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"Full of Sound and Fury, Signifying Nothing" in Netflix Lawsuit Over Cuties Prosecution

By Eugene Volokh

From this morning's Supplemental Order on Grand Jury Discovery by Judge Michael Truncale (E.D. Tex.) in Netflix, Inc. v. Babin, a follow-up to Monday's decision (in which Netflix got discovery of grand jury materials in challenge to prosecution over Cuties):

In his most recent filing, [Tyler County D.A. Lucas] Babin criticized this Court for its "manifestly incorrect conclusions of law," for "trampl[ing] federalism," "ignor[ing] the sovereignty of the State of Texas," "eviscerat[ing] both the independent intermediary doctrine and the process of criminal justice in Texas," for its "usurpation of sovereign power," for "interfer[ing] with an ongoing state proceeding," and "ignor[ing] clear precedent." Upon closer inspection, these remarks are "full of sound and fury, signifying nothing."

The catalyst for Babin's obloquy was this Court's determination, in accordance with many of our sister courts' decisions, { Simpson v. Hines, No. B-88-00316-CA, 729 F. Supp. 526 (E.D. Tex. 1989) (Cobb, J.), Ramirez v. Abreo, No. 5:09-CV-190-C, 2010 WL 11470102 (N.D. Tex. 2010) (Cummings, J.), and Sanchez v. Gomez, No. EP-17-CV- 00133-PRM, 2019 WL 12536398 (W.D. Tex. 2019) (Castaneda, M.J.)}, that Fed. R. Crim. P. 6(e) should apply instead of Tex. Code Crim. P. art. 20A.205 in assessing whether the grand jury materials should be disclosed. Perhaps lost in all the noise, however, was this Court's recognition that long-standing precedent provides the rule of decision here. Pursuant to Erie R.R. v. Tompkins, 304 U.S. 64 (1938) and its progeny, and as this Court recently reaffirmed in Delarosa v. Great Neck Saw Mfrs., No. 1:20-CV-00402, 2021 WL 4618586 (E.D. Tex. Sept. 30, 2021), federal procedure must apply unless doing so would "abridge, enlarge, or modify" the substantive rights of the litigants. {See also Camacho v. Tex. Workforce Comm'n, 445 F.3d 407, 409 n.1 (5th Cir. 2006) (recognizing that "[t]he Erie case and the Supreme Court decisions following it apply in federal question cases as well.").}

Here, this Court's decision to apply the procedure of Rule 6(e) instead of the state procedure outlined in Article 20A.205 passes muster under Erie, because as the Fifth Circuit recognized in Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004), federal courts and Texas state courts apply the same substantive "particularized need" standard in deciding whether grand jury materials should be disclosed. Thus, federal law mandates the application of Rule 6(e), because it does not "abridge, enlarge, or modify" any of the litigants' substantive rights.

Whenever I hear the "sound and fury" line, I always think of who Macbeth was saying was telling that tale.

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Dive Deeper:
Netflix Gets Discovery of Grand Jury Materials in Challenge to Prosecution Over Cuties
"Netflix alleges that Tyler County’s District Attorney, Lucas Babin, is 'abusing his office' through a 'singular and bad-faith effort' to…
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One subscription that gives you access to news from hundreds of sites
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Get all your news in one place