violence or other family violence are risking more than they already do to travel out of state to end their unwanted pregnancies in the middle of a pandemic. Those with the fewest resources will not be able to obtain safe medical care at all and will be forced to terminate their pregnancies themselves outside the medical system or forced to carry unwanted pregnancies to term. Have to remember, in addition to travel, that the surrounding states often have strict time requirements, right? You've got to go in. You've got to come back.

0:17:06 Thomas: It's not like it's, you know, everything's hunky-dory in the surrounding states of Texas. Yeah, this

0:17:07 Andrew: Yep. So not only is SB8 imperiled the rights of Texas residents, it has had an extreme impact on the rights of individuals in other states, including Oklahoma, Kansas, Colorado, Nevada, and New Mexico. Since SB8, clinics in Tulsa and Oklahoma City have seen a 646 percent increase of Texan patients as compared to the first six months of the year. Texas residents are claiming between 50 and 75 percent of the spots at Planned Parenthood's Oklahoma health centers, causing patients in Oklahoma to face scheduling backlogs of several weeks. And again, remember, in most of these states, far before it's medically necessary, you have a cutoff as to when you can, you know, take a handful of pills versus having to get a more intrusive procedure.

0:18:02 Andrew: And you can can call right now and say, I could come in tomorrow. And they'll say, well, yeah, but because we're triaging all of these Texas patients, you can't come in for a month. Clinics are finding it impossible to hire additional doctors and support staff, given the current threat from SB8 layered atop the challenges of hiring in a pandemic. I want to to speak briefly on the effect on vigilantes because SB8 rewards vigilantes and they are out in force. Emboldened activities, vigilante activities against providers and staff.

0:18:34 Thomas: Is oh, my god. This is like a fictional podcast we might have come up with years ago for like a dystopian, you know, Handmaid's Tale future. This is unbelievable.

0:18:43 Andrew: You hear that. Let me read. This is a signed declaration from one of the officials at a Planned Parenthood Clinic. Relentless harassment, trespassing, conducting drone surveillance, blocking roads, driveways, entrances, yelling at staff and patients, using illegal sound amplification, video recording of staff, staff vehicles, license plates, as well as surreptitiously recording inside the health center and trying to follow staff home. The threat of lawsuits began almost immediately after SB8 was signed into law, including from vigilantes who snuck into a clinic to encourage individuals to report violations and attempted to slow down, harass, and intimidate patients who were seeking an abortion on the evening before SB-8 went into effect. This continued on Reddit forums discussing how individuals could turn in doctors and led to messages to one doctor threatening that doctor's murder. In addition, physician providers licensed in multiple states, this is something I didn't even think about, but it should have been obvious, are concerned about the effect of a potential lawsuit against them under SB8, how that might trigger investigations, higher premiums, right, heightened reporting requirements.

0:18:44 Thomas: Oh, my drones, yeah.

0:20:01 Andrew: Usually, I know this as a lawyer who is licensed in multiple jurisdictions, right? If I get a bar complaint filed against me in Maryland, I would have to inform the District of Columbia, right. So the fact that you might be sued in Texas, even if you intend not to practice in Texas anymore, could follow you around for the rest of your career. So, for example, at Whole Women's Health Clinic, which currently has 17 physicians on staff, only one has agreed to work after September 1st. So that's when we say it's bad. That's what we mean by it's bad. The DOJ in response to that has filed an injunction, is calendared for October 1st.

0:20:46 Andrew: So it will not be heard for 15 days. 23 states have joined in, have filed an amicus brief. The argument is that the law uses the threat of civil liability to cut off the supply of post-six-week abortions in the state. It creates a widespread class of potential plaintiffs who might file harassing lawsuits, stacks the decks of such suits in favor of the plaintiffs through the one-way fee-shifting system that we talked about and the systematic limiting of alternative defenses that we also talked about, and extends liability to anyone who plays a role in facilitating a prohibited abortion. Thus far, the statute has had the desired effect of deterring abortion providers. That's what I just read to you. So long as providers are chilled from performing, inducing or attempting these newly prohibited abortions in Texas, state courts will not have occasion to rule on the constitutionality of the statute in an enforcement proceeding.

0:21:36 Andrew: And even if they decide to reinstate their services, they could at most prevail in an reinforcement dispute against a single private vigilante plaintiff leaving other providers in legal limbo. That is the balance of of harm on the merits. The obviously irreparable injury is is clear to show here we have the violation of a constitutional right. The question is, do courts have to jump in and act now? And the argument for acting now, notwithstanding the Supreme Court's refusal, is, I think, strong. But, you know, we will see what the courts do. The DOJ is not the only party trying help here. We also have abortion providers and reproductive rights groups seeking what I would call piecemeal injunctions, right?

0:22:25 Andrew: Right. So, for example, Planned Parenthood, as of September 13th, got an injunction against the Texas right to life to prevent them from being plaintiffs under this law. Now, that only applies against the Kansas right to live group. So this is why I'm calling it piecemeal. Right. Like it's not we can't say you can freely get an abortion, you know, any particular geographic space in Texas. But throughout Texas, you know, we talked about how the law empowers these vigilantes to seek out the infrastructure of these big pro-life groups. Planned Parenthood has gone on the offensive and said, and so there's a finding as a matter of law, right, which, in this case, the Texas Right to Life, agreed, right?

0:23:12 Andrew: Right. To the entry of this preliminary injunction, which is the thing you do when the judge is like, hey, if you don't agree to this, I'm going to rule against you. Right. And the court finds that the plaintiffs, that is Planned Parenthood, will be irreparably harmed. Plaintiffs reasonably fear that defendants that the right to life group and those acting in concert with them will file claims under SB8. And so the injunction orders Texas Right to Life, its president, John Segoe, and their officers, agents, servants, employees and attorneys and all persons in active concert and participation with them, including all of those persons listed in a sealed Exhibit A, we'll talk about that in a second, are enjoined from instituting private enforcement lawsuits against the plaintiffs.

Um, that becomes effective immediately and it lasts until, uh, the lawsuit is resolved. It's set for trial April 4th, 2022. So between now and April, Texas Right to Life cannot serve as plaintiffs and the hearing to unseal that order, right, uh is September 30th. So end of the month, we will find out if that gets unsealed and that there are, you know, there could be other pro-life groups that are listed on that Exhibit A. They could be numerous. So

0:23:19 Thomas: Hmm.

0:23:53 Thomas: So where did, sorry, where did that come from? How did that happen?

0:24:34 Andrew: Is a state lawsuit. It was filed in the circuit court for Travis County, which is the 250th judicial district. And it is a statewide Texas injunction on behalf of Planned Parenthood against Texas right to life. And there are 100 John Does added in the complaint. We don't know who they are, obviously. Those are those acting in concert with the Texas right-to-life.

0:24:34 Thomas: Oh, okay. What was I guess it just what was the timing of this? So, like, right after the shadow docket thing? Yeah, good, uh-huh.

0:24:59 Andrew: Yep. On September 3rd, yeah, immediately after SB8 went into effect on 9-3, Planned Parenthood went in, got a temporary restraining order and said, hey, don't let these—they have publicly said, as soon as this goes into effect, we're going to start bringing lawsuits, so don't Let them do that. And a court said, yeah, we agree with that. We're granting that temporary restraining order, which is a pretty good sign that you're going to get a preliminary injunction. Yeah.

0:25:13 Thomas: Yeah.

0:25:32 Thomas: Well, that's nice, yeah, I just wasn't sure if that, whatever that court is, would be like, well, the Supreme Court kind of is letting this happen, so we're okay.

0:25:42 Andrew: What the shadow docket taketh, the shadow docket can also give, right, in the sense that the fact that it is not binding has let this Supreme Court engage in, yeah, yeah.

0:25:53 Thomas: So my suggestion like the Cuban Missile Crisis, just ignore it. Okay.

0:25:57 Andrew: There you go.

0:25:58 Thomas: Cool. Well, I'm glad that happened so quickly, right?

0:26:00 Andrew: Yeah, me too. And there are others out there. So if you know of abortion clinics, reproductive health services that have filed or won injunctions, feel free to email us, let us know. All of this is to say, right, we talk about the status of the law and when it comes to SB8, that's a lot of doom and gloom, um, this is part of how, how people fought back, and, uh, and I'm proud of

0:26:27 Thomas: I mean, but again, this is patching together, putting band-aids on stuff because the court is exactly but still, it's I mean, it's amazing that people are doing that. Don't get me wrong, it's just, don't, I hope people don't give the impression that it's solved or anything. It's juste that this is, this is like they're trying to cut off. It's interesting, it's like a supply chain, uh, attack or something. It's, it's like, so you're trying to enjoin anyone from being those kind of bounty hunter people.

0:26:28 Andrew: Yeah. Yeah. Yep on gaping chest wounds, yeah, no question, yeah. Yeah. No, yeah. Yeah. Right.

0:26:52 Andrew: Yeah.

0:26:52 Thomas: Okay. Interesting. But obviously that's a whack-a-mole type strategy.

0:26:52 Andrew: Yeah. And obviously it's a whack-a-mole, that's exactly, that's good way to put it. But, but let's whack those moles where we can.

0:26:58 Thomas: Yeah. So, but again, I'm glad. Yeah. That's good. That's whack some moles. Damn it. That's awesome. It's important. One thing that we should all have learned for the last at least five years is it's important to have the fight and not just let people do crap without facing any consequences because then it just gets worse. You know, I did want to say real quick, I know I just bashed the Washington Post podcast a minute ago. However, this is why in my mind, I think it's good to try not to like throw the baby out with the bathwater kind of thing. There also was a really excellent episode yesterday.

And it was about, this was something that living in California, this California privilege, and I have to constantly be reminded disappointed, um, how things are in, in other places, you know, like conservative places, because they did an episode that was about how it's not, you Know, we, we all focus on the courts and me, especially I focus onthe court and the state of the law and all that kind of thing.

But the truth on the ground is even if abortion were fully, you Now, legal and available in many many places, the only OBGYN for miles and miles might be somebody who doesn't believe in abortion and therefore gives terrible medical advice to people.

0:27:13 Andrew: Yep, absolutely.

0:28:11 Thomas: I, it was, this was a pretty horrifying episode in my opinion. Um, so if you want, you know, check it out or don't, but the, the thrust of it was that like, yeah, it's not just about the law. It's also about there? There are these batshit pro-lifers who give terror. This dude, this Christian fundamentalist is the only OBGYN for miles and miles. And so he just tells women that abortion is not a good idea or whatever. He'll just say, even if it's a serious health problem. And the whole story was about a patient who basically had to give birth to, a baby that was doomed to die within minutes of birth. And all because this OBGYN essentially, you made her do it. It's absolutely horrifying. It just goes to show that it's, it's not all about what the bottom line is in terms of the courts, you know, there's also a truth on the ground, regardless of of the state of the law. And it's it's that we have so much work to do, I guess, is the message there.

0:29:00 Andrew: Yep. Yeah, yeah, that is true.

0:29:09 Thomas: All

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0:30:06 Andrew: They no longer make me read the copy of Moink, Moink. I'm so happy, I just got Moinked. They do still have the bit in here about Shark Tank. Look, I don't know what Shark Tank is, but Moink was founded by an eighth generation farmer who was featured on Shark Tank, and host Kevin O'Leary said it was the best bacon he's ever tasted. I don't who that is, but they're 100% right. Bacon is amazing. Jamie Simonoff, creator of the Ring Video Doorbell, invested in Moink, the thing, anyway, so here's what I want you to do, head on over moinkbox.com slash OA, go there right now listeners, you will get free bacon for a year, and the bacon is amazing, that's one year of the best bacon you will ever taste, but limited time offer, M-O-I-N-K-B-O-X.com slash OA, that's M-O-I-N-K b-o dot com slash o a get it the bacon's amazing the meat's really good good, you'll love it.

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0:31:50 Thomas: Decisions that once made change lives forever and are almost impossible to reverse. That's that's what I love about suspect. It hits on that point that we make on this show too, that it's not just about the police, it's also about prosecutors and prosecutorial discretion and how big of an effect that can have on our justice system. And who doesn't love a good true crime podcast that also makes those points. So make sure to listen and subscribe to Suspect. Follow Suspect on Apple Podcasts, Amazon Music, or you can binge all nine episodes ad-free by subscribing to Wondery Plus in Apple Podcast or the Wondry app. All right. E.G. and Carol, is this going to be better news?

0:32:33 Andrew: Yeah this is this could be better news. So look, we broke down that the Biden Department of Justice took the Trump DOJ position back in episode 420. Oh, I paused for a nice, but that's OK. And we explained why that was not surprising and and not, you know, a betrayal of progressive principles,

0:32:35 Thomas: Oh, good.

0:32:46 Thomas: Nice.

0:32:55 Thomas: Are you sure? Because Twitter leftists are positive that this was a sign that both sides are the same.

0:32:56 Andrew: Yeah. That legal argument that the Westfall Act applies to the president is on appeal to the Second Circuit. So that's an interlocutory appeal for those who were wondering on our from the hip breakdown of that potential joke. That means that the trial is still taking place. Right. So Trump's lawyers, the the doofus Mark Kasowitz, sent day letter motion requesting a stay on December 10th. E. Jean Carroll's lawyers opposed that on the 17th. Right. Trump's lawyers replied on December 21st. And I have to tell you here, I mean, Mark Kasowitz is a doofus and a moron, but the argument is probably a pretty sensible one, right?

0:33:51 Andrew: Like if the Westfall Act applies, Trump is out as a defendant. He'll be replaced by the Department of Justice and the Department Justice will move to dismiss the lawsuit and the case will get mooted. So this is precisely the kind of situation in which you would expect a court to say, yeah, we're going to stay all proceedings. This court did nothing. It took no substantive action whatsoever. Now, there were docket orders granting motions to withdraw by some of counsel in early January. But those are, You can have your clerk do that. There was no substantive action in this case until yesterday. And yesterday, September 15th, more than 10 months after that initial letter got sent, in a text-only order with no opinion, is a single line on the docket that just says, the motion is denied.

0:34:46 Andrew: So what does that mean? That means the court is going to schedule a scheduling order in this case. And that scheduling order will call for, will set deadlines for discovery, for dispositive motions. That means while the issue, the legal issue, is pending before the Second Circuit, E. Jean Carroll, through her lawyers, are free, her lawyers are free to seek discovery from the President of the United States in connection with her defamation claim. And as soon as the court enters that scheduling order, I promise you, Roberta Kaplan, that's E. Jean Carroll's lawyer, will be firing off discovery requests. And we want her to have those and we will want to see those.

0:35:31 Thomas: Huh.

0:35:32 Andrew: So when you say good news, that strikes me as pretty good news.

0:35:32 Thomas: All right. Nice. Are we on to Activision?

0:35:38 Andrew: We are.

0:35:39 Thomas: Oh, wow. I was going to say, yeah, you're always bullet points or sub items. Like I'm always wary of more than two of them on the OA schedule. Yeah, I

0:35:49 Andrew: You should be. You shouldn't be. But I think I've planned this one out pretty well. Yep.

0:35:52 Thomas: Know. I'm impressed. Okay. On to point number three, everybody. Update number Number three, Activision Blizzard.

0:36:00 Andrew: I'm going to link in the show notes a New York Times piece on the new executives that has been forced to hire as a result of the lawsuit. It is a good illustration that meritorious lawsuits that capture the public's attention can have impacts even before you get to court. Right. The fact that this laid out, you know, was from a government agency and laid out very plausible allegations meant that the company couldn't just say like, yeah, well, you Know, it's a lawsuit, like, eventually, if the court tells us to change something, no, like they had to hire, they brought in what looks like, you you know, a genuine effort in improving diversity from the top down.

0:36:45 Andrew: We'll see. All right. Not going to talk about that because it doesn't involve a legal document. I am going to talk about what happened late last week, which we learned about because some of the copies of this have been leaked. These documents are not yet available, but folks who have seen them have talked to the press. So on September the 10th, the Communications Workers of America Union filed a, quote, signed charge against employer. And what that is, is that's a complaint under the National Labor Relations Act. And they filed it with the NLRB, the National Labor Relations Board. Again, that's not available. I link you to the page. And as soon as that That document becomes available to the public, we will get it.

But what reporters who have seen the document have said, says it says, is that the employer, Activision Blizzard, has threatened employees that they cannot talk about or communicate about wages, hours, and working conditions. And the complaint accuses Activision of illegally telling staff they can't discuss ongoing investigations, threatening or disciplining employees because of their activism, deploying surveillance and interrogations, targeting legally protected activism, and maintaining a social media policy that infringes on workers' rights. So again, that's a complaint. They're allegations. They are not yet proven. It certainly seems plausible that when the company is the subject of a major investigatory action, as is Activision Blizzard, that the things that were the subject matter of that complaint might be things that internally you could see folks in the decision-making chain going, and, yeah, well, it says, you know, that it has the allegation, for example, that women at Activision were, you know, paid less and had fewer promotion opportunities.

0:36:51 Thomas: Oh, God.

0:38:41 Andrew: Well, you can imagine being a female programmer at Activison, the news breaks. I would want to talk to my colleagues, right, and say, hey, is this me, right? And, you did the company illegally crack down on those kinds of communications? Are they doing more to try and deter their employees from cooperating with the internal investigation and to try and create a more favorable record for itself in litigation? We'll see. So, like I said, that was filed on the 10th. On the 13th, the National Labor Relations Board issued initial letters to both the union and to Activision Blizzard saying that what they're doing, this is the way the process works, is they take an initial cut. Right. So they look at it. They're like, OK, we read this complaint. Now we're going to gather some information and we're gonna find out, does this rise to the level of a case?

0:38:50 Thomas: Yeah.

0:39:38 Andrew: Right. And look, is an important gatekeeping function of executive branch agencies. Because Right. As we know, like, you know, the complaint system can be abused. Right. Like I I had a client who fired somebody the summer of last year. And that person said, Know, went to the Maryland Department of Health for for malperformance. Right. And went to The Maryland Department Of Health and said, I want to be a whistleblower. Or they fired me because, you know, they have terrible covid policies and I was going to blow the whistle on the fact that they don't make their employees wear masks. And, you know, I mean, my and what we had to do was provide evidence, which was readily available, that we did, in fact, have

0:39:51 Thomas: Sure. Yeah. Which

0:40:25 Andrew: A robust mask wearing process that we had, you staffed the the premises with disinfectants and and so, you know, and that we're complying with the best requirements under Maryland law. So So, all that is a way of saying if if this is, you know, something sneaky by the union, then that's why the NLRB gets to investigate it. Right.

0:40:26 Thomas: Is how it should work. Yeah.

0:40:47 Thomas: Mm-hmm.

0:40:47 Andrew: Activision Blizzard is informed of what those charges are, and the NLRB will investigate and say, hey, turnover documents related to X and, you know, help us respond to whether we need to come in. So that's What's new with Activision Blizzard, we'll continue to watch.

0:41:05 Thomas: This show is brought to you by Xchair. If you've ever been behind the wheel of a high performance sports car and you realize how much better a car can be, you'll never want to settle for a regular car again. I feel the same way about my Xchair from the moment I first sat down in it. I understood why many consider Xchair to be the finest office chair in the world. Indeed, folks, I am sitting in my X chair right now and I love it. Can your current office chair give you a massage while you're working? Mine can. Can Can your current office chair heat up or cool down? My X chair can. It's all in the LMAX massage and temperature regulation, exclusively designed and made for X chair. And once you fill the customized report of X chairs patented, dynamic variable, lumbor, or DBL, back will never be happy in another chair again.

0:41:51 Thomas: Take my advice. Try Xchair for yourself, risk-free, for 30 days. Once you realize how much better your chair could be, you'll never go back. I promise. Go Go to XchairOA.com now. That's the letter X, chair, O-A, dot com, for $100 off your order. Xchair has a 30-day guarantee of complete comfort. Xchair OA dot com. All right. Well, number four, our favorite, Roger Stone.

0:42:20 Thomas: Ah, man. That guy. That effing guy. Did he die or something, please?

0:42:18 Andrew: Oh, Roger Stone. That guy. Uh, truly Oh, god, we will hold just a victory lap when that, I mean, you know, the guy who is the only person, uh, who truly is the villain in his own story. Um, you may have seen the news on Raw Story and elsewhere that Roger Stone was served with a complaint in the middle of a radio interview, which is, of course, hilarious.

0:42:43 Thomas: Yeah. Yep.

0:42:49 Andrew: He was live on the air with Real Talk 93.3 St. Louis. By the way, don't ever listen to that. Anybody who would have I feel safe in saying any radio station that would ever have Roger Stone on is not worth listening to.

0:42:59 Thomas: Yeah. Agreed.

0:43:04 Andrew: They were doing an interview with him about the twenty twenty four presidential election. And Stone was explaining why he thinks it's imperative for Trump to run in 2024 when he was served by a process server at his front door with a with the latest lawsuit. That photograph had the case caption on it. So I was able to pull and figure out which lawsuit this is, um, and this is the Capitol Police Department, the named officers, uh complaint regarding the January 6th insurrection. Um, it seeks claims under the KKK Act, uh, it seeks claims for negligence, for assault, um, and it is filed against Trump, against Roger Stone, against against the Proud Boys, the Oath Keepers, the Three Percenters, everybody.

0:43:53 Andrew: It's a it's a huge laundry list complaint about everybody who was involved in the January 6th insurrection. Couldn't happen to a nicer guy at a better time.

0:44:04 Thomas: Yeah. And it reminds me of, there's an old Simpsons, not that old, but kind of old. And I think it was like a really, Lisa had like a Really Horrible Gymnastics Coach or something. And they're like, yeah, he defected during World War II to Germany.

0:44:20 Thomas: It's like, that's the Roger Stone. Down. All the Trump stuff happened and he defected to Trump. He went more Trump during all the Trump stuff and the cases and the indictments and the impeachments and all that. It's amazing.

0:44:20 Andrew: So, yeah, wait,

0:44:35 Thomas: Tripled down.

0:44:34 Andrew: You know, that's based on a real Olympics coach, right?

0:44:37 Thomas: Oh, really? No, I didn't know that.

0:44:37 Andrew: Right. Yeah. Yeah, no, he was the I want to say the Romanian Olympics coach. And then all of sudden, like Romanians started winning, you know, gymnastics competitions. And so he defected to the United States and then like apparently is was just, you know, like Cobra Kai levels of brutal to, you know, to these young girls. And well, yeah, it's it's but it's gone. I think he's dead now. So it's it's So there you go. That's Roger Stone and a brief 80s gymnastics reference.

0:45:00 Thomas: God. Well, that's not funny anymore. Yeah. God, if it ever was. That's good. Well you weren't lying. We're on point five, Final point, I guess.

0:45:16 Andrew: We're on point five point five. The most recent one. Right. Tuesday's episode about crazy sovereign citizen Pauline Bauer. A bunch of stuff has come in since we recorded that episode. So we broke down her one hundred and fourteen page motion to dismiss question mark. How long do you think the U.S. attorney's office opposition is?

0:45:41 Thomas: Well, as always, one page or a million pages. Either they did a whole podcast on it, like some lawyers I know, or they just said, this is nonsense, and it's one paragraph.

0:45:45 Andrew: Yeah.

0:45:55 Andrew: Yeah, it is five pages long and the substance of it is really just these two paragraphs. And I want to read this because I every once in a while I got to write something like this. And I know the delight with which lawyers who drafted this, probably James D. Peterson from the Virginia office of the Department of Justice, got to write regarding defendant Bauer's 114 page motion to dismiss. Dismiss, it is hard to discern any understandable or coherent claim in the pleading. Boiled to its legal essence, defendant seems to argue that the court has no jurisdiction over her because, one, it has never been her intent to be a U.S. citizen, and two, defendant never intended to live in the District of Columbia.

0:46:45 Andrew: And then it just says, in any event, defendant Bauer's motion to dismiss is meritless. See 18 U.S.C. 3231. 18 U.S.C. Section 3231 provides that the district courts The of the United States shall have original jurisdiction, exclusive of the courts of the states, of all offenses against the laws of the United States. Defendant Bauer is charged with federal offenses, um, and that's it. And by the way, uh, that's gonna win. So, you know, sometimes less is more, particularly when you're dealing with nonsense. Um, again, I struggle with sovereign citizens, because I take delight in the just batshit crazy bug nutteriness of their pleadings, right? Like I was talking about this on Twitter earlier today, like these are the people who fear the globalists of the one world order and the shadowy cabal of international bankers. But when you ask them for citations to authority, right, they're always saying like, well, you know, yeah, I can disregard U.S. law because of, you Know, the Nuremberg Convention or, you You know, the the Magna Carta or what have you. And you're like, wait a second. Did you just suggest that like international law ought to trump U.S. statutory

0:47:11 Thomas: Yeah. Yeah, yeah,

0:47:55 Andrew: Law? Like there's no consistency whatsoever. But I just struggle because right. Because it's funny and it's hilarious. But at the same time, right, two real problems. Number one, it radicalizes people into right wing terrorism, including thinking that sitting judges are members of a cabal to overthrow the government, and plenty, right? Like we've talked about this before, but there are cases of thousands of violent extremists with these kinds of beliefs. And number two, it goes really badly for them. And I kind of wish that it wouldn't, right? So here's an illustration of that. The government has moved to revoke Pauline Bauer's pretrial release on the same day because, right, on August 12th, a home assessment was attempted at her residence in Pennsylvania, and she was asked to come outside so that a home assessment tour could be completed as part of her pretrial release, right?

0:48:01 Thomas: Yeah.

0:48:51 Andrew: Remember, she has standby counsel, that is a hardworking district attorney, Carmen, who secured pretrial release for this person. That is subject to certain conditions.

0:49:02 Thomas: Talk about a thankless job.

0:49:04 Andrew: Yeah. And it was explained to Mrs. Bauer on the phone that she is on pretrial supervision and there are certain conditions of the release she must abide by. And the judge ordered her to allow pretrial officers to tour her residence. Ms. Bauer stated that it was a directive by the judge and not an order, so she did not have to follow it. I'm sure that's word for word what she said, right? She also stated that she did Not sign any conditions that she needs to abide by. She indicated that the court are depriving her of her rights and quote, this is one more charge against you, end of quote.

0:49:38 Andrew: So, Yeah, that's not, it's going to go real bad for her. This is somebody who could have been on pretrial release is going to have that revoked, this is somebody who could have struck a deal for uh, pleading guilty to a misdemeanor, which would have resulted in probation and no jail time, uh, and instead she's going to spend time in prison and, um, you know,

0:49:58 Thomas: And you're saying this is a bad thing? Look, I, you Know. You know, we had a number of comments about this too. And I wanted to ask you about this because one of them, I think a lot of people are the impression that it's like, well, look, sure the sovereign citizens, it looks nuts on its surface, but it's really, you, like, they just have the particulars wrong, you know, they're just wrong about the particulars of the law. And I just thought that was just not, I don't know, I just, I I very much disagree with that. Like, I think a lot of people are trying to make this into "no, it's just an education problem" because, you know, the law is really confusing to the average person. And these people are just misinformed. And it's like, no, like, sorry, I think you could say anything is that, like, look, the earth being flat, you know, it's just the particulars are off there.

0:50:00 Andrew: It's a, it's Yeah,

0:50:50 Thomas: You know, flatness exists and the earth exists. They just mix those up. It's like now there's a lot more to this than that. It'S not merely people being misinformed, we have a problem with conspiracy theories, and theorists in this country. And there's A lot that goes into that. And it's not a good thing. It's not just a simple mistake. I don't think like it's a it's a real problem. And a lot of it, I think, is very sinister. It comes from the idea, as you point out, comes from very racist roots. It often involves, you know, cabals of Jews controlling the the world and stuff like that. Like it's Not as simple as like, oh, it's just they got the facts wrong on how the law works. What was your take on on those comments that we We saw.

0:51:30 Andrew: This is why I struggle with it, right? Because I, I agree with you with everything that you're saying right there. Do right not mean to suggest that these are not beliefs that are both that are nasty and dangerous. I, I guess I just struggle with the fact that it is that, that people like Pauline here are way down the food chain from the people who are profiting by selling, you, use this, you know, I will show you how to file the UCC Section 1-203 lien to, you know, pay zero taxes. And it just, there's, I'm A softy You Know, okay.

0:52:10 Thomas: All right. But I guess. But look, at the same time, the people who should finally have consequences coming. This is an insurrectionist, Andrew. Like this is this is an insurrection who thought they could do a one weird trick to get out of any consequences. And I'm guessing this is a white lady. I've just just a guess. So, like, I don't know. I don't a lot of sympathy for like white lady insurrectionists who thinks they can get out of any consequence for an insurrections because, you know, the law doesn't count for them. Sorry. I don't, I, I've got a lot of sympathy and empathy for people. She's low on my list is all I'm saying.

0:52:46 Andrew: I agree with you, yeah, you, you have you have persuaded me, Paulie.

0:52:49 Thomas: Well, and here's the thing. Someone was saying like, oh yeah, the law is hard. The law is heart. What did she actually need to know, Andrew? She was charged with some misdemeanors. She has an incredibly hardworking and good attorney who Bauer person, what's her name again? Karen, Karen, Karenson, Karen Karemson, Pauline, whatever. All she, she didn't need to know anything about the law. All you need to know is yes, I'm sorry. I did that. And then her lawyer was like, all right, here's what I've done for you. Awesome things. Hasn't her lawyer done amazing work?

0:53:07 Andrew: Yeah. Yes.

0:53:23 Thomas: That's all she needed to know. Yes. Thank you for your amazing help. I was an insurrectionist. I I probably shouldn't have done that. I will serve meaningless amounts of nothing, like whatever it would have been, probation. Like that's, you don't need to know this, this idea that it's like, oh, the law is hard. It's, it's hard. So therefore, you know, this makes any sense. Like, no, you do need to do You don't, guilty of a couple of misdemeanors and you have an amazing lawyer defending you.

0:53:47 Andrew: No, I'm, I've persuaded you're, you're right. And I'm wrong. I just, it, it. There's something, it just, it's because the show is about informing and persuading people that I sort of feel like when I look at that and I'm like, man, if, you know, if somebody could just sit down and show her like, you, don't, you're filing baloney and people have lied to you, uh, but Yeah, yeah, you're right, you're right, well,

0:54:11 Thomas: Oh, precious Andrew. I think this is that though. Like if someone believes in Graph, doesn't believe in gravity, like, I mean, you can argue all you want, you know, or maybe they, uh, jump off of something that's, you know, 10 inches high. I'm not saying jump off a cliff. I'm saying jump off a little, this, she's not getting the death penalty, you know, like I, I'm nothing toss her off a bridge, but if somebody doesn't believe in the gravity, be like, all right, jump from that, uh, you know, foot and a half, jump for a foot and a half, see if we see what happens. And you know, maybe, maybe that's the only way, maybe you can't argue someone into gravity. They just have to feel the gravity. No.

0:54:17 Andrew: There You Go, maybe

0:54:47 Thomas: I don't Know, or Nothing Honestly, or probably nothing will ever change your mind. Like, honestly, that's, that this is more part of the, the, the conspiracy against her, I'm sure.

0:54:47 Andrew: I Yeah, no, I'm, I'm Yeah Well That's what is really sinister about sovereign citizen beliefs is when disproven, you don't don't say, oh, oh, this complete raft of nonsense that I've been taught doesn't work, you say, hmm, the fact that this didn't work means that this person is now violating their Oath And they must be part of their, they're part of the deep State, blah, blah, blah.

0:55:16 Thomas: Yeah I Didn't Put the Right punctuation in my name, maybe I should add another dash, or Whatever Well

0:55:21 Andrew: Yeah Uh So, anyway I agree with you, I Agree with You, yeah

0:55:29 Thomas: You Don't You don't, that's okay, if you disagree, I get it, you're softy, it's fine. I'm a softie too. I just, you know, softie toward other, more toward other people is all. And, and also, I don't think this is that particularly bad. I mean, it doesn't strike me as, I mean, sure, she's going to be in custody, right? But like, what are we talking here?

0:55:46 Andrew: No, it will not be a lot of time, you're, you're right, and I'm wrong, and you were, were right to call me out. Yep.

0:55:51 Thomas: Well, let's, I, I'm amazed. Look, you're right in how well you plan this episode, Andrew. Five bullet points. I doubted you, you now, and I was wrong to doubt you. So well done on the, on the updates. That's the opening arguments docket. And those were all, it was amazing. Five cases with updates, you you know, that are pretty, that we've, that we've tracked throughout the, I don't know, last several years, I guess, of time that those cases include. So, super cool to get those updates. Let's, uh, let's, let'S move on

0:56:02 Andrew: About

0:56:18 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:24 Thomas: And now it's time for T3BE. Uh, you know what? I don'T even need to hear the question, Andrew. I'M just going with the first answer that I said and not the second one that I switched. That's my answer. Final answer was the first one that I said.

0:56:33 Andrew: All Right Thomas And, and I told you we were done. Done with Blackacre, and we are, in fact, done with Blackacre, Thomas. A plaintiff filed an action against a defendant in federal court seeking damages for negligence After the defendant lost control of his car on a snowy day and collided with the plaintiff's car. The defendant has an insurance policy that will pay for the defense of the defendant's claims, as well as most or all of the damages that the defendant is deemed liable for. Is the defendant's insurance policy subject to discovery By the plaintiff? A. Yes, the defendant must provide the insurance policy to the plaintif if the plaintive makes a proper request for production of documents that includes the insurance policy.

0:56:51 Thomas: Hmm.

0:57:10 Thomas: What? Oh

0:57:22 Andrew: B. Yes. The defendant must supply the insurance to the defendant if the if the plaintiff does not request it. C. No, the defendant need not disclose the policy because it is not relevant to the plaintiff's claim or defendant's defense. Or, or D, no, because insurance policies are precluded from being admitted into evidence if agency control or impeachment is not at issue, as admission of an insurance policy into evidence is considered to violate public policy.

0:57:29 Thomas: My God. Oh, Hmm.

0:57:50 Thomas: I feel like that last one is a bit of a bit of a crazy one, but I could be wrong. Well, uh, right away I was like, oh, federal court, why are we in federal court? But I don't know if that has any meaning other than, I'm sure this is the federal rules of evidence or whatever. But yeah, why are we in federal code? I wonder, maybe it's a, maybe it must be an expensive car, you know, because it's got to over 75,000 and maybe they were crossing states, in different states than they live in, I don't know. It's interesting, uh, but anyway, that doesn't sound like it matters. So, so this is weird. So it's okay. Facts seem to be, I'll just kind of restate them. It might be hard as you're listening along to gather all of them. It's hard enough for me reading them. Must be hard if you're just listening. So we got a car accident, defendant lost control, snowy day, collided with plaintiff. The defendant, here's what the language is.

0:58:37 Thomas: Defendant has an insurance policy that will pay not just for the damages, but it says pay for the defense of the defendant's claim, as well as most or all the damages that the defendant is deemed liable for. Here's what sucks. I feel like we had some conversation about this five years ago on the show. I'm having just a tiny bit of memory of something, but I think it's like really old, so I can't remember what exactly it was. But yeah, I think you've something. But anyway, it makes sense, the insurance company will actually pay, apparently, or provide the defense or whatever, uh, and maybe pay for the damages. And that makes sense, cause like, they want to minimize the amount they're going to have to pay for damages. So it makes sense that they might also, you know, defend the, uh...

0:59:22 Thomas: The defendant. But okay. It's saying, is the defendant's insurance policy subject to discovery? Now, why would it be? I guess is the thing. Like, what... If... If you are suing someone one for negligence, is the insurance policy anything that matters for that? And I, I'm pretty sure the burden, uh, or whatever, like the, the, um, blanking on the word, but like, I think you've said that, you discovery, it's stuff that might be evidence. Like, it's a pretty loose standard, I think it might, it's something like that. It's stuffthat might, you now, be considered evidence for the question. Some, some language is really loosey goosey because it's, you you know, you want to cast a wide net, I think, for stuff like this, because it's just discovery. But I still can't see how an insurance policy would at all be relevant to the question of whether they were negligent in driving their car.

1:00:15 Thomas: You know? Like, what difference? I'm trying to think. There could be something I'm missing, but I don't see it, how it's at all relevant, in, as the plaintiff is concerned, they're suing somebody for negligence in this car accident and whatever, yeah, maybe an insurance company is going to pay for it, maybe not. What does that matter? I don't know. So that's my intuition. Let's go through the answers. A, yes, the defendant must provide the insurance policy to the plaintif if the plaintive makes a proper request for production of documents that includes the insurance policy. Well, that's interesting. I mean, is that going to be the kind of trickery where it's like, there isn't really a proper request for production of documents that includes insurance policy, but if there were, you would have, like, a could just be true. Like, yeah, if you make a proper request for production of Docients that includes insurance policy, then obviously you have to include the insurance policy.

1:01:06 Thomas: But it strikes me as kind of avoiding the question. But who knows? I mean, that's possible. B, yes, the defendant must provide the insurance policy to the plaintiff, even if the plaintiff does not request it. That's really interesting. Would that be true? Maybe. I don't think so. But who knows? This is going to be a tough one, as always. C, no, the dependent need not disclose the policy because it is not relevant to the plaintiff's claim or the defendant's defense. That is what I am leaning toward. And so, therefore, I should obviously go with that answer and not change my mind. D, no, because insurance policy... D, I think is pretty nonsense based on just the first reading of it, but let's see. No, because insurances policies are precluded from being admitted into evidence if agency control or impeachment is not at issue, as admission of an insurance policy into evidence is considered to violate public policy.

1:02:01 Thomas: Like, you almost could have had me. And then that last clause, I guess it's not a separate sentence, that last part, um, seems really silly. "Is admission of an insurance policy into evidence is considered to violate public policy," I cannot imagine that being true. So I'm gonna eliminate D. Again, if it was, if it just had that first part, like, "they're precluded from being admitted to evidence if agency control or impeachment is not an issue," like, I, that, that would be a real contender because I think that that might be right. And that's what makes me really nervous, is that first part does sound really right. So maybe the second part is just a meaningless BS that doesn't affect that. And this, And D will be the right answer.

So old me, this is going to be great. Old me would have, like, maybe switched to D, possibly, but because of the streak I'm on, I'm staying with what my first instinct was, which is C. "No, the defendant need not disclose the policy because it is not relevant to the plaintiff's claim of the defendant's defense," seems reasonable to me. I'm between C, D, and A. I, I, I guess, for the coin, I better, I mean, A just strikes me as too passive. Like, it's yeah, okay, I mean, I guess that might be technically correct, the best kind of correct.

Like, yeah, if, if you make a proper request for production of documents that includes insurance policy, but I kind of don't think so. I've, so I'm gonna go, between Seeing, I'm a strong no on this, or, or there'll be some random rule that's like, B, you have to always show insurance for some reason. But I'm gonna go between C and D, for

1:03:31 Thomas: Coin purposes. I'm choosing C because I'm not changing my mind, and we'll see if the coin agrees. The coin agrees again. I just have a heads coin lately, but that's how, sometimes that random stuff is different than we think it's going to be. But anyway, so the coin and I choose C.

1:03:48 Andrew: All right. Well, if you want to play against Thomas and the coin, maybe either lose to them or get up on both of them, you can do that. Just share out this episode on social media. Include the hashtag T3BE. Include your guess, your reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:04:08 Clip: And thank you, Let's go!

1:04:10 Thomas: Now it's time to thank our new patrons at patreon.com/law. And, uh, thank you for patronizing us so much. We hope you enjoy that, lot of movies coming at you very soon. I'll have it out very, very soon as you're hearing this. Uh, it was a lot of fun. Can't wait to get it out. Why don't you start us off, Andrew?

1:04:26 Andrew: All right. Thank you to Rick Law. Nice name. Nick Laird. Alice Lutris. Huz Mog? Star Trek is better than Star Wars. That is 100% true. I will fight anyone who feels otherwise. Scot Boeringer. Chris Buckland. Dennis James Gilbert Jr. Tim Costella. And Michaela. Take it away, Thomas.

1:04:28 Thomas: Ooh. Hmm.

1:04:47 Thomas: And thank you to the Calvin and Hobbescast Podcast, uh... Narbeh Hartoonian, Tua Tagovailoa, the quarterback, back, right? Wow. Finally.

1:04:51 Andrew: Yeah. Yeah. Hey, I hope that really is Tua Tagovailoa, the Miami quarterback. You're on my two quarterback league fantasy team. So there we go.

1:04:59 Thomas: Yeah. That'd be awesome. Oh, wow. Yeah, email us for an interview. Kristi, sorry about that pronunciation, but Landis Duff, wait, I'm curious, Loyaa, and Mike L. Thanks so much, new patrons. We love you. You and

1:05:22 Andrew: We do indeed. Especially I'm really envisioning like Tua working out, you know, just listening to the show.

1:05:26 Thomas: Yeah. Listening to Oa. Look, All right, odds-wise, do we- is it possible we have an NFL listener? No, it's probably not. This

1:05:36 Andrew: Well, we have at least one ex ex NFL. NFL Chris Cluey is a fair enough.

1:05:36 Thomas: Who? I Don't Think Chris Cluey still listens? Do We have- do, is there gonna be? I just would love if we got some random message from like any- anyone in the NFL. It was like, "Yes, I'm really into the law and politics and liberal politics." Like, also,

1:05:57 Andrew: That'd be great. All right. So if you're a member of the National Football League, that would

1:05:59 Thomas: I'm Doing. Doing Better Than You On T3BE. Stop doubting yourself like that. You know, some middle linebacker. That would be the best thing ever. Email us. All right. We'll see you next time and look forward to hearing from our one NFL listener, probably.

1:06:06 Andrew: Be amazing.

1:06:15 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:06:48 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.