Bench Memos

Moonlight Fire “Fraud on the Court” Briefing Complete

A couple weeks ago, the defendants in the federal Moonlight Fire litigation filed their reply brief, completing scheduled briefing on whether the government committed a fraud on the court by failing to disclose significant contrary information to the defendants in the case before entry of a settlement agreement. Oral argument on the issue is scheduled for April 13, 2015.

As I’ve noted before, the Moonlight Fire litigation centers around liability for a 2007 forest fire in California. The litigation heated up after a state trial court sanctioned the state government last year for numerous discovery abuses and failure to disclose significant pertinent information. As punishment, the state trial court dismissed the case and ordered the state government to reimburse the defendants for tens of millions of dollars in legal fees. 

After the state court sanctioned the state government, the defendants – who had settled a federal suit rather than face literally a billion dollars in federal liability – sought to set aside the settlement, since they had only learned of significant exculpatory information after agreeing to the government’s terms. Two federal attorneys who had previously worked on the government’s case signed declarations for the defendants about government-side discovery shenanigans, and alleging that the government was more interested in suing a defendant with deep pockets than it was concerned about truth and justice.

The 130-page reply brief minces no words (citation omitted):

The government has constructed the perfect companion piece to the rest of its misconduct in the Moonlight Fire matter. During the investigation of this fire, the government found what it wanted to find and either covered up or destroyed contrary or harmful evidence. During the drafting of its opposition to Defendants’ briefing, the government collected a pile of unanalyzed legal fragments and pieced them together to create a version of reality that has little relationship to the truth. As was the case with the investigation and prosecution of this matter, the government has again left behind and failed to reveal critical elements of what this Court deserved – in this instance, a thoughtful a discussion of what actually constitutes fraud on the court. As Judge Nichols found after his thorough review of the jointly prosecuted state actions, this case has long been (and today remains), an effort to “steamroll the truth.” The government has now turned that effort on the law itself.

Reading the defendants’ brief is a little bit like watching a judo master taking his opponent’s most forceful blows and skillfully turning them against him. In addition to mocking the government for responding to the court’s demand for “focused” briefing “limited to” the applicable legal standards by filing 3,500 pages of factual appendices and transcripts, the defendants also highlight the government’s casual dismissals of the trial court judge’s integrity. It’s excellent advocacy, and well worth your time.  

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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