Heh heh, lets phrase the question this way: Are you convinced Walker does have this planned out, or is he winging it a little? My inclination is he really does have a map, but he isn’t giving it up yet.

Walker volunteered his thoughts on the need to avoid/minimize the government introducing evidence and pleadings to which plaintiffs had no access. He also stressed the need to reach a final conclusion so the case could move on to the appellate court before they all retired/died.

Eisenberg (for plaintiffs) went first and spent most of his time addressing his preference for proceeding with “Scenario Two” (see plaintiffs’ memo on feasibility of summary judgment). Unfortunately, he wasn’t very precise about what Scenario Two was. Certainly it involved moving directly to summary judgment proceedings without resort to a protective order. Plaintiffs’ memo made clear this would be partial summary judgment, but there seemed some ambiguity about exactly what would be adjudicated on that motion.

Eisenberg concurred in Walker’s initial concerns and suggested that the court not entertain any more (secret) evidence from the govt.

Coppolino objected to sanctions (mostly by reference to the show-cause reply filed last week). He moved on quickly to the implications of Scenario Two and noted some apparent ambiguity about plaintiffs’/court’s reliance on the Sealed Document during summary adjudication. Walker said he believed Scenario Two would not require any recourse to the Sealed Document. Coppolino then wasted 20+ minutes reiterating that (a) you can’t pre-empt state secrets privilege (Walker: “we’ve settled that”) and that case is ripe for appeal (Walker: “not how I read the recent denial from the circuit panel”). Round and round they went. Wasting everyone’s time and patience. Par for the course.

Eisenberg then clarified that he thought the court should/must consider the Sealed Document during summary judgment. The plaintiffs did not, however, require (further) access to it. Walker said, in essence, “not a good idea.” Eisenberg stumbled around for a while (no doubt trying to imagine how to proceed to summary judgment with the public facts at hand).

Eisenberg also pleaded for sanctions (expenses only), which Walker didn’t want to entertain at this time.

As for the hearing date, Eisenberg (and Walker) wanted a hearing as soon as practical, but the briefing schedule would run to August, which didn’t work for the court/govt (Eisenberg said he’d show up at anytime no matter how busy he was).

Suffice to say, I don’t think everyone’s on the same page. I’m inclined to trust Walker’s plan, but I’m not sure I know what it is.

Shooting blind it kind of sounds like the Judge is anticipating the parties will work out briefing schedules (or he may issue a follow up order if they don’t) that will anticipate filings that very likely would hit the sur-reply level (so enough time for fiing, response, reply, sur-reply) and the court isn’t going to be scheduling hearings in Aug, so Sept 1 is a safe date to give everyone time to file ALL their briefs.

If SJ is very seriously on the line, it is likely to be extensive briefing, not just motion/response. And it sounds from the nature of the “shall” directive that in essence Walker is relatively convinced that the appropriate sanction for gov’s non-response is SJ, but he wants plaintiffs to put the options for how it would work and the substantive basis for that action on the table rather than have to court craft the options from whole cloth.

It also sounds like the timing might include some hail mary hope for the parties to actually work something out voluntarily.

Without any transcript, I have to think that the court is pretty much wanting plaintiffs to offer up some sanctions that will “work” to provide them a remedy while incorporating a respect for national security issues. The problem is that they are drafting in ignorance – blind – while Gov claims that its massive felony program of illegal and unconstitutional searches of American citizens on American soil is protectable as a national security matter. So addressing how to get to the endpoint of damages and all the journey points along the way are going to need plaintiffs to be creative in the remedy requests imo.

And they may end up being very case specific, or they may open doors to possible remedies and relief for the plaintiffs in Jewel as well. And I’d like to hope that injunctive relief for future violation gets on the table again. Sounds like there’s a lot of balls in the air right now and some of them will inevitably hit the ground. Which ones and how many.