2d Cir. addresses "Zippo"
Random thoughts -- and helpful links and resources -- from a Buffalo lawyer who loves practicing law. My practice focuses on federal, municipal, and appellate litigation. My name is Jeremy A. Colby and I approve of this Blawg -- which does not represent the thoughts or views of my past, present or future: firm(s), clients, employers, schools, professors, educators, friends, and/or relatives (herein collectively defined as "Anyone Else"). See "Disclaimer" below.
The USSC recently held in Scott v. Harris, 127 S. Ct. 1769 (2007), that a section 1983 plaintiff could not survive summary judgment by making claims that were inconsistent with the video footage from the police cruisers that chased him at speeds of up to 100 miles an hour. Justice Scalia authored the decision, which held that the officer's attempts to force the suspect off the road were reasonable in light of a dangerous high-speed chase that posed substantial and immediate risk to others.
Several recent decisions from DC Courts have resticted the ability of the federal government to refuse compliance with subpoenas. Federal agencies often claim that they are not required to comply based on citation to Touhy (i.e., Touhy v. Ragen, 340 U.S. 462, 468 (1951)) regulations. They also often argue that the federal government is not a "person" within the meaning of Rule 45. Judge Urbina of the DC District recently issued a decision in Securities Exchange Commission v. Selden (In re Subpoenas), __ F. Supp. 2d __, 2007 WL 1241862, at *2 (D.D.C. 2007), which held that “Touhy in no way stands for the proposition that agency regulations alter the procedures set forth in the Federal Rules of Civil Procedure or that agency regulations can preclude the production of documents ‘that are relevant to a judicial proceeding.’” and that “[t]o the extent that the FDA’s [Touhy] regulations prohibit that which the Federal Rules expressly permit . . . those regulations fail." Thanks to Cale Keable in Skadden's Boston office for a fine job litigating Selden (which is linked above).