Well -- Just As I Said -- USDC Judge Moses' Order Is Transparently Unworkable. Was It So, By Design?

I've been following this for about three weeks now. TX WD Chief USDC Judge Moses entered an order, in an "emergency" preliminary injunction hearing case, which is supposed to help expedite "an emergency ruling". . . on the permanent injunction Gov. Abbott seeks.

But to decide whether the TRO should continue, while the litigation progresses -- against federal agencies removing land based razor wire around Eagle Pass, Texas. . . she has asked for delivery of about a billion emails and other documents. To her chambers. And that's not including any of the other side's documents -- ones generated at the state level, by local Texas officials. Wow.

It is hard to imagine any emergency ruling that would require the immediate review -- of one- to 1.5 billion documents before a decision might be made. So it feels as though the Chief Judge has designed her sua sponte "discovery" order. . . to delay any resolution, rather than reach one.

And that's before we discuss the notion that, in APA suits like this one, general discovery is not allowed (at all), by federal rule. The relevant question is what did the agency finally set out, as the basis for its action, in an official writing, and then rely on (a public record), not not not what "mean things" did the state and fed agents say to one another, over a three year time frame. Geez.

Finally, it is nearly certain that about 90% of those 1.5 billion emails are "deliberative documents" -- and thus exempt from disclosure in any event, in a federal court -- especially so, as part of some wild sua sponte discovery fishing expedition. Here's the eight page motion we mentioned would be coming, as of yesterday evening, along with the seven pages of factual support, in the form of a declaration from a duly-informed records custodian, at federal border patrol (below is just a taste of the would-be ludicrous result, if Moses' order were to be enforced).

. . .CBP has approximately 16,000 Border Patrol Agents assigned to the southwest border, comprising approximately 26% of the CBP employee workforce. Applying the monthly averages set forth in Paragraph 6, and limiting the data parameters from March 6, 2021 to the present, searching for emails responsive to the Court’s Order would necessitate searching a universe of approximately 882 million emails, consisting of approximately 832 million emails received and approximately 50 million emails sent. Limiting the search to the more than 1,500 Border Patrol Agents assigned to U.S. Border Patrol’s Del Rio Sector would mitigate the universe of emails, though not adequately, still leaving approximately 85 million emails, consisting of 80 million emails received and 4.8 million emails sent during the period of March 6, 2021 to November 9, 2023. . . .

[Limiting the search to just eight federal agents, and removing duplicates], 310,636 documents remained in the collection, comprised of 152,096 emails and 158,540 email attachments and standalone documents. . . .

So -- applying Occam's Razor, one could logically assume that Judge Moses is looking to delay things, while her team has the temporary advantage, and probably set off an entirely separate side show piece of litigation about whether the feds must produce some one billion documents, redacted to protect identities, in under a week. Her next hearing is supposed to be next week.

As I say -- either she voluntarily modifies her order, or the Biden Administration may very well bring a separate suit (or even seek to have her removed -- as the judge -- for a showing of bias here, in simply ignoring controlling federal law). Do stay tuned.

Grinning on a sunny morning, with my eldest home for a month, then back out, and on to London, the coast of Mexico. . . and then Nicaragua for a month -- with a stop in Arizona, at Christmas, in between. Woot!

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