I previously wrote about the tech company known as Anthropic here. This case concerns Department of Defense slapping a label on the company that it was a supply chain risk. Historically, that label has only been applied to companies in adversarial foreign countries.

The Federal Judge in San Fransisco agreed with the company and issued a preliminary injunction against the Department of Defense. After a hearing and, I expect, very lengthy briefing by both sides, the Judge wrote:

“Nothing in the governing statute supports the Orwellian notion that an American company may be branded a potential adversary and saboteur of the U.S. for expressing disagreement with the government,”

That is stark language for a U.S. District Judge. It is fair to conclude that the evidence of DOD’s retaliatory intent was strong. Of course, as always with this administration, it did not help DOD’s case that Pres. Trump said some very critical things just before DOD applied this label to Anthropic. Just based on public comments, it did indeed look like the administration was engaging in reprisal against the company.

See CNBC report here.

Discovery is a central step in all lawsuits. Perhaps even more so in employment cases. Since, in almost every employment suit, the employer has 90% of the pertinent documents. But, the discovery obligations apply to both sides. In one recent case, Hernandez v. Results Staffing, Inc., No. 4:14-CV-182 (N.D. Tex. Sept. 1, 2017), the plaintiff, Jose Hernandez called in sick the day after his Reserve drill weekend. On Monday, Mr. Hernandez told his boss that he had to go to the Emergency Room, because he aggravated a bad back while at drill the prior weekend.

RSI then fired Hernandez, because he did not call in four hours prior to his sick day. Hernandez filed suit under the Uniformed Services Employment and Reemployment Act (USERRA). Under USERRA, a Reservist is entitled to time off as necessary to treat an injury sustained while on military duty. As is normal in such suits, the employer asked for his medical records related to the ER visit. The plaintiff produced a return-to-work medical note and that was all. The Plaintiff also signed a medical release, which would allow the employer to obtain Hernandez’ medical records on their own.

The Fax Machine

Just a few days before trial, the Plaintiff’s attorney, Ryan Ray, came into possession of the medical records related to Hernandez’ ER visit. He faxed them to the Defendant. But, unknown to Mr. Ray, the fax did not go through. Among those records was a document stating that Hernandez came in mainly due to a headache, but also due to lower back pain.

The suit was before the infamous Judge McBryde in Ft. Worth, Texas. In a bench trial, Judge McBryde found in favor of the employer. Hernandez appealed and the Fifth Circuit reversed the finding and found in favor of the plaintiff. A key issue was the reason for Hernandez’ ER visit. At the oral hearing before the Fifth Circuit, the court asked the defense lawyer if there was any rebuttal evidence to Hernandez’ claim that he went to ER due to back problems incurred at his drill weekend. The defense lawyer told the court no.

All this time, the Defendant never requested Mr. Hernandez’ medical records themselves. They had his signed release and could have done so. But, they did not.

Additional Discovery

Over a year later, the Defendant did come into possession of the ER records – apparently as part of litigation over Mr. Hernandez’ damages. The employer then submitted a rare Fed. R.Civ.Pro. Rule 60(b) for relief from judgment and and Rule 37 motion for sanctions. The Plaintiff defended himself on three grounds:

  • the Fifth Circuit rendered the judgment. Therefore, the district court (Judge McBryde) lacked jurisdiction,
  • the employer had an opportunity to obtain the records, but did not do so, and
  • the plaintiff complied with his discovery obligations by providing the employer a signed release.

It probably does not need to be said that the plaintiff lost before Judge McBryde. So, the real appeal was at the Fifth Circuit. But, the higher court was at least as dismissive of the plaintiff’s arguments.

The appellate court noted rightly that the obligation to produce medical records in your possession is not satisfied by providing a signed release. If the party has records that have been requested, he must provide them. Period. But, with all the fuss over this breach of discovery obligations, both Judge McBride and the Fifth Circuit were laser focused on the ER medical record. The medical document said the chief complaint was headaches. The two court opinions mention only in passing the concomitant lower back pain. The district court flat accused the Plaintiff and his wife of lying at trial – apparently because neither one mentioned the headaches. They both only discussed the terrible back pain.

The Fifth Circuit was equally accusatory, finding support in the record for the finding that Mr. Hernandez and his wife had lied. It appears none of the judges considered that Hernandez likely went to ER with both headaches and lower back pain. But, the testimony at trial would have been different if the defense attorney knew that Hernandez also complained about headaches.

Release of Medical Records

Regarding Plaintiff’s argument that he did provide a signed release, the Fifth Circuit noted correctly that the Federal rules do not allow gamesmanship and deception. In the Fifth Circuit’s view, providing a signed release simply meant the plaintiff knew there were risky medical records out there, but was hoping the employer would not find them. My opinion, that assumption is not based on the record. If the plaintiff really wanted to hide medical records, he would not have signed a medical release.

The Fifth Circuit then found that the plaintiff had prevailed due to misconduct. That misconduct included the failure to disclose Mr. Hernandez’ medical records those few days before the trial. The higher court found that Mr. Ray had deliberately suppressed the discovery material. He certainly must have been aware of the records when he appeared before the Fifth Circuit the first time. At that oral hearing, he would have heard the defense attorney tell the court that there was no counter-vailing evidence to the claim that Hernandez went to ER due to a military related injury. So, on their second appeal to the Fifth Circuit, the appellate court affirmed the district court’s relief from judgment – meaning it allowed the district court to remove the judgment in favor of the plaintiff. See Hernandez v. Results Staffing, Inc. 907 F.3d 354 (5th Cir. 2018).

The Plaintiff then filed a motion to reconsider at the district court level and lost. The parties then reached a settlement.

Sanctions

At that point, the district court severed attorney Ray from the original lawsuit and started an action addressing Mr. Ray’s alleged suppression of evidence. The judge initiated an action to disbar Mr. Ray from the Northern District of Texas. The Judge eventually did so. Mr. Ray then appealed.

But, the decision was largely foregone at this point. One district judge and one court of appeals panel had already found that Mr. Ray deliberately suppressed discovery material. On appeal a new panel of appellate judges found that Mr. Ray failed to comply with his discovery obligations. The court agreed that disbarment from the Northern District of Texas was appropriate. See In Re Ray, 951 F.3d 650 (5th Cir. 2020).

Reality

In reality, what likely happened was that Mr. Ray thought he had faxed the material. But, he should have known the fax did not go through. Fax machines and fax services always notify the sender if a fax was successful or not. Mr. Ray should have retained such a confirmation as proof. Either he did not save the confirmation or he did not look for it. Too, it was unwise to argue a technical issue regarding jurisdiction. If Mr. Ray simply admitted to a foul-up in his office, things might have turned out differently. He might have done better if he had simply accepted some responsibility for not providing the medical records.

Too, the problem for the plaintiff is that he likely suffered both headaches and back pain on that fateful Monday. His back pain stemmed from his service in the Iraq war. But, with all the fuss over what his lawyer did or did not do, it was easy for the district court – the infamous Judge McBryde – to lose focus on the full range of complaints Mr. Hernandez presented to ER. Judge McBryde was sanctioned by the Fifth Circuit in 1997. It is rare as snow in July for a Federal judge to be sanctioned. He was known to abuse lawyers. But, he particularly abused plaintiff lawyers.

The act known as “bills of attainder” is old. It goes back to pre-1776 England. A bill of attainder occurred when Parliament would pass a bill that settled a legal dispute. A bill of attainder could find that certain creditors were not in fact owed money, or that certain heirs cannot in fact inherit. It was a way around the judicial process, a path available only to the well-connected. So, in the days after 1776, many state legislatures prohibited bills of attainder. The U.S. Constitution adopted in 1787 specifically prohibited bills of attainder and its evil twin, ex post facto laws. U.S. Const., Art. Sec. 9.

The Trump administration right at the start of its current term issued several Executive Orders targeting certain big law firms. Four courts blocked those EOs, in part because they acted like bills of attainder. Those EOs specifically found those big law firms guilty of perceived offenses with no process. Yet, despite losing all the four challenges to those Executive Orders, the Trump administration has essentially issued another bill of attainder like decision. It decided that Anthropic, the AI company, was a threat to the U.S. supply chain. That designation has in the past only been applied to companies selling goods to China.

I previously talked about bills of attainder here.

Anthropic has filed suit against the U.S. government regarding this designation. It hired one of the four big law firms who won their suits regarding the Executive Orders, Wilmer Cutler Pickering Hale & Dorr. Just based on the timing of the government’s designation, it is clear the U.S. government is retaliating against Anthropic over its refusal to allow its AI engine to be used for domestic surveillance and fully autonomous weapons. It is a suit that Anthropic is very likely to win. But, for today’s U.S. government, it is never about winning. See ABA Bar Journal report here for more information.

I previously wrote about Pres. Trump’s clearly unlawful attacks on big law firms here and here. Since then, all four big law firms which challenged that very strange Executive Order won motions to dismiss at the district court level. That means even without a formal hearing, the judges agreed that Pres. Trump’s silly EO held no water. Those four different cases were then consolidated on appeal. The appeal was lodged with the D.C. Court of Appeals in Washington, D.C.

Wisely it seemed at the time, Dept. of Justice on Monday, March 2, filed a motion seeking to withdraw its appeals against the four big firms. For about 24 hours, it appeared the firms had won. It appeared DOJ decided against pursuing a futile appeal. But, no, the next day, Tuesday, DOJ filed a new motion asking to withdraw its Monday motion. DOJ said it now wished to pursue these appeals, after all. “Oops,” they said, sort of. The Department pointed out that the Court had not yet ruled on its Monday motion asking to drop the appeals.

In the legal business, like most businesses, its is rather embarrassing to change your mind within 24 hours. I am sure some higher level person, seeing the publicity about the four big firms claiming victory, prompted a change. But, now, how must it look to three busy, over-worked appellate judges at having to work on an appeal that was withdrawn for 24 hours? This inability to make up its mind is the opposite of effective advocacy. Effective advocacy involves reminding the court at every step that you believe in your case. Changing your mind twice in two days is the oppostivce of effective advocacy. See ABA BA Journal here for more information.

West Virginia US District Judge Joseph R. Goodwin has criticized ICE tactics before. But, now he has found their tactics to violate the Fourth Amendment to the U.S. Constitution. ICE arrested an immigrant from El Salvador while they were wearing masks, driving unmarked vehicles, and without a warrant of any sort. The immigrant, Anderson Jesus Urquilla-Ramos, came to the US as a child. He has a pending asylum request and a work permit. That means he is here legally. Yet, ICE arrested him and imprisoned him with no due process of any kind, said the Judge. Judge Goodwin wrote:

“The systematic character of this practice and its deliberate elimination of every structural feature that distinguishes constitutional authority from raw force place it beyond the reach of ordinary legal description.It is what the Fourth Amendment was written to prevent. It is what the due process clause of the Fifth Amendment forbids.”

Mr. Urquilla-Ramos was arrested after a traffic stop. The agents were driving an unmarked wehilce with no license plates. They stooped Urquilla-Ramos supposedly because he had a plastic cover on his own license plate. As the Judge said, these are exactly the sorts of things the Founders rebelled against. See ABA Bar Journal report here for more information.

The Trump administration Immigration and Customs Enforcement agency has detained over 400 immigrants illegally, according to statistics gathered by Reuters news agency. Hundreds of U.S. District Judges have found ICE’s actions in detaining immigrants without opportunity for bail to violate federal statute.

U.S. District Judge Thomas E. Johnston wrote in one such case that the agency has done so in complete “disregard [of] the current law as it is clearly written.” Judge Johnston was appointed to the Southern District of West Virginia by Pres. George W. Bush. ICE has detained 68,000 immigrants, which has resulted in 20,000 federal lawsuits seeking their release. More than 400 Federal judges ruled in over 4,421 cases that ICE is holding those immigrants illegally. There has been an explosion in U.S. District Courts of writs of habeas corpus. Those writs have been filed directly because those immigrants were not given a chance to post bond while their cases proceed. Non-detention related case work has slowed to a crawl in U.S. District courts as Judges deal with this sudden growth.

See ABA Bar Journal news report here.

Bexar County Judge Rosie Speedlin Gonzalez has been indicted by the Bexar County District Attorney for placing a defense lawyer in handcuffs and ordering her restricted to the jury box. The incident occurred over a year ago. Elizabeth Russell appeared in court and asked for time to confer with her client in preparation for a motion to revoke probation hearing. Somehow, that request led to the Judge ordering a defense attorney to be handcuffed and forced to stay in the jury box.

The Judge has been charged with Unlawful Restraint by a Peace Officer, which is a second degree felony. That offense punishable by 2 to 20 years in prison and a fine of up to $10.000. See San Antonio Express News report here for more information. See also a ABA Bar Journal report here. The Bexar County District Attorney’s office has recused itself from prosecution of the case. A special prosecutor has been appointed.

Suspended

A week after Judge Gonzalez was indicted, the state Judicial Commission on Judicial Conduct placed the judge on suspension. Her suspension will last until the criminal charges are resolved. Judge Gonzalez has been in trouble with the state Judicial Commission before. She was investigated in 2023 for allegedly congratulating attorneys on Facebook who had won in court and for displaying a pride flag in her courtroom. She was cleared of those accusations. See San Antonio Express News report here.

So, what happened that the Judge felt the need to place a defense lawyer in handcuffs? According to a more recent Express-News report, Ms. Russell appeared in court with her client on a motion to revoke probation. The client had agreed earlier to deferred adjudication. That meant if he completed his probation successfully, the charges would be dismissed. But, he did something that amounted to a possible violation of that probation. So, he was now in court to discuss that new charge and how he would plea to the new charge.

Motion to Revoke

If he pleads guilty or something like guilty, his earlier probation – the deferred adjudication – would be revoked. He would then have to deal with two charges, not just the new one.

According to the Express-News, the client at first pleaded “no contest.” Russell – apparently realizing the client had messed up and invoked the wrong plea – then spoke up and said her client wished to withdraw that plea and change it. Judge Gonzalez then accused Ms. Russell of coaching her client. The lawyer objected to that accusation. The Judge replied, essentially, “too bad, it’s already on the record.” The Judge then accused Ms. Russell of being argumentative. There was more back and forth.The lawyer then asked to recuse herself. At this point, both the lawyer and the Judge likely knew that recusal would postpone everything. Judge Gonzalez then ordered the bailiff to place Ms. Russell in custody. Still, Ms. Russell objected, noting that she cannot be held in contempt without a hearing. The Judge said no, she did not. She insisted she rums everything in her courtroom.

Later, Judge Gonzalez asked Ms. Russell if she could conduct herself professionally. The lawyer answered, yes. The Judge then ordered the handcuffs removed. See another San Antonio Express-News report here for more information.

It is, of course, exceedingly rare for a Judge to handcuff a defense attorney in the courtroom. The lawyer was correct that she cannot be held in contempt without a hearing. I am not a criminal law expert, but cannot imagine by what authority the Judge could handcuff a lawyer in court and hold her there – there than contempt. My fuzzy memory about criminal court is that defendant can indeed withdraw his plea. The courtroom is no place to play “gotcha.”

In early 2024, the Equal Employment Opportunity Commission adopted Enforcement Guidance interpreting the proscription of Title VII against harassment based on several categories. The entire Guidance was the product of ten years of research and asking for public comments. It applied to harassment based on race, gender, disability, etc. It also applied to harassment based on gender identity. In early, 2026, Pres. Trump fired two of the five members of the EEOC Board. The two who were fired were Democratic appointees. That termination violated US Supreme Court precedent. But, it appears the new US Supreme Court will probably uphold those firings.

With two fewer Democrat appointees, the EEOC Commission then voted by a 2-1 vote to rescind that Enforcement Guidance on Harassment in the Workplace. The EEOC took this move on Jan. 22, 2026. It has no plan to replace the guidance.

EEOC Guidance

The EEOC has published a series of Guidance papers since the 1970s. They apply to all the discrimination statutes and address specific issues. Today, there are maybe 20 such different papers, all providing guidance on the various types of discrimination. They provide guidance to employees, but especially to employers regarding the meaning of the various discrimination statutes. That guidance is essential to Human Resources offices across the country who wish to avoid problems with discrimination. As one well-known defense lawyer said:

“I conduct a lot of harassment training, and it goes down a lot more easily if you say, ‘This isn’t me saying this, this is what the EEOC says,’ or ‘This is what the courts say,’” she notes. “It’s nice to have some authority to point to when you’re telling people things they may not want to hear.”

Robin Shea with the Constangy law firm. The guidance papers always include several hypothetical situations that help explain the meaning of these complicated statutes.

The EEOC rescinded the guidance on harassment apparently because it included gender identification as one of its protected classes. Okay, but that does not explain why the entire Guidance paper had to be rescinded.

Vacated

In May, 2025, Judge Matthew Kacsmaryk of the Northern District of Texas vacated the gender identity portion of the Harassment Guidance – but not the entire 189 pages of examples and explanation. See State of Texas v. EEOC, No. 24-CV-173(N.D. Tex. May 15, 2025). But, that is an odd decision. Judge Kacsmaryk vacated guidance. He did not vacate an actual regulation or statute. EEOC Guidance is not typically found to be binding. See, e.g. EEOC v. Catastrophe Management Solutions, 852 F.3d 1018, 1031 (11th Cir. 2016) (“T]he rulings, interpretations, and opinions” of an agency charged with enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance”). I myself have read many decisions in which courts simply ignored the EEOC guidance that was offered in a case. Most judges would agree that EEOC guidance is just that, guidance, not statutory law or regulation. Judge Kacsmaryk stretched the facts quite a bit in his May, 2025 decision to find this guidance had some binding effect. Heck, even this harassment guidance itself said it was not legally binding.

Odd Decision

Judge Kacsmaryk’s odd decision in Texas v. EEOC was not appealed. They did not appeal, probably because by that time, the Trump DOJ was in place and the Department of Justice withdrew from the case. Small Business Majority, Main Street Alliance and American Sustainable Business Council, representing tens of thousands of small businesses, opposed the attempt by Texas to vacate this harassment guidance. Those three groups submitted an amicus opposing the lawsuit against the harassment guidance. Their brief emphasized the need for clear guidance for businesses.

This rescission by the EEOC represents a remarkable waste of time and careful explanation. Over the years, I have come to develop a great appreciation for the quality of the EEOC’s various guidance papers. See ABA Bar Journal report here for more information.

Judge Fred Biery has developed a reputation for humor and an insistence on courtroom courtesy. He once ordered a set of contrary lawyers to kiss on the lips in front of the Alamo with cameras present. He has ordered other mis-behaving lawyers to sit in timeout in the rotunda of the old Federal courthouse. I previously wrote about Judge Biery here. He quotes songs and movies in his opinions. He prefers humor when he can. So, when Judge Biery expresses anger in an opinion, we should all take notice.

In the case of Arias v. Noem, No. SA-26-CV-425, the Judge is angry. This case concerns a writ of habeas corpus filed for one Liam Conejo Arias. The little boy who was arrested in Minneapolis wearing a bunny ears hat and sporting a Spiderman backpack. Just five years old, he was used as bait by ICE to lure his father and mother out of their house. Little Liam was sent to the immigration facility in Dilley, Texas.

Writ of Habeas Corpus

Judge Berry ordered that the writ be granted and that Liam be released. The Judge could have simply issued a one sentence order granting the writ. But, he issued a three page order that chastises and even lectures the Federal government. He starts by acknowledging that he has deported many immigrants in his thirty years as a Federal Judge:

“The case has its genesis in the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children. This Court and others regularly send undocumented people to prison and orders them deported but do so by proper legal procedurs.”

He then discusses provisions of the Declaration of Independence which objected to authoritarian government practices in 1776. Referring to the detention of Liam, he notes correctly that this “perfidious lust for unbridled power and the imposition of cruelty” knows no bounds. He points out that the government has “damned” the rule of law . He mentions Ben Franklin’s famous quote that we have a republic “if we can keep it.” He then closes with a a reference to how he sees his role: “With a judicial finger in the constitutional dike.” The Judge then included a picture of little Liam wearing his bunny hat standing alone in the cold Minnesota day.

The Judge then cites two verses from the Bible below Liam’s picture: Matthew 19:14 and John 11:35. In the verse from Matthew, Jesus tells his followers to let the children come to him. John 11:35: “Jesus begins to weep.” Yes, Judge, we are sure Jesus shed a few tears over the arrest of a five year old boy wearing a bunny ears hat.

See Judge Biery’s opinion here.

In Brown v. Child Advocates, Inc., No. 14-24-00012-CV, 2023 WL 2261414 (Tex.App. Hou. April 15, 2025), the court addresses a frequent issue in today’s courthouses: when are electronic signatures valid? In this matter, it appears the case did actually proceed to arbitration. Since, the employee submitted a motion to vacate the arbitration award. The employer also moved to compel arbitration.

In any event, the court addressed the validity of the purported signature. The court pointed to the requirements of the Texas Uniform Electronic Transactions Act, codified at Tex. Bus. & Com.C. §322, et seq. The requirements of the TUETA were also addressed in Aerotek v. Boyd, 624 S.W.3d 199 (Tex. 2021). As the Brown court pointed out, to show a valid electronic signature, the entity proposing the signature must show the efficacy of the procedures used to ensure only the named person was capable of making the signature.

Aerotek Requirements

The court found that Child Advocates did not show: 1) that the signature was created by an account that could only have belonged to Ms. Brown, 2) security procedures that would have prevented unauthorized access by users other than Brown, and 3) that all users were required to complete all steps before proceeding on with the signature. But, the employer did produce an arbitration agreement with Brown’s apparent signature. This constituted a scintilla evidence, such that the court could proceed to the next step.

At this stage, however, Brown averred that she:

  • never intended to enter into an arbitration agreement
  • could not confirm the signature as hers
  • did not recall signing such an agreement
  • did not receive such an agreement after it was allegedly signed
  • if she had known about the opt-out step, she would have chosen not agree to the arbitration, at all

In short, Ms. Brown presented essentially the same evidence offered by Salvador Meraz in Solcius, LLC v. Meraz, No. 08-22-00146-CV, 2023 WL 2261414 (Tex.App. El Paso 2022). Neither plaintiff offered any more evidence than essentially, “I do not recall signing the agreement and that is not my signature.” Yet, one case resulted in arbitration, while the other one did not.

One important difference is that in the Brown matter, the employer apparently offered simply no evidence regarding its procedures for electronic signatures. While, in the Meraz case, the proponent of the electronic signature testified that only a person with Mr. Meraz’ email address and IP could have signed the document. And, Mr. Meraz acknowledged receiving electronic copies of the agreement after the work had already been performed. The Meraz court vowed that action as indicating that merit had agreed to conduct his transactions electronically.

See Brown v. Child Advocates here. See the decision in Solcius v. Meraz here.