We recently reported on a commercial trucking case in which a trial court granted a motion to compel discovery from a defendant driver that the driver contends would violate his Fifth Amendment right against self-incrimination. The Texas Supreme issued an emergency stay in that case pending determination of the defendant’s mandamus petition. Now another case has come up to the Court in which a party asserts that complying with a trial court’s motion to compel would subject the party to criminal prosecution under federal law. SCOTX has likewise granted an emergency stay.
The facts of In re Magdoline Elhindi (No. 23-1040; stay granted December 27, 2023) An attorney had a sexual relationship with his client. He videotaped one such encounter without the client’s knowledge. He then sent her a copy of the video. He also sent it to a friend of his, again without his client’s knowledge or consent. Client filed suit. The trial court entered an Agreed Mutual Temporary Injunction barring further distribution of the video by either party. Subsequently, attorney served client with requests for production, including any video of the attorney taken during a three-year date range. Client objected to the request for a video she alleged was unlawful in nature. This video, sent by attorney to client during their relationship, purported to show, according to attorney, attorney having sex with a 14-year-old girl in Egypt. Attorney moved to compel production of the video. At the hearing, client asserted that producing the video would violate federal law. Attorney argued that the video did not constitute child pornography. The trial court ordered production.
Subsequent to the trial court’s order, the FBI contacted client seeking the video. Client filed a motion for leave to release the video to the FBI. The trial court agreed to grant leave once client turned over the video to attorney. Client objected again, but the trial court denied the objection. The Houston [14th] Court of Appeals denied client’s petition for writ of mandamus. Client now seeks mandamus relief from SCOTX.
In her petition, client argues that producing the video would violate 18 U.S.C. § 2252A, which makes it a felony to receive or distribute child pornography in interstate or foreign commerce. Client asserts that she is essentially damned if she does and damned if she doesn’t, since she may be in violation of the law by possessing the video in the first place and will be in violation of the law if she turns it over to attorney. She also points out that the only thing she can legally do with the video is give to law enforcement, but the trial court has blocked that option. Finally, client contends that she is perfectly willing to provide the video to the FBI for a determination of whether it constitutes child pornography. If the FBI determines that it does not, she will hand it over pursuant to the trial court’s order.
People do bizarre things that not only end up in litigation but produce very knotty problems for the courts. The two cases the Court now has before it involve serious questions about the limits of judicial authority when that authority runs up against constitutional or federal law.
