There's A Hearing This Afternoon, On USDC Judge Moses' Discovery Order -- In Eagle Pass Land Razor Wire Case: Feds Light Her Up -- And Texas Rangers, Too...

Ostensibly by noon today, West Texas time, the parties (including the Texas state level folks!) are supposed to have submitted potentially over a billion pages for Judge Moses' review. As we earlier said, that was never going to happen. It is a preposterous order, on its face -- and an abuse of civil discovery rules -- as she well knows.

So, instead the federal agencies have produced a statement of good faith efforts, to be discussed at today's conference. The USDC Judge is likely to be bellicose about it, but thus far, the local Texas Rangers haven't lifted a finger to comply. And as we've said repeatedly, no real discovery is needed to determine that the razor wire impedes federal statutory rights, and on federal lands, no less.

In sum, Judge Alia Moses. . . engages in. . . lunacy here. Hopefully, she realizes that today, at the hearing -- and rules that the feds are entitled to remove the barriers. Here's to hoping. And, in any event, here's the latest sworn testimony, from the federal Border Patrol lawyers (BTW, where is the Texas state level sworn statement, Gov. Abbott?!):

. . .Just running the processes necessary to perform the broad searches encompassed by the Court’s order would place extreme stress and burdens on CBP’s information systems and interfere with other CBP functions. Dismuke Decl. ¶¶ 6–14. Indeed, if the CBP eDiscovery Team were to perform the types of searches necessary to comply with the Court’s order as written, it would be unable to service discovery obligations in any of its other 125 open matters, including other civil litigation matters, and any requests from the Office of Professional Responsibility, the CBP FOIA Office, the Department of Homeland-Office of Inspector General, or the SOC (Security Operations Center). Id. ¶ 14. Depending on the ultimate scope, it could take between several months and several years to perform the searches necessary to comply with the Court’s order and ingest the data, to say nothing of performing the necessary reviews for responsiveness, privilege, and other applicable withholdings and redactions, and ultimately producing the documents. . . .

Defendants respectfully submit that, while unnecessary to decide Texas’s preliminary-injunction motion, the anticipated production could resolve factual questions the Court believes relevant to its decision. Included in the production are documents reflecting that the concertina wire inhibits Border Patrol’s ability to patrol the border and inspect, apprehend, and process migrants in this four-mile stretch of the border, and the ways in which Border Patrol has coordinated with Texas about the wire in this area. . . .

As a general matter [as reflected in the over 6,500 documents cleared and produced this morning, November 21, 2023], the documents reflect that while Border Patrol and DPS have engaged in some coordination about the concertina wire, the relationship has deteriorated over time, driven at least in part by at least one instance in which Texas DPS personnel threatened to criminally charge Border Patrol for cutting the wire and DPS efforts to impede Border Patrol access to certain areas. Defendants intend to offer a selection of the documents provided to the Court, included those cited here, among the exhibits it will submit at the second preliminary injunction hearing. . . .

Well. . . unless Judge Moses wants to hear from the Fifth Circuit that she is abusing her office, she ought to simmer down, and start following well-settled federal law. Onward.

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