Doe v. Cabrera

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JANE DOE, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-1005 (RBW)
)
ALFREDO SIMON CABRERA, )
)
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
This civil matter is currently before the Court on the plaintiff’s Motion to Disqualify &
Memorandum in Support Thereof (“Mot.”), which seeks to have this Court recuse itself from
further presiding over this matter and vacate several of its recent discovery rulings, id. at 28-29;
see also August 18, 2015 Transcript of Emergency Teleconference (“Aug. 18, 2015 Tr.”) at 6:13-
23, ECF No. 76; August 18, 2015 Order (“Aug. 18, 2015 Order”) at 1, ECF No. 75. The motion
is primarily based on comments made by one of the Court’s law clerks (“Law Clerk I”), who
insinuated in jest to members of defense counsel’s law firm, including an attorney who has made
an appearance in this matter on behalf of the defendant, that she influenced the Court’s
decisionmaking process with respect to certain discovery rulings in this case. To be sure, the
Court does not condone these comments even though they were made in jest. There was no
factual basis for them, and they should not have been made. For the reasons that follow, 1
however, the ill-advised conduct by the law clerk provides no basis for the Court to recuse itself.
1
In addition to the motion, the Court also considered the following submissions in rendering its decision: (1) the
Defendant’s Memorandum in Opposition to [the] Plaintiff’s Motion to Disqualify the Court (“Opp’n”); and (2) the
Plaintiff’s Reply in Further Support of Her Motion to Disqualify (“Reply”).
1
I. BACKGROUND
A. The Court’s Law Clerks
Law Clerk I began serving as a law clerk for the Court in November 2013. 2 Aug. 18,
2015 Order, Exhibit (“Ex.”) C (Declaration of Marina Fernandez (“Decl. I”)) ¶ 2. From “the
onset of [her] clerkship,” the Court “instructed” her that she “was conflicted from participating in
any cases being litigated by the law firm of Zuckerman Spaeder [LLP]” (“Zuckerman Spaeder”)
because her father was a partner at the firm. Id. In accordance with that instruction, the Court
told Law Clerk I “to have no substantive involvement” with this case when it was randomly
assigned to this Court, id. ¶ 5, as Zuckerman Spaeder had been retained by the defendant for his
defense. The Court tasked Law Clerk II to assist on the case, 3 see Aug. 18, 2015 Order, Ex. B
(Declaration of Hugham Chan (“Decl. II”)) ¶ 2, and Law Clerk I has “never” provided the Court
“with any substantive input” regarding this case, Aug. 18, 2015 Order, Ex. C (Decl. I) ¶¶ 17-18.
During Law Clerk I’s tenure in the Court’s chambers, she acquired the services of
Zuckerman Spaeder to represent her in a “personal legal matter.” Id. ¶ 3. The firm’s
representation of her “lasted from January 2015 through February 2015 with some follow-up
discussion in May 2015.” 4 Id. ¶ 3 n.1. Associate Ben Voce-Gardner (“the associate”) was part
of Law Clerk I’s legal team in her personal matter. See id. ¶ 3; see also Aug. 18, 2015 Order,
Ex. A (August 11, 2015 Letter from Fetterolf (“Aug. 11, 2015 Ltr.”)) at 2. Through the
2
Law Clerk I’s last day in chambers was September 4, 2015.
3
After the Court was assigned this case, there was turnover in the “Law Clerk II” position. For purposes of
resolving this motion, that turnover is irrelevant because no clerks in this position have ever had any conflicts of
interest that prevented them from providing independent legal assistance to the Court in this case.
4
According to the plaintiff, the legal representation could be considered a “substantial gift” from Zuckerman
Spaeder to Law Clerk I because it was pro bono. See Reply at 2. For purposes of this motion, the Court assumes
that this is true.
2
associate’s representation of Law Clerk I on her personal matter, the two became friends and
periodically sent text messages to each other, even after the legal relationship concluded. See
Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ 3; Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 2.
That associate has also appeared on behalf of the defendant in this case. E.g., Appearance of
Counsel, ECF No. 9. The Court, however, was never aware that this associate provided legal
services for Law Clerk I, until the events that gave rise to this motion occurred.
B. The Court’s Discovery-Related Rulings And Law Clerk I’s Communications
With Members Of Defense Counsel’s Firm
1. Telephonic Hearing
On June 29, 2015, the parties “contacted” the Court, seeking to “resolve a dispute that
had arisen during a deposition” of a third party. Mot. at 5. Law Clerk I “answered the phone
and stated that [Law Clerk II] was not available.” Id.; see also Aug. 18, 2015 Order, Ex. C
(Decl. I) ¶ 7. The parties outlined the discovery dispute to Law Clerk I, and she relayed that
information to the Court, while reminding the Court that she was screened from involvement in
the case and could not assist the Court any further. See Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ 8.
The discovery dispute concerned a third-party deponent, who objected to the presence of a
defense expert during her deposition. 5 See id.; see also Opp’n Ex. B (Deposition Transcript of
Jennifer Anne Graebe, R.N. (“Graebe Dep. Tr.”)) at 6:5-7:1. When Law Clerk II became
available, which was almost immediately after the dispute was presented to the Court, the Court
only sought his substantive assistance in handling the dispute. The Court subsequently
determined that there was no basis for the objection, and in light of the fact that neither party
5
This was not a “complicated discovery issue.” Reply at 12.
3
objected to the presence of the defendant’s expert at the deposition, 6 the Court permitted the
deposition to proceed and allowed for briefing from any party, if case authority existed contrary
to the Court’s ruling. 7 Later during the day after the discovery dispute had been resolved, Law
Clerk I sent a text message to the associate, indicating that she had “[dealt] with an over[-]the[-
]phone objection in one of [his] cases,” and asked whether he was in Washington, D.C. for the
deposition. Mot. at 6 (quoting text message sent from Law Clerk I to the associate). The
associate was apparently unaware that a deposition was being conducted in this case on that day.
See Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 2.
2. In-Court Motions Hearing
On August 5, 2015, the Court heard oral arguments concerning various discovery-related
motions. See, e.g., August 5, 2015 Transcript of Motions Hearing (“Aug. 5, 2015 Tr.”), ECF
No. 74. At the conclusion of that hearing, the Court orally granted the defendant’s motion to
require the plaintiff to submit to an independent medical examination, see generally August 7,
2015 Order (providing legal bases for the Court’s oral ruling), ECF No. 73; see also August 5,
2015 Order (“Aug. 5, 2015 Order”) at 1, ECF No. 71, as well as the defendant’s motion for the
disclosure of the plaintiff’s grand jury testimony, 8 see generally Doe v. Cabrera, _ F. Supp. 3d _,
2015 WL 5190437 (D.D.C. 2015) (providing legal bases for the Court’s oral ruling); see also
August 6, 2015 Order (“Aug. 6, 2015 Order”) at 1, ECF No. 72. Law Clerk I and Law Clerk II
6
The plaintiff’s characterization of the Court’s ruling as “favorable” to the defendant, Mot. at 6, is belied by her
consent to the presence of the defendant’s expert at the deposition, see Opp’n, Ex. B (Graebe Dep. Tr.) at 6:21-7:1
(“Counsel for the plaintiff and the defendant waived the rule on witnesses by consent.”).
7
Neither the third party nor the plaintiff ever filed a submission challenging the Court’s ruling.
8
Although the Court did not rule on a third discovery motion during the August 5, 2015 hearing, the Court
entertained arguments regarding the plaintiff’s motion to strike certain of the defendant’s rebuttal expert reports and
provided its initial thoughts on the motion. See Aug. 5, 2015 Tr. at 16:4-25:24. The Court subsequently issued a
detailed written Order, consistent with what it had already expressed to the parties. See September 21, 2015 Order
(detailing reasons for denying the motion), ECF No. 85.
4
were both present in the courtroom during the hearing. See Aug. 18, 2015 Order, Ex. C (Decl. I)
¶¶ 10-12. Later that day, as well the day after the hearing, Law Clerk I reminded Law Clerk II
that he needed to help the Court memorialize the Court’s oral rulings in paper orders, as the
Court had limited availability during the remainder of that week and the following week. See id.
¶¶ 13-14. The Court memorialized its rulings on August 5, 2015, see Aug. 5, 2015 Order at 1
(granting motion for independent medical examination), and on August 6, 2015 (granting motion
for disclosure of grand jury testimony), see Aug. 6, 2015 Order at 1.
After the Court issued its August 6, 2015 Order, that same day and unbeknownst to the
Court and Law Clerk II, Law Clerk I sent text messages to the associate stating that he was going
to “owe” her an alcoholic beverage. See Aug. 18, 2015 Order, Ex. C (Decl. I) ¶¶ 14-15; see also
Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 1. More specifically, Law Clerk I insinuated
that she had contributed to the Court’s issuance of its August 6, 2015 Order in the defendant’s
favor. See Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 1 & n.2 (Law Clerk I sending text
message to associate that “as of 3:34 [p.m.] today,” when the Court issued its order, the associate
“owe[d] [her] a beer [(or wine)!]”). Law Clerk I also sent a similarly-worded text message to her
father. Id. at 1 n.1. Law Clerk I has represented that these text messages were made in jest, as
she was “pregnant” and was therefore “not drink[ing]” alcohol. Aug. 18, 2015 Order, Ex. C
(Decl. I) ¶ 14. Nevertheless, realizing the impropriety of the text messages, she informed the
Court about them that same night. See, e.g., id. ¶¶ 15-16. The following day, August 7, 2015,
the Court contacted the parties to schedule an emergency conference to disclose what Law Clerk
I had told the Court.
During the emergency conference, which occurred in the courtroom, telephonically, and
on the record, the plaintiff orally moved for the Court to, inter alia, recuse itself from this case
5
and to vacate its discovery rulings from the August 5, 2015 motions hearing. See, e.g., Aug. 18,
2015 Order at 1. The Court denied the motion without prejudice, but allowed the parties to brief
the issue of recusal. See id. The plaintiff has renewed her motion in written filings.
II. LEGAL STANDARD
“[B]ecause judges are presumed to be impartial, ‘the Court must begin its analysis of the
allegations supporting a request [for recusal] with a presumption against disqualification.’” SEC
v. Bilzerian, 729 F. Supp. 2d 19, 22 (D.D.C. 2010) (second alteration in original) (ellipses
omitted) (quoting Cobell v. Norton, 237 F. Supp. 2d 71, 78 (D.D.C. 2003)); accord United States
v. Ali, _ F.3d_, _, 2015 WL 5011433, at *4 (8th Cir. 2015) (“[A] party introducing a motion to
recuse carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking
disqualification bears the substantial burden of proving otherwise.” (quoting Fletcher v. Conoco
Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003))). Under 28 U.S.C. § 455(a) (2012), a judge
“shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” The party moving for disqualification of the judge must make “a showing of an
appearance of bias or prejudice sufficient to permit the average citizen reasonably to question a
judge’s impartiality is all that must be demonstrated to compel recusal.” United States v.
Bostick, 791 F.3d 127, 155 (D.C. Cir. 2015) (quoting United States v. Heldt, 668 F.2d 1238,
1271 (D.C. Cir. 1981)); see also SEC v. Loving Spirit Found., Inc., 392 F.3d 486, 493 (D.C. Cir.
2004) (“Recusal is required when ‘a reasonable and informed observer would question the
judge’s impartiality.’” (quoting United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir.
2001), cert. denied, 534 U.S. 952 (2001))); In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991)
(“There is, of course, no doubt (1) that one determines a [28 U.S.C. § 455] violation completely
without regard to whether there exist adequate independent grounds for the judge’s rulings, (2)
6
that the appearance-of-partiality test is an objective one (whether an informed observer would
reasonably question the judge’s impartiality), and (3) that application of the test is wholly
independent of whether the judge intends to act with bias or prejudice.”); accord In re Sherwin-
Williams Co., 607 F.3d 474, 477-78 (7th Cir. 2010) (“That an unreasonable person, focusing on
only one aspect of the story, might perceive a risk of bias is irrelevant. . . . In addition to being
well-informed about the surrounding facts and circumstances, for purposes of our analysis, a
reasonable person is a ‘thoughtful observer rather than a hypersensitive or unduly suspicious
person.’” (ellipses and citation omitted) (quoting In re Mason, 916 F.2d 384, 386 (7th Cir.
1990))); United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (similar); Sensley v.
Albritton, 385 F.3d 591, 599 (5th Cir. 2004) (courts must consider how the facts would appear to
a “well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and
suspicious person” (quoting United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995))); In re
Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988) (“[J]udges determine
appearance of impropriety—not by considering what a straw poll of the only partly informed
man-in-the-street would show—but by examining the record facts and the law, and then deciding
whether a reasonable person knowing and understanding all the relevant facts would recuse the
judge.”); United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998) (similar).
In applying this objective standard, the Court need not accept every fact alleged by the
moving party as true. Heldt, 668 F.2d at 1271 (“[T]here is no support for the position that the
facts alleged in the papers submitted by a person relying on section 455 must in every case be
accepted as true . . . . The very fact that [S]ection 455 is addressed directly to the judge makes it
evident that some evaluation by the court of the facts giving rise to the motion is anticipated in
most cases.”); see also In re Aguinda, 241 F.3d 194, 201 (2d Cir. 2001) (“[T]he grounds asserted
7
in a recusal motion must be scrutinized with care, and judges should not recuse themselves solely
because a party claims an appearance of partiality.”); Hinman v. Rogers, 831 F.2d 937, 939 (10th
Cir. 1987) (a court should “not recuse [itself] on unsupported, irrational, or highly tenuous
speculation”); Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 872 F. Supp. 1346, 1349
(E.D. Pa. 1994) (“[A] judge need not accept as true the motion’s factual allegations, but may
contradict them with facts drawn from his own personal knowledge.” (citing United States v.
Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985))), aff’d, 107 F.3d 1026 (3d Cir. 1997); United
States v. Sciarra, 851 F.2d 621, 625 n.12 (3d Cir. 1988); In re San Juan Dupont Plaza Hotel Fire
Litig., 129 F.R.D. 409, 413-14 (D.P.R. 1989) (“Section 455 must be narrowly construed and the
allegations of counsel must pass the litmus test of good faith. . . . [A] Section 455
disqualification should not be allowed on the bases of rumors, innuendos, unsupported
allegations, or claims that like blind moths, flutter aimlessly to oblivion when placed under the
harsh light of the full facts.” (citations omitted)). Thus, “except in the most unusual
circumstances . . . judges [are trusted] to put their personal feelings aside, [and] recusal must be
limited to truly extraordinary cases where . . . the judge’s views have become ‘so extreme as to
display clear inability to render fair judgment.’” Cobell v. Kempthorne, 455 F.3d 317, 332 (D.C.
Cir. 2006) (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)); see also Ryan v. FBI, _
F. Supp. 3d _, _, 2015 WL 4965913, at *2 (D.D.C. 2015) (“A party moving for recusal pursuant
to Section 455(a) must demonstrate the court’s reliance on an extrajudicial source that creates an
appearance of partiality or, in rare cases, where no extrajudicial source is involved, a deep-seated
favoritism or antagonism that would make fair judgment impossible.” (ellipses omitted) (quoting
Am. Ctr. for Civil Justice v. Ambush, 680 F. Supp. 2d 21, 24-25 (D.D.C. 2010))). As such, “[a]
judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it
8
is.” In re Drexel Burnham Lambert, 861 F.2d at 1312 (citing In re Union Leader Corp., 292 F.2d
381, 391 (1st Cir.), cert. denied, 368 U.S. 927 (1961)); Cobell v. Norton, 237 F. Supp. 2d at 102
(similar).
“[T]he pall that the conduct of a law clerk may cast over the integrity of his [or her]
judge, is covered by the appearance of impropriety notion inherent in [S]ection 455(a).” In re
San Juan, 129 F.R.D. at 412 n.5. “Nonetheless, whatever appropriate ethical foothold law clerks
must obtain in the employ of the judiciary; the judge cannot be made an easy victim of the
clerk’s follies or perceived faults.” Id. “Both bench and bar recognize . . . that judges, not law
clerks, make the decisions.” In re Allied-Signal Inc., 891 F.2d 967, 971 (1st Cir. 1989). “If a
clerk has a possible conflict of interest, it is the clerk, not the judge, who must be disqualified.”
Hunt v. Am. Bank & Trust Co. of Baton Rouge, 783 F.2d 1011, 1016 (11th Cir. 1986); see also
In re Corrugated Container Antitrust Litig., 614 F.2d 958, 968 (5th Cir. 1980) (“[W]e think it
fitting to restrict those situations in which the bias of a law clerk will work to disqualify the
clerk’s employer. Clearly, a law clerk’s views cannot be attributed to the judge for whom the
clerk works.”), cert. denied sub nom. 449 U.S. 888 (1980).
Finally, a motion to recuse under 28 U.S.C. § 455(a) is committed to the discretion of the
Court and denial will be reversed only upon a showing of abuse of discretion. E.g., Bostick, 791
F.3d at 155 (“We review a district court judge’s refusal to recuse for abuse of discretion.”);
accord In re United States, 666 F.2d 690, 695 (1st Cir. 1981) (“[Because] in many cases
reasonable deciders may disagree, the district judge is allowed a range of discretion.”). But if
there is any doubt as to “whether . . . disqualification is required,” the Court “should resolve the
doubt in favor of disqualification.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524-25 (11th
Cir. 1988) (citing cases).
9
III. ANALYSIS
A. Imputation Of Actual Bias
The plaintiff 9 contends that Law Clerk I had an “actual bias in favor of Zuckerman
Spaeder” and the bias must be “imputed to the [Court].” Mot. at 14. Her contention is supported
by neither the facts nor case authority. See, e.g., In re Corrugated Container, 614 F.2d at 968
(“restrict[ing] those situations in which the bias of a law clerk will work to disqualify the clerk’s
employer” and recognizing that “a law clerk’s views cannot be attributed to the judge for whom
the clerk works”).
The plaintiff suggests that Law Clerk I “demonstrated [her] actual bias” when she: (1)
“slant[ed] or skew[ed] her representation of the [June 29, 2015 telephonic discovery] dispute to
the [Court],”10 Mot. at 16; (2) attended the August 5, 2015 motions hearing, so that she could
observe the hearing, discuss her observations behind closed doors amongst those in the Court’s
chambers, and relay any “concerns” expressed in chambers to members of Zuckerman Spaeder,
id. at 16-17; and (3) sent text messages in August 2015 to members of Zuckerman Spaeder
“indicat[ing] that she was actively attempting to assist in . . . [the firm’s] success,” 11 id. at 11.
9
This motion does not concern the conduct of the parties. When the Court alludes to the “plaintiff” as the moving
party, that reference should be construed as the plaintiff’s counsel where appropriate.
10
According to the plaintiff, “it is not unrealistic to assume” that “she contacted [the associate]” later that day “to
imply” that she did so to benefit Zuckerman Spaeder. Mot. at 16.
11
The plaintiff accuses Law Clerk I of committing several ethical violations, including impermissibly acquiring
confidential information about the case and leaking that information through text messages to members of
Zuckerman Spaeder. See Mot. at 17-18. Even accepting these accusations as true, the Court would still find that no
reasonable observer, informed about all the circumstances surrounding how the Court handled this case and
managed its law clerks, see infra, would view the Court as being partial to Zuckerman Spaeder and the defendant.
Law Clerk I has not swayed the outcome of any motion the Court has decided in this case. If the plaintiff’s
accusations were true, they would be grounds for the Court to terminate Law Clerk I for cause, but not for the Court
to recuse itself. See Prior v. Innovative Commc’ns Corp., Nos. 1999-CV-232, 1999-CV-236, 2000 WL 1670915, at
*1, *2 (D.V.I. Aug. 16, 2000) (court recused itself because of a personal relationship with plaintiff, but not because
there was an allegation that court’s “law clerks communicated confidential information” with third parties—that was
“irrelevant to the issue of [court’s] impartiality”—as court’s “law clerks are responsible for their own actions”); In re
San Juan, 129 F.R.D. at 412 n.5 (“[T]he [Court] cannot be made an easy victim of the [law] clerk’s follies or
(continued . . . )
10
But these suggestions of bias are precisely the “innuendos” that the Court will not rely on
in resolving the plaintiff’s motion. In re San Juan, 129 F.R.D. at 414; see also Heldt, 668 F.2d at
1271; Bartel Dental Books Co. v. Schultz, 786 F.2d 486, 490 (2d Cir. 1986) (“The conclusion
that a law clerk ‘had to be’ influenced by the actions of a co-worker is compelled by neither logic
nor the record before us.”). They are speculative and unsupported by any facts, at best, and
wildly inflammatory, at worst, i.e., they go so far as to attack Law Clerk I of being untruthful in
her declaration. 12 First, with respect to the June 29, 2015 telephonic discovery conference, Law
Clerk I presented the parties’ discovery dispute consistent with the Court’s and Law Clerk II’s
recollection of the dispute. 13 Compare, e.g., Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ 8 (“To the
best of my recollection, the issue presented a third[-]party objection[] and was unopposed by the
plaintiff’s counsel.”), with Opp’n, Ex. B (Graebe Dep. Tr.) at 6:5-7:1 (counsel for third party
( . . . continued)
perceived faults.”). For these reasons, discovery into Law Clerk I’s potential ethical violations would seem
inappropriate. See Reply at 3 (seeking to uncover other ethical violations); see also infra.
12
Despite whatever suspicions the plaintiff may harbor about the declarations of the Court’s law clerks, see Mot. at
18 & n.11 (characterizing Law Clerk I’s declaration as a “self-serving affidavit” that is an “attempt to minimize
misconduct,” rather than “a genuine explanation of her motivation” for her text messages in August 2015), the Court
exercises its discretion to credit those declarations, see, e.g., Hamid v. Price Waterhouse, 51 F.3d 1411, 1417 (9th
Cir. 1995) (affirming district court’s recusal decision where it “accepted the truth of [the law clerk’s]
representation[s]”); McCulloch v. Hartford Life & Accident Ins. Co., No. 01-CV-1115(AHN), 2005 WL 3144656, at
*7 (D. Conn. Nov. 23, 2005) (“[A]s the law clerk attests, he had no substantive discussions with the Court on the
merits of the rulings or this litigation after he left his clerkship.”); Baugh v. City of Milwaukee, 829 F. Supp. 274,
276 (E.D. Wis. 1993) (relying on law clerk’s word); Jewelry Repair Enters., Inc. v. E & S Assocs., Inc., No. 95-CV-
7300, 1996 WL 311462, at *3-4, *6 (E.D. Pa. June 4, 1996) (relying on law clerk testimony in deciding recusal
motion).
Further, in support of her motion, the plaintiff retained Keith Swisher, a purported expert in legal and
judicial ethics. See Mot., Ex. C (Preliminary Expert Affidavit of Keith Swisher (“Swisher Aff.”)) ¶¶ 1-8. The
plaintiff retained Mr. Swisher “to opine on the judicial ethics and recusal rules applicable to the circumstances
recounted below, including the communications and screening of [Law Clerk I].” Id. ¶ 9. The Court finds Mr.
Swisher’s purported expert testimony unnecessary and unconvincing. See In re Initial Pub. Offering Sec. Litig., 174
F. Supp. 2d 61, 62-70 (S.D.N.Y. 2001) (denying motion for expert testimony on subject of recusal); United States v.
Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987) (similar).
13
Whatever alleged “slant[ing] or skew[ing]” of the issue there may have been, Mot. at 16—and to be clear, there
was none—was surely undone when the parties had the opportunity to directly present the dispute to the Court when
it made itself available on the teleconference.
11
noting that she “objected” to the presence of “one of the experts for the defense” and that
“[c]ounsel for the plaintiff and the defendant waived the rule on witnesses by consent”). Second,
Law Clerk I’s attendance at the motions hearing was not part of a larger ruse to assist Zuckerman
Spaeder in this case, 14 see Aug. 18, 2015 Order, Ex. C (Decl. I) ¶¶ 10-12, as she communicated
none of her observations or insights, if any, to either Law Clerk II or the Court after the hearing
concluded. 15 Third, although her August 2015 text messages may have implied that she had a
personal bias 16 for Zuckerman Spaeder and the defendant, that possible bias never had an
opportunity to impact the case, as the Court screened her from working on it. See, e.g., In re
Corrugated Container, 614 F.2d at 968.
The plaintiff directs the Court’s attention to two cases where courts have imputed a law
clerk’s bias to a court: Vaska v. State, 955 P.2d 943 (Alaska 1998), and Hall v. Small Business
Administration, 695 F.2d 175 (5th Cir. 1983). See Mot. at 11-14. Each of these cases, however,
are easily distinguishable. In Vaska, the law clerk substantively assisted the trial court on a case
involving the local district attorney’s office, 955 P.2d at 944-45, and “had sexual relations” with
14
This is not remarkable. As is the case for many courts throughout the country, the Court’s law clerks are free to
attend hearings in cases that they are not working on, and they often do.
15
Law Clerk I’s “prompt[ing] of [Law Clerk II]” to assist the Court in memorializing its oral rulings from the
August 5, 2015 motions hearing, Mot. at 17, in no way required her to convey any impressions she may have had
after observing the hearing. See Aug. 18, 2015 Order, Ex. C (Decl. I) ¶¶ 13-14; see also Hunt, 783 F.2d at 1016 (“In
this case, the record indicates that neither of the two clerks in question worked on the case or even talked with the
judge about it to any significant extent. Although the case was assigned for a time to one of the clerks, the judge
characterized this assignment as ‘ministerial only,’ and removed the file from the clerk once the clerk had accepted a
job with the defendants’ firm.”).
16
Having spent almost two years working with Law Clerk I, and despite whatever personal ties she may have to
Zuckerman Spaeder, the Court cannot accept the proposition that she was actually biased in favor of the firm. See
Byrne v. Nezhat, 261 F.3d 1075, 1102 (11th Cir. 2001) (“[W]e note that a law clerk has no incentive to violate a
court’s instruction that he isolate himself from the case and thereby subject himself to discharge. . . . [O]nly a
foolhardy law clerk would purposely circumvent the court’s instruction by attempting to pass on information about a
case.”), abrogated on other grounds by Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639 (2008); Bishop v.
Albertson’s, Inc., 806 F. Supp. 897, 902 (E.D. Wash. 1992) (“[L]aw clerks do not favor parties or classes of parties.
One who did would rapidly lose credibility and the confidence of the Court.”). But for purposes of this motion, the
Court will accept the claim of bias as true.
12
another attorney in the district attorney’s office, id. at 944. Based on these facts, the Court found
that “because of [the clerk’s] personal relationship with one of the . . . attorneys [in the district
attorney’s office], [the clerk] may have had an actual bias in favor” of that office. Id. at 946.
Moreover, the Court also found that there the clerk created a “reasonable suspicion . . . that she
was an active partisan who was willing to break the rules to benefit the [district attorney’s
office],” id. at 946, because the law clerk: (1) sent “a copy of a confidential bench
memorandum” to the district attorney on the case; and (2) “attached a sticky note to the
memorandum” indicating that she was “battl[ing]” on behalf of the district attorney’s office, id.
at 944. No significant parallels can be drawn between the law clerk’s incredible conduct in
Vaska and Law Clerk I’s actions here.
In Hall, the plaintiff filed a class action against the defendant employer, alleging that she
and other female employees were discriminated against in violation of Title VII. 695 F.2d at
175. The case was tried by a magistrate judge, whose sole law clerk previously worked for the
defendant employer and had resigned because of allegations of discrimination. Id. at 176, 178.
The law clerk was also a member of the plaintiff’s certified class, id. at 177, and had accepted
employment with plaintiff’s counsel, id. at 176. Despite the law clerk’s ties to the case, she
participated in pretrial proceedings, attended the trial and took notes, and worked on the final
opinion in the case right before she left her clerkship. Id. at 178. Under these circumstances, the
magistrate judge’s failure to disqualify himself was error, id. at 175, because regardless of
“[w]hether or not the law clerk actually affected the magistrate’s decision, her continuing
participation with the magistrate in a case in which her future employers were counsel gave rise
to an appearance of partiality,” id. at 179.
13
Hall is not analogous to this case. Although the plaintiff is correct that Hall does not
“expressly [hold] that an actual bias is imputed to [the Court only] where the law clerk
[substantively] participates in [a conflicted] matter,” Mot. at 13 n.9, there is no language in Hall,
let alone any other case cited by the plaintiff, that compels imputation of a perceived law clerk
bias to the Court in this case, where Law Clerk I has not substantively participated in the case.
Hall “does not create a mandatory rule requiring the recusal of the judge whenever a law clerk
employed by that judge has a real or possible conflict of interest.” Baugh v. City of Milwaukee,
829 F. Supp. 274, 275 (E.D. Wis. 1993). Rather, consistent with Hall, this Court “had [Law
Clerk II] take control of th[is] case,” which did not “giv[e] rise to [a] conflict.” Id.; see also id.
(where law clerk has conflict, “[t]he practice is not to have the judge recuse himself”).
One common theme emerges from Vaska and Hall—any bias of a law clerk is imputed to
the Court only when the clerk substantively participates in a case where that bias can potentially
manifest itself. 17 See Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1311 (10th Cir.
2015) (citing Hall, 695 F.2d at 180, for the proposition that “[i]f a law clerk continues to work on
the case in which his or her impartiality might reasonably be questioned, . . . the clerk’s actual or
potential conflict may be imputed to the judge.” (emphasis added)); Milgard Tempering, Inc. v.
Selas Corp. of Am., 902 F.2d 703, 714 (9th Cir. 1990) (same); see also Hamid v. Price
Waterhouse, 51 F.3d 1411, 1416 (9th Cir. 1995) (“Even if the judge has no reason to recuse
herself based upon her own circumstances, a law clerk’s relationships might cause the
impartiality of decisions from that judge’s chambers in which the clerk participates reasonably to
be questioned.” (emphasis added)). Otherwise, any alleged law clerk bias cannot be “advanced,”
17
To the extent the plaintiff relies on Parker, that case also lends her no support. There, the law clerk had a “close
familial relationship” with a “senior partner” representing some of the litigants. 855 F.2d at 1524. But the law clerk
substantively participated in the case. See id. (judge noted that law clerk assisted in the preparation of the opinion
on appeal and even “held a hearing in [the judge’s] absence”). There are no similarities to be drawn here.
14
Mot. at 18, because “a law clerk’s views cannot be attributed to the judge for whom the clerk
works,” In re Corrugated Container, 614 F.2d at 968. No case authority compels the Court to
impute Law Clerk I’s alleged bias for Zuckerman Spaeder and the defendant to itself under the
circumstances here.
B. Appearance of Partiality
No well-informed and reasonable observer could call into question the Court’s
impartiality under the totality of the circumstances. The Court screened Law Clerk I from this
case after determining that there was a conflict, and thus, she has never provided any
“substantive input” about this case to either the Court or Law Clerk II. Aug. 18, 2015 Order, Ex.
C (Decl. I) ¶¶ 1, 2, 6, 17-18; see also Aug.18, 2015 Order, Ex. B (Decl. II) ¶¶ 4-5. Incredibly,
the plaintiff sees ambiguity where none exists, as she contends that she is “unclear” as to what
the term “substantive input” means in Law Clerk I’s declaration. Mot. at 15. Let the plaintiff no
longer wallow in uncertainty: in this case, Law Clerk I has neither conducted legal research on
any of the parties’ motions nor did she provide any advice to the Court or Law Clerk II as to the
merits of any motion or any other matter concerning this case. In other words, when ruling on all
motions in this case, the Court has never itself, or through Law Clerk II, relied on any
contribution from Law Clerk I. She did no work on the case, and she did not contribute any
substantive input about any aspect of the case. 18 See Mathis, 787 F.3d at 1312, 1313 (recusal
unwarranted where conflicted law clerk “did not have . . . substantive participation in the case,”
i.e., “the clerk took no part in drafting or researching,” and only performed a ‘ministerial and
18
The plaintiff regards the Court’s screen of Law Clerk I from this matter as inadequate because “[h]ad she truly
been screened from the case, there would have been no reason for her to have any communication with [Law Clerk
II] about this case and there is simply no ‘innocent’ explanation for [Law Clerk I] taking any action in a case” where
she was screened. Mot. at 23. But the case authority does not hold that the Court’s screen is deficient where Law
Clerk I engaged in ministerial tasks associated with the case. Indeed, just the opposite is the case.
15
observational role’”); In re Kempthorne, 449 F.3d 1265, 1270 (D.C. Cir. 2006) (“‘[C]onflicted
advisors who participate or influence a judge require[] the judge’s disqualification’ under [28
U.S.C.] § 455(a), ‘as distinct from an expert or other assistant to the judge who is disinterested
and non-conflicted.’” (second alteration in original) (emphasis added) (quoting In re Kensington
Int’l Ltd., 368 F.3d 289, 311 (3d Cir. 2004))); Hamid, 51 F.3d at 1416 (no recusal because
Court’s decision could not have been “tainted” by conflicted law clerk who “did not work on the
case,” i.e., “gave no advice and did no research”); Milgard Tempering, 902 F.2d at 714 (“[W]hen
the judge promptly removes the [law] clerk from the case, and avoids further communication
with that clerk about the litigation, the appearance of judicial propriety is preserved.”); Hunt, 783
F.2d at 1016 (“In this case, the record indicates that neither of the two clerks in question worked
on the case or even talked with the judge about it to any significant extent.”) 19; Bartel, 786 F.2d
at 490 (court’s recusal generally not required where conflicted law clerk is not working on the
case); In re Horne, No. 13-CV-258-CB-B, 2014 WL 1370151, at *4-5 (S.D. Ala. Apr. 8, 2014)
(“The mere existence of a relationship between a law clerk and a party does not disqualify the
judge; rather, disqualification may be called for only if the law clerk works on the case, i.e.,
makes a substantive contribution to the outcome of the case. . . . A law clerk’s relationship to a
party does not create an appearance of impropriety, as long as the law clerk performs no
substantive work on the case. . . . [N]o appearance of impropriety arises from [court personnel’s]
relationship to a party . . . [where the court’s personnel’s] function is administrative, not
substantive.”); Keyhani v. Chance, No. 86-CV-7520, 1988 WL 109100, at *2 (E.D. Pa. Oct. 18,
19
Hunt even suggests that some insignificant discussion between a law clerk and the Court about a case where the
clerk is screened is permissible.
16
1988) (court did not recuse itself where “notes” from conflicted law clerk did not “form[] the
basis of any of [the Court’s] substantive decisions or rulings in [the] matter”).
The plaintiff argues that the Court’s screening of Law Clerk I was insufficient because
she in fact did participate in the case. See Mot. at 14-18. She represents that she is troubled by
Law Clerk I’s handling of the June 29, 2015 telephonic discovery dispute, attendance at the
August 5, 2015 motions hearing motion hearing, where she allegedly took notes, 20 and reminders
to Law Clerk II to docket orders reflecting the Court’s oral rulings. 21 See id. at 22; Reply at 10.
Such participation, however, does not cast doubt on the impartiality of the Court. At most, Law
Clerk I undertook “ministerial” tasks that had no bearing on how the Court ruled on any motions
in this case. 22 See United States v. Martinez, 446 F.3d 878, 883 (8th Cir. 2006) (recusal
unwarranted where conflicted clerk “served only ministerial functions”); Hunt, 783 F.2d at 1016
(no recusal necessary where potentially conflicted law clerk’s assignment was “ministerial only”
20
Law Clerk II, who was responsible for assisting the Court with the case, transcribed notes. To the extent Law
Clerk I even memorialized her impressions or the like from the hearing, see Reply at 10, they were never brought to
the attention of either Law Clerk II or the Court, see Keyhani, 1988 WL 109100, at *2.
21
The Court’s August 6, 2015 Order permitted the defendant to reopen the plaintiff’s deposition to explore her
grand jury testimony, see Aug. 6, 2015 Order, an issue that the Court did not decide at the August 5, 2015 motions
hearing. In the time between the hearing and the issuance of the Order, with the assistance of Law Clerk II and after
considering the law and the parties’ briefing, see Doe, _ F. Supp. 3d at _ n.1, 2015 WL 5190437 at *1 n.1; see also
id. at *3 n.6 (addressing parties’ disagreement over whether the plaintiff’s deposition can be reopened to examine
her on the substance of her grand jury testimony—an issue that the parties had briefed); Plaintiff’s Opposition to
Defendant’s Renewed Motion for Disclosure of Jane Doe’s Grand Jury Testimony at 3 (“At the conclusion of her
deposition, which lasted for more than [nine and a half] hours, counsel for the Defendant held open the deposition
for the express purpose of deposing Plaintiff regarding her grand-jury testimony, to the extent the testimony was
later made available.”), ECF No. 68, the Court determined that the reopening of the deposition was appropriate.
Despite what Law Clerk I’s August 2015 text messages insinuated, they could not reasonably be perceived to be
accurate, because on August 6, 2015, Law Clerk I merely reminded Law Clerk II to help the Court docket orders
that were in accordance with its rulings from the previous day, Aug. 18, 2015 Order, Ex. C (Decl. I) ¶¶ 13-14, i.e.,
consistent with the disclosure of the plaintiff’s grand jury testimony is the reopening of her deposition, see Doe, _ F.
Supp. 3d at _ & n.6, 2015 WL 5190437, at *3 & n.6.
22
The plaintiff also faults the Court for not having disclosed earlier that Law Clerk I received “a substantial gift,” in
the form of legal services from Zuckerman Spaeder. See Reply at 2. But the Court had no knowledge of whether
Law Clerk I paid for the services, and in any event, had no duty to disclose the “mere presence” of a conflicted law
clerk in chambers, especially where she did not work on the case. United States v. Martinez, 446 F.3d 878, 883 (8th
Cir. 2006); United States v. Reggie, No. 13-CR-111-SDD, 2014 WL 1664256, at *3 (M.D. La. Apr. 25, 2014)
(same).
17
and clerk did not talk with judge about case to any “significant extent”); Anderson v. Bd. of Sch.
Dirs. of Millcreek Twp. Sch. Dist., No. 07-CV-111-SJM, 2011 WL 5325782, at *4 (W.D. Pa.
Nov. 3, 2011) (recusal unnecessary where law clerk had potential conflict because she “had no
real involvement in any of the Court’s substantive rulings,” even though she “attend[ed] . . . [an
oral] argument and docket[ed] the Court’s minutes and the order issued verbally by [the judge] in
open court”).
In maintaining that the Court’s screen was ineffective, the plaintiff cites First Interstate
Bank of Arizona, N.A. v. Murphy, Weir & Butler, 210 F.3d 983, 985 (9th Cir. 2000), where a
bankruptcy court recused itself because its “law clerk continued to have some contact with [a]
case” where the clerk had a conflict of interest, i.e., the clerk accepted employment with defense
counsel in the case. There, the Ninth Circuit found that “the ‘Chinese Wall’ was not
impermeable as it should have been . . . .” Id. The contact in that case included “handl[ing] a
few telephone calls pertaining to procedural matters, observ[ing] some courtroom proceedings,
[and] mark[ing] up a [substantive] memorandum . . . .” Id. (emphasis added). Therefore, the
extent of the law clerk’s contact with a conflicted case in First Interstate greatly differs from that
of Law Clerk I in this case. 23
Further, despite the fact that Law Clerk I insinuated that she somehow influenced the
Court’s decisionmaking process in favor of Zuckerman Spaeder and the defendant in this case
through her text messages to members of the firm, a well-informed and reasonable observer
would understand that it is the Court, and not any of its law clerks, that presides over a case and
resolves disputes between the parties in the case, and unfounded proclamations to the contrary
23
The difference in the degrees of contact becomes even greater when examining the record of the bankruptcy case.
See Opp’n at 15 (citing Opp’n, Ex. D (Transcript of Proceedings, In re Scottsdale Pinnacle Associates, No. 93-
40272-N (Bankr. N.D. Cal. Feb. 7, 1995))).
18
from a law clerk could not reasonably change that understanding. See First Interstate, 210 F.3d
at 988 (“[J]udges (and their law clerks) are presumed to be impartial and to discharge their
ethical duties faithfully so as to avoid the appearance of impropriety.” (emphasis added)); In re
Allied-Signal, 891 F.2d at 971 (“Both bench and bar recognize . . . that judges, not law clerks,
make the decisions. . . . [J]udges are fully capable (and believed by reasonable members of the
public to be fully capable) of taking account of whatever ‘bias’ . . . a clerk [might bring to
chambers].”); Parker, 855 F.2d at 1524 (“It goes without saying that it would be improper for a
judge to delegate the adjudicative function of his office to one that was neither appointed by the
President nor confirmed by the Senate.”); Ohio Valley Envtl. Coal. v. Fola Coal Co., _ F. Supp.
3d _, _ n.4, 2015 WL 4772351, at *31 n.4 (S.D. W. Va. 2015) (“Judges decide cases; law clerks
perform tasks as directed. Here, [the] [d]efendant appears to offer no complaint of bias on behalf
of the Court, instead questioning potential biases of a subordinate staff-member, a term law
clerk. Such concerns are trivial at best. At the risk of stating the obvious, a term law clerk is not
a judge. A term law clerk performs tasks as delegated to him or her by a supervising judge. A
term law clerk does not enjoy the exercise of discretion. That responsibility is reserved for the
judge and the judge alone. A term law clerk merely acts in service of a supervising judge’s
discretion.”); Anderson, 2011 WL 5325782, at *5 (“[M]ost reasonable people would understand
that judges are able to ferret out and set aside the potential biases of their law clerks.”); Bishop v.
Albertson’s, Inc., 806 F. Supp. 897, 902 (E.D. Wash. 1992) (“But law clerks do not favor parties
or classes of parties. One who did would rapidly lose credibility and the confidence of the
Court.”); id. (“Motions of any complexity are typically taken under advisement at which point
the facts and applicable law are once again hashed and thrashed. Once the undersigned is
convinced that further research and reflection would not alter the result, a decision is made and a
19
written disposition entered. When counsel read that disposition, they may do so with confidence
that it is not a rubber stamped version of what the law clerk thinks.”); In re Chandler’s Cove Inn,
Ltd., 97 B.R. 752, 756 (Bankr. E.D.N.Y. 1988) (“[T]he movant’s argument is predicated upon
the alleged misconduct of the law clerk, and not the court. Even if this argument had any
validity, then it is the law clerk, and not the judge, to whom recusal should be directed.”).
Make no mistake about it—Law Clerk I’s decision to send text messages to members of
Zuckerman Spaeder implying that she had a hand in the Court’s orders in this case was
regrettable and senseless, especially where such an implication was completely inaccurate. 24
See, e.g., Bishop, 806 F. Supp. at 901 n.4 (“The case law reflects occasional lapses of judgment
[by law clerks]”). “But . . . the [Court] cannot be made an easy victim of the [law] clerk’s follies
or perceived faults.” In re San Juan, 129 F.R.D. at 412 n.5; see also Prior v. Innovative
Commc’ns Corp., Nos. 1999-CV-232, 1999-CV-236, 2000 WL 1670915, at *2 (D.V.I. Aug. 16,
2000) (similar). At bottom, none of the text messages exchanged between Law Clerk I and
members of Zuckerman Spaeder affected any of the Court’s rulings. See In re Brooks, 383 F.3d
1036, 1038, 1041-43 (D.C. Cir. 2004) (ex parte contacts did not require recusal because they
were “not . . . substantively related to [the] proceedings”); Wallace v. Skadden, Arps, Slate,
Meagher & Flom, LLP, 362 F.3d 810, 812 (D.C. Cir. 2004) (affirming refusal to recuse where
there was neither impropriety nor judicial bias “resulting from the ex parte contact with the
district judge’s law clerk”) 25; Intercontinental Apparel, Inc. v. Danik, Inc., No. 83-CV-1579,
24
At the emergency telephonic conference regarding Law Clerk I’s August 2015 text messages, the Court stated
that those messages “could . . . [give someone] the impression that somehow she had something to do with the
ultimate ruling[s] that [the Court] made . . . .” Aug. 19, 2015 Tr. at 3:22-25. The Court still believes that to be true.
But, of course, Law Clerk I’s text messages must be put into context. A well-informed and reasonable observer
cannot turn a blind eye to other relevant facts that refute that impression.
25
The allegations surrounding the ex parte contact are unclear from the decision. But scrutiny of the underlying
record indicates that the allegations of judicial misconduct bear strong similarity to those in this case. See Brief of
(continued . . . )
20
1984 WL 21974, at *1 (D.D.C. July 18, 1984) (law clerk handled telephonic discovery dispute,
but the court did not recuse itself as there was “no showing of bias” or “prejudice”); see also
United States v. Levy, 390 F. App’x 726, 728 (9th Cir. 2010) (although ex parte contact between
court and litigant was deemed improper, no recusal necessary because it occurred “after” court’s
substantive decision was rendered and did “not reflect such a high degree of favoritism to . . .
[one party] or antagonism to the [other party] that would make fair judgment impossible”);
Thampi v. Manatee Cnty. Bd. of Comm’rs, 384 F. App’x 983, 991 (11th Cir. 2010) (“[Appellant]
cites no binding case law providing that a magistrate must recuse himself if one party engages in
an ex parte communication with the magistrate’s law clerk.”); In re Adbox, Inc., 234 F. App’x
420, 421 (9th Cir. 2007) (despite “several ex parte contacts,” there was “no evidence that those
communications affected the bankruptcy judge’s rulings” so no recusal necessary); Knop v.
Johnson, 977 F.2d 996, 1011 (6th Cir. 1992) (no recusal necessary despite ex parte contacts
because they were “lapses [that] appear[ed] relatively harmless,” as the court did not rely on any
of the contacts in writing its opinion); Aiken Cnty. v. BSP Div. of Envirotech Corp., 866 F.2d
661, 679 (4th Cir. 1989) (no “reasonabl[e] . . . belief that the judge was not impartial,” where ex
parte contacts did not touch upon “substantive issues”); Carranza v. Fraas, 763 F. Supp. 2d 113,
120 (D.D.C. 2011) (explaining that “[e]x parte communications between a judge, acting through
one of his or her law clerks, and counsel or a witness that do not touch upon the merits of the
( . . . continued)
Appellees, Addendum of Exhibits at B29-B33, Wallace v. Skadden, Arps, Slate, Meagher & Flom, LLP, No. 03-
7026 (D.C. Cir. Oct. 2, 2003) (asserting judicial misconduct where defendants through ex parte communication with
court became “privy to the court’s action at or before the time it was taken”); Brief of Appellant at 30-32, Wallace v.
Skadden, Arps, Slate, Meagher & Flom, LLP, No. 03-7026 (D.C. Cir. Sept. 2, 2003) (arguing that there was
appearance of impropriety where there was an “ex parte telephone conference and subsequent faxing of [a]n Order
granting [d]efendants a de facto stay, without notice to [p]laintiff”); Joint Appendix at 257, Wallace v. Skadden,
Arps, Slate, Meagher & Flom, LLP, No. 03-7026 (D.C. Cir. Sept. 2, 2003) (moving to disqualify court on basis that
its “impartiality . . . may reasonably be questioned because of certain ex parte communications between [d]efendants
and . . . chambers regarding [d]efendants’ motion . . . the day after such motion was filed, which resulted in [court]
issuing an order favorable to [d]efendants on that same day and immediately sending such order to [d]efendants’ via
facsimile”).
21
case generally do not warrant relief,” and citing Kaufman v. Am. Family Mut. Ins. Co., 601 F.3d
1088, 1095 (10th Cir. 2010), which upheld determination that a telephone call from a judge’s law
clerk to counsel was harmless and warranted no further investigation or sanctions); AIG Baker
Shopping Ctr. Props., LLC v. Deptford Twp. Planning Bd., No. 04-CV-5849(FLW), 2006 WL
83107, at *12 (D.N.J. Jan. 10, 2006) (explaining that the proscription against ex parte
communications concerns those communications that affect the merits of a proceeding and no
recusal necessary if they do not); United States v. Feneziani, No. 05-CR-290A, 2007 WL
2176490, at *3 (W.D.N.Y. July 27, 2007) (“Nor does the ex parte communication between the
government and the Court’s law clerk require recusal. This communication simply advised the
Court that the grand jury subpoena, which was at issue, was no longer effective because the
grand jury’s term had expired. Such a communication was procedural in nature and did not
affect the merits. Thus, it was not improper.”); Jewelry Repair Enters., Inc. v. E & S Assocs.,
Inc., No. 95-CV-7300, 1996 WL 311462, at *5 (E.D. Pa. June 4, 1996) (“Ex parte
communications to or by a court, while generally improper, do not require a court to disqualify
itself.”) (citing various cases).
Were there any doubt that a well-informed and reasonable observer would view this
Court as impartial, notwithstanding Law Clerk I’s conduct, that doubt can be erased by
consideration of the plaintiff’s own words, or lack thereof, and observations, which weigh
against the Court recusing itself. See In re Allied-Signal, 891 F.2d at 972 (“[T]he parties’ own
words and deeds may help determine the extent to which a knowledgeable observer would see, in
a particular circumstance, a sign of partiality [or lack thereof].”). The plaintiff acknowledges
that the Court has done no wrong in this case. Reply at 9 n.5 (“[The] [p]laintiff does not suggest
any fault of the Court that . . . contact [between Law Clerk I and this case] occurred.”); see also
22
Jewelry Repair, 1996 WL 311462, at *6 (ex parte contact did not require recusal where it “was
made without the Court’s knowledge”). There is no allegation that the Court has any bias
against the plaintiff. See Hunt, 783 F.2d at 1016 (affirmance of refusal to recuse bolstered by
lack of any allegation concerning “any actual bias on the part of the district judge”). Nor is there
any. And finally, even the plaintiff “agree[s]” with what the Court has unequivocally stated
throughout this Opinion—“that the text[] [messages] were unfortunate, but were in jest and
should not be a matter of concern in the case.” Opp’n at 3 n.1 (emphasis added) 26; see also
Reply at 12 (“Surely, the activities of [Law Clerk I] in this case that have been revealed so far
could be construed to be “non-substantive” in that they seem, on balance, relatively
unimportant.”). 27
In sum, the Court finds that the unfortunate text messages exchanged between Law Clerk
I and members of Zuckerman Spaeder, coupled with her minimal ministerial and observational
role in this case—a case in which she has had no substantive involvement—cannot lead a well-
informed and reasonable observer to believe that the Court is partial towards Zuckerman Spaeder
and the defendant.
C. Discovery
The plaintiff contends that she is entitled to conduct discovery and have another hearing
on the issue of recusal before the Court rules on her motion. 28 See, e.g., Mot. at 3 & n.1; Reply
26
Nowhere in the plaintiff’s reply brief is the defendant’s representation contested.
27
Contrary to plaintiff’s characterization, the Court does not find that any ministerial task Law Clerk I undertook in
this case required “discretion, judgment, or skill.” Reply at 12.
28
Had the plaintiff only requested discovery, the Court would deny that request as premature, with respect to this
Court, on the ground that another member of this Court (at this Court’s request) is currently handling discovery
matters related to the issue of recusal. But because the plaintiff also requested an additional hearing regarding the
Court’s refusal to recuse itself from this case, predicated on her general request to conduct discovery, see Reply at
(continued . . . )
23
at 5, 14. The plaintiff is unsatisfied with what the Court and its law clerks have already
represented to the parties because she contends that she “cannot fully evaluate the screening
measures that were in place” and there are “conspicuous inconsistencies and ambiguities” based
on what has been disclosed. Reply at 12-13. The Court sees things differently.
As the Court has unequivocally repeated ad nauseum, Law Clerk I was screened from the
case, such that neither the Court nor Law Clerk II were substantively influenced by Law Clerk I
on any substantive aspect of this case. The details and mechanics of how the Court went about
the screen are, inter alia, irrelevant, so long as once implemented, they shielded Law Clerk I
from substantive involvement in the case. As noted earlier, the Court has only looked to Law
Clerk II for substantive assistance in this case, and the plaintiff does not suggest otherwise. See,
e.g., Opp’n at 3 n.1 (plaintiff “agree[ing]” that “the text[] [messages] were unfortunate, but were
in jest and should not be a matter of concern in the case.” (emphasis added)); Reply at 9 n.5
(“[The] [p]laintiff does not suggest any fault of the Court that . . . contact [between Law Clerk I
and this case] occurred.”). And her minimal involvement in purely ministerial tasks, observation
of a motions hearing, and factually inaccurate text messages sent in jest to members of
Zuckerman Spaeder do nothing to change that reality. Simply put, through the Court’s
representations at the emergency telephonic conference and the two law clerks’ declarations, the
plaintiff has all the information she needs to advance the strongest case she can muster for the
Court’s recusal.
( . . . continued)
12-14, the Court cannot address the merits of the plaintiff’s motion to recuse without first addressing the propriety of
any discovery.
24
In similar circumstances, courts, including the District of Columbia Circuit, have denied
discovery. 29 See In re Brooks, 383 F.3d at 1043-44 (denying discovery where it would lead to
“private communications between a district judge and subordinate judicial officers regarding
matters the judge has expressly stated are procedural and non-substantive”); see also Kaufman,
601 F.3d at 1096 (after prompt disclosure of ex parte contact disclosed, further investigation,
such as “full-blown discovery,” of additional ex parte contacts was unnecessary); Bartel, 786
F.2d at 490 (“The conclusion that a law clerk ‘had to be’ influenced by the actions of a co-
worker is compelled by neither logic nor the record before us. Furthermore, the facts on the
record do not justify further inquiry. This claim is also frivolous.”); Turner v. Murphy Oil USA,
Inc., No. 05-CV-4206(EEF), 2008 WL 2178087, at *1 (E.D. La. May 21, 2008) (“By way of
example, the Court sees this situation the same as if an applicant sought to subpoena the Court’s
law clerk to testify, which courts have routinely held should generally not be allowed.” (citing In
re U.S., 463 F.3d 1328, 1332 n.4 (Fed. Cir. 2006))); United States v. Persico, No. 04-CR-
911(SJ), 2006 WL 2792761, at *2 (E.D.N.Y. Sept. 7, 2006) (where court has already found
recusal unwarranted, “further judicial inquiry” is “obviate[ed]”); Cobell, 237 F. Supp. 2d at 100-
02 (“The sole line of inquiry that movants seek to pursue relates to communications which, as
explained above, neither conveyed information about disputed facts in these proceedings nor
imparted an extrajudicial bias to the presiding judge. Movants have not cited any case or statute
in support of their request, and this Court knows of no case in which a court has authorized
discovery to be taken upon judicial officers.”); Baugh, 829 F. Supp. at 276 (denying request for
discovery in alleged conflict of interest); Terrazas v. Slagle, 142 F.R.D. 136, 139 (W.D. Tex.
29
The plaintiff’s reliance on Mathis, 787 F.3d at 1313, is unavailing. Reply at 13. The Court has already provided
detailed law clerk declarations and sua sponte convened a hearing to disclose the facts surrounding Law Clerk I’s
conduct. See Aug. 18, 2015 Order at 1.
25
1992) (“Thus, deposing the law clerks will not achieve the stated purpose of aiding counsel in
reversing the Court’s orders based on improper decisionmaking by the Court. . . . The judges,
with full knowledge of the facts, have already determined there is no basis to require their
recusal.”); In re Wisdom, No. 11-01135-JDP, 2014 WL 1573134, at *2 (Bankr. D. Idaho Apr.
17, 2014) (quashing subpoena that “attempt[ed] to buttress recusal contentions); In re Lickman,
304 B.R. 897, 903-04 (Bankr. M.D. Fla. 2004) (discussing judicial immunity and quashing
subpoenas served on law clerk because, among other reasons, “if a judge cannot be compelled to
testify in a case over which he or she presides in regards to her or his [decisionmaking], then a
disgruntled litigant should not be allowed to circumvent this by compelling the judge’s staff to so
testify.”); Bova v. Blasdel, No. 96-CV-15083(DAS), 1998 WL 51286, at *1 (Bankr. E.D. Pa.
Feb. 3, 1998) (“This court firmly resists any duty to disclose the contents of its discussion with
its own or any other law clerk.”). Therefore, discovery is unnecessary, as the Court is confident
that Law Clerk I did nothing that influenced the Court or Law Clerk II on any substantive
matters concerning this case. 30
IV. CONCLUSION
This Court has no vested interest in which party ultimately prevails in this case. Its only
interest is to ensure that the parties receive a fair trial on the merits. The Court is confident that
it has acted impartially throughout the life of this case and that it will continue to do so in the
future. If the Court believed otherwise, it would recuse itself without hesitation. And although
30
The defendant and the associate recently filed a Joint Motion to Quash and for a Protective Order. As alluded to
earlier, the Court saw it prudent to refer that motion to another member of this Court for resolution. The Court
leaves open the possibility that the resolution of that motion could result in the Court having to reconsider this
Opinion.
26
the Court has ruled adversely to the plaintiff’s litigation interests on several occasions, 31 these
rulings were based on an objective understanding of the facts and the law that governed these
disputes, rather than on any alleged bias of Law Clerk I, who played no role concerning any of
those rulings. Moreover, the Court has not relied on any extrajudicial source that can reasonably
call into question its impartiality. Accordingly, the plaintiff’s motion for recusal is denied.
SO ORDERED this 30th day of September, 2015. 32
REGGIE B. WALTON
United States District Judge
31
To the extent that the outcomes of the Court’s rulings have any relevance to a recusal motion, see, e.g., Williams
v. Johanns, 563 F. Supp. 2d 27, 32-33 (D.D.C. 2008) (“Although a judge’s ruling for or against one party is
insufficient to show bias, the Magistrate Judge’s various rulings in favor of both parties in this case undermines [the]
[p]laintiffs’ claims of bias even further.” (citation omitted)), the Court notes that not all of its rulings have been
entirely in favor of the defendant, see, e.g., September 21, 2015 Order at 8-9 (unlikely to permit defendant’s rebuttal
expert to testify at trial if the plaintiff proceeds with intended trial strategy); Aug. 5, 2015 Tr. at 26:11-34:18
(agreeing, over defendant’s objections, to have trial conducted in January 2016 rather than in November 2015, and
to refer case to a magistrate judge for settlement discussions); Doe v. Cabrera, 307 F.R.D. 1, 10 (D.D.C. 2014)
(granting in part and denying in part the plaintiff’s motion to proceed under a pseudonym).
32
The Court has contemporaneously issued an Order consistent with this Memorandum Opinion.
27