The main objective was to introduce Judge Payne to the issues in this case, and in that this morning’s hearing was a roaring success.

We had filed a request for a protective order, so that the Harris County District Attorney’s Office could provide us with copies of the public information we want (“the Video” and “the Code”) for purposes of litigating its discloseability.

The Office was opposed. They think that they shouldn’t have to provide copies of the information in discovery.

There is simply no provision whereby evidence, whether at trial or in a summary judgment motion, may be held in camera, i.e., kept secret, absent a sealing order under rule 76a, and, in any event, must be provided to opposing counsel.

Abdelnour v. Mid Nat. Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (not a PIA case).

The Office needs to show the judge the Video and the Code to argue that it is not subject to disclosure, and they cannot do that without also showing it to IACLS. That’s the epitome of ex parte communication, forbidden by the rules and by the Constitution.

I told Judge Payne, “I’d like to know how The Office thinks this shakes out, if they don’t produce the information in discovery.”

Judge Payne said, “I was about to ask that.” She did, and The Office (Katie Teeters, bless her heart) showed no indication of even understanding the question. They are the State, and unaccustomed to being challenged by a judge. Judge Payne was patient with them, but eventually gave up.

Judge Payne granted our protective order, but left for another day the question of whether The Office would be compelled to produce the information in discovery.

We only sent The Office a request for production on Sunday (the earliest we could have done so was last Thursday) and they have 30 days to respond to that, then we can file a motion to compel. They will produce the information to Judge Payne in camera, and she will decide whether they have to produce it in discovery. That’s what her in camera review is limited to. If she says they don’t have to produce it, they still have no evidence.

So … we can do it another way: given that they have the burden and cannot meet it without producing the information in discovery, as soon as they have had a reasonable opportunity and have failed to comply with our request for production we can simply file a no-evidence motion for summary judgment.

We don’t need the Video and the Code in evidence to win; The Office does.

Does this sound like fun? Join us.