Justice Evan Young

Last month a deeply divided Texas Supreme Court lifted an emergency stay and denied the relator’s petition for a writ of mandamus to block a trial court order compelling her to turn over a video to opposing counsel’s lawyer that she asserts could expose her to federal criminal prosecution. After hearing from several amici, including a group of Texas legislators, in support of the relator’s motion for rehearing, however, the Court has once again issued an emergency stay while it awaits a response to the motion.

As you may recall, 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 argued 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 asserted 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 pointed 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, she contended 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.

Five justices of the Court rejected these arguments. In a strongly worded dissent, Justice Young, joined by Justices Lehrmann, Blacklock, and Devine, would have granted the petition on the basis that the district court abused its discretion by ordering the relator to turn the video over to opposing counsel before giving it to the FBI for a determination of whether it contains child pornography. Justice Young wrote:

I cannot see why any Texas should order someone to do other than provide [the video] to law enforcement.An allegation of child sexual abuse is no minor irritant but is among the most deplorable of crimes. Recording such a crime is an additional crime. No Texas court should order purported child pornography to be handled other than through law enforcement, regardless of whether doing otherwise would subject parties like Elhindi to federal criminal prosecution. An order that instead requires transferring alleged child pornography to private parties before giving it to law enforcement would be reckless and needless. If we knew for certain that the video was child pornography, ordering it to be privately retained and further distributed would be unimaginable—no less than directing that alleged illegal drugs or other contraband be handed over to a private party. And if it was certain that the video is not child pornography, involving the FBI at any stage would be wasteful. But the order here anticipates involving the FBI—just later.

The amicus brief filed by the Texas legislators quotes extensively from Justice Young’s dissent, and it appears that the Court has taken note.

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