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Legal Speak

Thou Shalt Not....

Published March 18, 2011 2:18 PM by Tony DeWitt

In the United States, federal judge have something no other group of federal employees have:  life tenure. They cannot be removed from their job without impeachment, and their salary never goes down. Some have said that being a federal judge is the most powerful job in the United States because even a lowly district court judge can never be fired.

In addition, of course, the same federal judges tend to have a lot of judicial power. They can implement and apply federal laws and rules, and they have the power to confine a person for contempt of court. It is for this reason, if for no other, that lawyers always advise their clients never to take on the judge. A client can get away with being dismissive of another attorney, or rude to a witness, but being rude to a judge is "sanctionable."

Generally, when a judge orders a party to litigation to do something - like produce documents in response to a subpoena - the party has a choice:  they can either comply with the order or they can challenge the order in an appellate court.  What they can't do is just choose not to obey the order. Yet, curiously, that is exactly what a nursing home in Arkansas did earlier this month.

An Osceola nursing facility refused to provide documents to the Equal Employment Opportunity Commission in response to a subpoena. They told the EEOC that they would comply, then they never did. So the EEOC went to federal court to enforce their subpoena. 

Early in January of this year the nursing home was served with a federal complaint urging enforcement of the subpoena, but for some reason did not show up at the hearing that was sent for January 7. Thereafter, the Court issued an order where it said "Osceola Healthcare to respond - fully, completely & promptly - to the EEOC's July 2010 subpoena by 1/31/2011. The Court will hold a (Status/Evidentiary Hearing on 2/11/2011 at 2:00 PM in Little Rock Courtroom # B-155 before Judge D. P. Marshall Jr.) Petitioner & Respondent are ordered to appear. As an entity, Respondent must be represented by counsel at the hearing. If Respondent fails to respond to the subpoena fully & completely as ordered by 1/31/2011, then the Court will take evidence & hear argument at the February 11th hearing on the appropriate sanction. The U.S. Marshal is directed to serve this Order on Osceola Nuring Home LLP's registered agent for service, Stafford Kees, Jr., as soon as possible & in person, if possible."

Luckily for the nursing home the hearing originally set in February was pushed back to March 8. After the hearing on March 8, however, the trial court slapped the facility with a $2,500 sanction for causing the EEOC to enforce its subpoena. Predictably, the defendant has asked the Court to reconsider.

Reading the transcript available on the federal court system, it is clear the judge was terribly put out with a nursing home that appeared to be ducking its responsibilities under federal law. The lesson is an important one for facilities: subpoenas have legal force and mean that documents must be produced. If a facility cannot or does not want to comply, it must seek legal help in doing so. To do otherwise is to ignore the 11th Commandment:  thou shalt not annoy a federal judge!

 

posted by Tony DeWitt
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About this Blog


    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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