For the third time in five years, give or take a discretionary abuse, the Fifth Circuit U.S. Court of Appeals has ruled that a federal district court judge in Houston wrongly denied a plaintiff her right to discovery before summary judgment.
And in each case over those five years the same trial judge was admonished by the appellate court to knock it off.
In a previous case, the Fifth Circuit noted it was taking the “extraordinary” step of removing the judge – Lynn Hughes who sits on Texas’s Southern District – from the case.
“This is the third time we have been asked to consider whether a particular district court can deny discovery rights protected by the Federal Rules of Civil Procedure because, in the district court’s view, that discovery is unnecessary,” the three-judge panel declared in a per curiam opinion.
“We have twice held no. Today we so hold a third time.”
Judge Hughes was asked for comment by email at the address listed by the National Judicial Center but had not responded by 6 p.m. Thursday.
In the latest case, issued Thursday, a nurse alleged she was fired because of age discrimination. Despite the constraint of Judge Hughes’s order limiting discovery without his permission, Dana Bailey repeatedly tried to open discovery but Hughes repeatedly rebuffed her. In none of those efforts did the judge explain his reasoning.
In one instance the court declined to rule on Bailey’s discovery motion and instead entered an order prohibiting any discovery before she was deposed. The defendant, her employer, KS Management, let the deadline pass without deposing her.
Finally, Hughes granted summary judgment for the defendant.
The panel’s decision recounted its second such case involving a “strikingly similar” discovery plan and expressed a “sense of déjà vu.”
“There too, the same district judge permitted only the plaintiff to be deposed and denied the plaintiff the opportunity to depose any witnesses before summary-judgment briefing was complete,” the court said. “We again reversed, concluding the court below had abused its discretion and that its ‘discovery restrictions suffocated any chance for [the plaintiff] fairly to present her claims.’ Today, it is ‘déjà vu all over again.’
“And we reverse. Again. But we trust that the district court will heed the Federal Rules and the mandates of our precedent.”
Bailey was represented by Edwin Enrique Villa and Matthew P. Swiger of Houston’s Villa Law Firm. KS Management Services was represented by Kimberly Rose Stuart and Juliann Hale Panagos of Crain, Caton & James in Houston.