Judge Real Makes Trouble in Paradise

“Outside of the agricultural community, plant disease-causing fungi are rarely the subject of casual dinner conversation, much less contentious litigation,? Judge Sidney Thomas wrote in a Monday Ninth Circuit opinion.

And outside the Central District of California District Court, lawyer irritant Judge Manuel Real’s peregrinations from conventional decisions are rarely the cause of contentious litigation, much less casual dinner conversation.

That all changed when Real got a free trip to Hawaii a few years ago, where he had the chance to botch a case far from his normal case-botching ground — and in doing so get a bunch of litigants who talk about fungi at dinner to appeal a particularly strange order by Real.

Strange because Real’s order that E.I. DuPont de Nemours and Company could not be sued for withholding evidence that its fungicide killed crops was in fact written by DuPont’s lawyers.

“The visiting district judge adopted the 64-page proposed summary judgment order tendered by DuPont with only a few minor changes. Those changes consisted of additional language complaining about the volume of material involved. The judge then directed that the ghost-written order be published,? Thomas wrote. Judges Barry Silverman and Judge Richard Clifton concurred. In his order, Real also managed to include a particularly disdainful dismissal of the Hawaii Supreme Court’s opinion on whether the suit could move forward. “I’m not a trial court of the Hawaii courts of appeal,? wrote Real, who was the subject of a September order (link to .pdf) saying Real had sufficiently acknowledged judicial misconduct for improperly intervening in an eviction case, though a blistering dissent from Judge Alex Kozinski called for stronger disciplinary action.

In his opinion (link to .pdf) in Living Designs v. DuPont, Thomas — unsurprisingly — ordered that a new judge be assigned to the case.

— Justin Scheck

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