Posse comitatus

By | 4th July 2012

Most people are at least vaguely familiar with the concept of a sheriff, either from watching too many westerns or possibly from the stories of Robin Hood and his ongoing battles with the then Sheriff of Nottingham.

For a more accurate and current description of a sheriff, the High Sheriffs’ Association of England & Wales defines the current role of a (High) Sheriff as follows:

The Office of High Sheriff is an independent non-political Royal appointment for a single year. The origins of the Office date back to Saxon times, when the ‘Shire Reeve’ was responsible to the king for the maintenance of law and order within the shire, or county, and for the collection and return of taxes due to the Crown. Today, there are 55 High Sheriffs serving the counties of England and Wales each year.

Whilst the duties of the role have evolved over time, supporting the Crown and the judiciary remain central elements of the role today. In addition, High Sheriffs actively lend support and encouragement to crime prevention agencies, the emergency services and to the voluntary sector. In recent years High Sheriffs in many parts of England and Wales have been particularly active in encouraging crime reduction initiatives, especially amongst young people. Many High Sheriffs also assist Community Foundations and local charities working with vulnerable and other people both in endorsing and helping to raise the profile of their valuable work. The High Sheriff Association adopted DebtCred and Crimebeat in recent years in response to specific areas of need.

High Sheriffs receive no remuneration and no part of the expense of a High Sheriff’s year falls on the public purse.

I claim some knowledge about this because I have for many years been the Under Sheriff for Norfolk. As such I act as the official deputy of the High Sheriff and am appointed by him/her annually to discharge any legal functions on his/her behalf and to advise on dealings with the judiciary.

In the US the role of Sheriff is, of course, still very much alive and remains as part of the system of law enforcement. Many towns and cities have sheriffs and their deputies to maintain law and order.

Posse comitatus (today usually shortened to posse) was the authority of the sheriff to gather together a group of people to help in keeping the peace or pursuing and arresting a felon. The term derives from the Latin meaning literally to have the right to an armed retinue. Many westerns contain scenes of an embattled sheriff conscripting a group of males to ride off down a dusty street in pursuit of some miscreant.

So, you may wonder, why am I going on about this?

Apart from my interest in matters historical with which the occasional reader will be familiar, I wanted to draw your attention to a modern day and self-styled sheriff whose pronouncements in the field of e-discovery have already brought him to prominence.

Magistrate Judge Facciola of the US District Court for the District of Columbia is well known as an advocate of e-discovery solutions and he has now evoked the spirit of an earlier age by saying in the course of a recent judgment that:

“…..there is a new sheriff in town-not Gary Cooper, but me.”

Judge Facciola was delivering judgment (6th June 2012) in the case of Taydon v Greyhound Lines Inc and a report of what he said can be found here: High Noon in DC: Judge Facciola Lays Down the Law on Discovery Cooperation [Mark S Sidoti, E-Discovery Law Alert, 15th June, 2012]

The parties had filed 40 motions for discovery and filed thousands of pages of exhibits which, the judge said, “will cease.” Essentially, the judge ordered the parties to make genuine efforts to cooperate over discovery and also ordered that when they had done so they were to submit their plan for discovery to him for approval. The judge said further:

“I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.”

This sounds very close to the regime which will confront litigation lawyers here from April 2013, and as such, is worthy of comment here.

I like the idea of the judge gathering together his posse to pursue the felons who refuse to deal with disclosure in a modern and sensible way. As the author of the article, Mark Sidoti, puts it:

“We can only hope that more judges will follow “Sheriff” Facciola’s lead in not only pressing parties to cooperate, but in making themselves readily available to assist cowboys that have difficulty understanding that Wild West ways of litigation may be coming to an end.”