Lowering the Bar

Arguments Commence in New Zealand Spear-Assault Trial

Let's stick with New Zealand, as long as it is going to keep generating stories like these.  Last week: false claim of wombat rape.  Monday: assault with a deadly hedgehog.  Tuesday: opening arguments in the trial, on assault charges, of a man who speared the thief who had broken into his car.

New Zealand sounds interesting enough that I would consider moving there if it weren't so goddamn dangerous.

Sam Spence is on trial in the High Court at Whangarei, charged with recklessly wounding Daniel Hill last January.  The facts: Spence had driven to the coast to go fishing.  Hill, who said he had driven there to go swimming along with his friend Justin and (for reasons not explained) a five-year-old boy, broke into Spence's car and stole his wallet and other items.  (Hill told a reporter he had done this to get money to buy meth, but later denied that.)  Unfortunately for Hill, someone saw the theft and left a note for Spence with the license number and a description of the thief's car.

Even more unfortunately for Hill, Spence had been spear-fishing.

Spence apparently got to his car not long after that, saw the note, and set out to find the thief.  Exactly how they encountered each other is not clear, but they did.  A chase ensued that sounds like something out of "Mad Max" (if "Mad Max" had involved a climactic car chase between a spear-armed fisherman in a Mitsubishi and a meth addict who had gone swimming with a five-year-old boy).  At some point, the cars drew alongside each other, and, according to the prosecutor, "it was during this confrontation that the flounder spear was thrown."

Your basic flounder spear & light kit	With special trident tip

In what frankly seems like a fairly impressive feat, Spence threw the meter-long flounder spear from one moving car through the open window of another moving car and managed to "embed" it in the skull of the man who had robbed him.  ("Man Embedded Flounder Spear in Thief's Skull, Court Told," was the headline.)  In my experience, once one guy has a spear stuck in his head, fight's over.  But amazingly, this did not end the chase.  Hill seems to have kept driving at high speed until the car's engine blew.  He testified on Tuesday, in fact, that at the time he did not know he had a spear embedded in his skull.

"I didn't even really feel it," he told the jury.  "Justin just said, 'You've got an arrow sticking out of your head, bro.'"

When the car broke down, Justin and the mysterious five-year-old fled.  Hill, probably slowed down a bit by the spear, was apprehended and taken to the hospital.  He had surgery to repair a skull fracture and was in rehabilitation for over a month, which is serious but seems much less serious than you would expect.  I am guessing that while the points of the trident went in deep enough to be "embedded," they did not actually penetrate Hill's skull.  The extent of the injury was not very clear, although Hill did take the opportunity to blame it for memory loss when he was on the stand Tuesday.

Crown Prosecutor Anna Patterson said that, while she did not condone Hill's actions, "neither can we condone the actions of the accused, who took the law [and a flounder spear] into his own hands."  She described Hill's decision to steal as "very unfortunate -- not only because it was illegal, but also because of the physical consequences."  Lesson learned: never steal from a guy with a trident.

Not to be outdone in re: stupidity, Spence has already raised a defense that I very much hope to hear more about.  According to the report, "Defence lawyer Arthur Fairley said Mr. Spence admitted throwing the spear at Mr. Hill, but denied doing it with reckless disregard for the safety of others."  Is there another way to throw a spear into the passenger compartment of a moving car?  Unless he is claiming he thought Hill was a flounder, I'm not sure where that argument is going.

Link: New Zealand Herald

Practice Tip: Probably Okay to End Deposition Early if Other Side Brings a Gun

On February 12, an attorney representing a man suing NFL running back Reggie Bush said he and his client chose to end a deposition early after noticing that the other side was armed.

"I knew they weren't going to like what they were going to hear, but I never thought they'd bring a gun," said Brian Watkins, an attorney for sports marketer Lloyd Lake.  Lake is apparently suing to recover $300,000 in payments and gifts that he gave Bush while Bush was at USC.  (The fact that these gifts were illegal may be a bit of an obstacle to recovering them.)

The report did not say who was being deposed, but it wasn't Bush, who is scheduled for February 25.  But it wasn't the deponent who had the gun anyway -- it was the bodyguard for Bush's attorney.  The attorney, David Cornwell, claimed later that he felt he needed a guard because Lake, who has a criminal background, has allegedly threatened him and Bush before.  Cornwell said the bodyguard had a permit to carry a concealed weapon, but Watkins said he didn't keep it concealed.

"He made sure we saw it," Watkins said.  Watkins' client said the bodyguard flashed the gun at him in the lobby, and that he opened his jacket later during the deposition.  When Watkins objected, Cornwell agreed to have the bodyguard sit outside the deposition room.  "So then," Watkins said, "he was sitting eight to 10 feet away from Lloyd, outside a glass door with his arms folded, staring in at my client."

Outrageous, Watkins called it twice.  "It's outrageous that he shows up strapped for a deposition," he said.  "That's outrageous conduct in the lawyer world.  Come on, we're lawyers.  I don't threaten people [with guns], I sue them."  Watkins suggested that the handgun was evidence that Bush has a weak case.  "They know the day of reckoning is coming," he said.  "They are panicking."

Cornwell, who has represented many other sports figures including dog lover Michael Vick, did not sound panicky.  Given Lake's background and the alleged threats, he said, "we were advised to take appropriate security precautions when in Lake's presence."  He dismissed the intimidation claims as unprofessional.  "This lawsuit stuff is for grown folks.  Obviously, this crew ain't ready."

The deposition was held at the San Diego office of grown folks Pillsbury Winthrop Shaw Pittman, though Pillsbury said none of its crew was present (it was just hosting).  In a statement, the firm also emphasized that it has a "zero-tolerance" policy for firearms at a deposition.

Link:  AP via NBC Sports
Link:  USA Today

UPDATE: Custody Battle Ends; Judge Orders Leg Returned to Owner

Last month I reported on a custody battle over a severed leg that Shannon Whisnant found inside a barbecue smoker he bought at an auction.  The leg had belonged to John Wood, who lost it in a plane crash.

Well, he didn't exactly lose it -- it just wasn't attached anymore.  Wood still had it, though, and was apparently keeping it around because of a belief that you need to have all your parts with you when you die.  (I would not have expected that to be a problem in the afterlife but I guess it could conceivably save somebody a lot of work tracking parts down if that turns out to be necessary.)  The smoker and various other items went on the auction block after Wood was no longer able to pay the bill on the storage unit.

Wood apparently realized where the leg had got to when Whisnant started to get publicity (he was charging people to look at the smoker), and demanded the leg back.  Whisnant turned it over to police and a custody battle ensued.

Appropriately enough, the matter was decided by a TV judge, Judge Greg Mathis, in an episode that aired on November 1.  Whisnant argued he was entitled to the leg because "the auction man said all sales were final," and that he wanted to continue to charge $10 a look (no charge for amputees).  "It's mine," he said.  "It's a hell of a conversation piece."  Wood said he did not want Whisnant to be able to profit from his leg, and also made a claim for emotional distress because of media coverage of the case.

In a Solomonic decision, Judge Mathis reunited the leg with the man who had grown it, but denied his claim for damages.  "You're not getting that leg," he told Whisnant.  "I'm not giving you the man's leg."  He did not appear to believe that Wood had actually suffered great emotional distress, however, telling him and Whisnant: "I think that you all, quite frankly, are enjoying this. . . . Something's wrong with both of y'all."

Whisnant told the Charlotte Observer that whatever Mathis decided, he still had plans to profit from his discovery.  He said he was preparing a website on which he would sell commemorative T-shirts bearing a picture of his face flanked by a leg on either side and the words "I am friends with the foot man."  (I would buy that, largely because the caption really makes no sense at all.)  "They'll be $15.95 plus shipping," he said.  "[But] they're beautiful shirts," he insisted.  "They really are."  They certainly sound beautiful, but to date Whisnant's website doesn't appear to be operational.

Link: International Herald Tribune
Link: Get Your Case Resolved by Judge Mathis

Activist Convicted of Pelting School Board Members With Grapes

Agnes Hitchcock says she has made her point and will no longer disrupt school-board meetings, now that her act of civil disobedience on April 4 has served its purpose of allowing her to talk about mismanagement of the Detroit-area school district.  Hitchcock was prosecuted, convicted, and fined for pelting school board members with grapes during a meeting at which the board voted (6-5) to close 34 city schools.

Hitchcock was lucky not to have been charged with assault and battery, given that she successfully beaned at least one board member with one of the fruity missiles.  She was also lucky not to have been charged under the PATRIOT Act, given that there is not very much you can't be charged with under the PATRIOT Act.

The report did not say whether Hitchcock had assaulted the board with relatively benign green table grapes (probably Thompson Seedless) or a more threatening variety such as Bastardo or Canadian Moonseed.  Much more serious penalties would probably have been imposed had she used one of the harsh German varietals such as Blaufrankisch or even Gewurztraminer, let alone something like Black Monukka or the notorious Preto de Mortagua, normally spoken of only in hushed voices.  Few know that the Croatian autochthonous varietal Crljenak Kastelanski was involved in the assassination of Archduke Ferdinand, sparking World War I.  Speaking of sparking, some research suggests that even common seedless grapes can be made to "combust spectacularly" if properly prepared, something that likely brings the PATRIOT Act back into the picture.

Whatever Hitchcock used, board president Jimmy Womack took the traumatic assault quite seriously.  He told reporters that he was glad Hitchcock had been punished.  "This shows there are consequences to the actions we take," he said. "It's just regrettable [Hitchcock] has no remorse for attacking school board members [with grapes]."

Hitchcock remained defiant.  "It was worth the risk in order to be able to talk about these things in court," she told the Detroit Free Press, although it was unclear how many people were there to listen.  The judge imposed a $250 fine and Hitchcock must serve six months unsupervised probation.

Link: CBS News
Link: Learn about grapes at Wikipedia and
        The Super Gigantic Winegrape Glossary

Mysterious Cat-Napping Terrorizes New Zealand Community

A desperate search continues in New Zealand for Max the Cat, who was abducted recently by a person or persons unknown.  Lisa Morice, Max's companion, posted flyers after Max failed to turn up last week at his home on William Denny Avenue in Westmere, New Zealand.  She got immediate results, but not the kind she expected.

"Almost immediately I received an anonymous call from a man telling me there was a letter about Max in our box," she said.  The writer said Max had been taken 'overseas' and left by some houses on the Northcote Pt side of Onewa Rd."  The letter contained a map showing where the cat had been left, and explained why the abduction had taken place.

"I and others who have lived in our home," the cat-napper wrote, "have had a long and very unsatisfactory relationship with Max, especially our cat who has sustained various injuries, one permanent, in attempting to defend her territory.  Max has been a regular nocturnal invader, eating our cat's food and occasionally defecating in the corner."

"It was high time this came to an end, and our home became our home again," the writer continued.  The incident was triggered by another nocturnal invasion: "Two nights ago, Max crept in at 4am and I played cat and mouse where I was the cat and Max [normally the cat] was the mouse. . . . "After a two-hour chase, where Max demonstrated an intimate knowledge of every hideaway corner of our house, I managed to capture him."  The abductor claimed that because Max had no collar, there was no way to determine who he belonged to.  So, he wrote, "I took him 'overseas' to Onewa Rd and released him there.  I am remaining anonymous for obvious reasons and when you get him back, as I am sure you will, can I suggest that you provide him with a collar and a tag that identifies him as your cat."

The term "overseas" referred to the fact that the location where the victim was dumped is on the other side of a bay that splits the Auckland metro area, as shown by the map below.

Ms. Morice said she understood the writer's frustration but was "horrified at the drastic action he took. . . . It is very weird behavi[or]."  (The brackets there only "correct" the spelling of that last word.  Originally, I quoted it exactly, but eventually I decided that even if they insist on saying "behaviour" down there I don't have to write it that way up here.  Even if I am quoting.  This took about five minutes of my life to consider.)  "We know the person lives very close to us," she said, "but is outside our immediate group of houses. All we want is Max back and we have had a wonderful response from Northcote residents, but as yet without success."

New Zealanders who wrote the Auckland paper to comment on the story were split 3-2 in support of the cat abduction.  "Stephen C." wrote that he fully supported the neighbor's action because he was "sick of people not de-sexing their tomcats" with the result that they get into neighbors' homes, "steal food, and rape other cats."  "Carissa," meanwhile, agreed with Stephen but was less concerned about cat rape than cat food: "I have them coming in at night eating my cat's food regularly," she wrote, "and have thought about doing the same thing."  (You have?  Could someone please make Carissa a sandwich or something?)  But "Wiki" was more supportive, writing that she had faced a similar situation (lost cat, not abducted cat).  "[Dear] distraught cat owner," she wrote, although Morice's actual name was used in the story, "please do not give up hope.  Just 20 minutes ago a neighbour responded to our flyers, now our Baba Boo has been returned, after spending two cold wet nights locked away in an unused old caravan."

But the safe recovery of Baba Boo is likely cold comfort to the Morice family.  As of Sunday the 12th, there was no report that either Max or the cat relocator had been located.

Link: Auckland City Harbour News via Stuff.co.nz

A Wine So Good It May Turn Your Robbery Into a Group Hug

That might be a good new slogan for Chateau Malescot St. Exupery, a wine so good it helped turn a robbery last week into a group hug.

A group of friends in Washington, D.C., were enjoying steaks, jumbo shrimp, fine cheeses, and a bottle of the Chateau Malescot, when a man wearing a hood burst in. Pointing a gun at the head of a guest, he said “Give me your money, or I’ll start shooting.”  Up to this point, the robbery was proceeding in the traditional manner, but then guest Christina Rowan said, “We were just finishing dinner. Why don’t you have a glass of wine with us?”

Amazingly, he agreed, and sampled the Chateau Malescot St-Exupery.  “Damn, that’s good wine,” he said. After a little more wine, and some Camembert, he had changed his mind.  “I think I may have come to the wrong house,” he said, putting his gun away.  “I’m sorry. Can I get a hug?”

Each guest gave the robber a hug. He had another sip of wine. He evidently felt it had proven to be a wonderful evening of camaraderie, apart from the whole gun-to-the-head thing, generally considered a faux pas.  Before he left his new friends, he asked to bond with them once again: “Can we have a group hug?” he asked.  Hugs obtained, he fled.  The police later found the wine glass, unbroken, in an alley near the home.

Perhaps this outcome is explained by the power of the carefully chosen wine-cheese pairing, something  that should not be underestimated, but I think the Chateau Malescot alone was responsible.  The Malescot (full name: Chateau Malescot St. Exupery Grand Cru Classe en 1855, Margaux), is made from grapes grown near Margaux village in France, in vineyards surrounding a chateau sold in 1697 to Simon Malescot, Esquire, Counsel to Louis XIV.  The chateau was purchased in the 19th century by Count Jean-Baptiste Saint-Exupery, great-grandfather of the writer Antoine de Saint-Exupery, at which time the famous name was added.  The Malescot (assuming it was the 2000) is a powerful and harmonious blended cabernet with fine crimson tints and the flavors of ripe fruit, mocha, and vanilla; its grapes harvested during rainy fall weather and carefully chosen for their calming effect on the American felon.  Wait, I've thought of a better slogan:

Chateau Malescot St. Exupery: Damn, That's Good Wine.

I've contacted the fine people at the Chateau Malescot to suggest that they adopt this slogan in recognition of this incident and in honor of the life-saving abilities of their heroic wine.  I expect to hear back from them shortly.

Link: Washington Post
Link: Chateau Malescot Saint-Exupery

Bar Association: Lawyer-Administered Beatings May Be Unethical

In India on Wednesday, the Agra Bar Association said it would be looking into the details of an attack by several lawyers on a litigant there.  According to reports, the lawyers claim that the man refused to marry the niece of one of the lawyers, a dispute that (for reasons that were not clear to me) ended up in court.  Actually, I guess it ended up out of court, because when the man arrived to discuss settlement, the lawyers instead grabbed him, tied him to a tree, tore off his shirt and cut various bald patches into his hair.

For a closing argument, they also beat him up.

Indian TV channels have been running video of the lawyer gang's assault on the stubborn bachelor, and a local official says he has ordered police to file a case.  According to the report, the local bar association has said it is also "investigating the attack."  This tells me that a spokesperson for a bar association, presented with video of lawyers actually abducting a litigant, tying him to a tree, embaldening him and beating him up, refused to make a call as to whether this was unprofessional conduct or not.  But he did promise they will "look into it."

I look forward to the report of the committee of experts they convene for that investigation.

Link: Reuters

Australian Court Frowns On Settling Law-Firm Dispute With Baseball Bat

Jim Byrnes, who was described as a "controversial Sydney businessman," was sentenced to four months in jail this week for using a baseball bat in an attempt to settle a dispute with a law firm.

Byrnes, 47, is apparently owed a lot of money by a client of the Edwin Davey firm, and needs the money sooner rather than later because he is facing bankruptcy proceedings himself.  Evidently feeling that the debt collection matter was not moving along quickly enough, Byrnes dropped by the firm to discuss it, bringing along a baseball bat.  Rather than swiftly disarming him with a single blow, as any American litigator would have done, solicitor Hector Ekes locked himself in his office.  Byrnes smashed a window next to the door with his bat, but that's as far as things went.

Byrnes was charged with malicious destruction of property, something called "affray," and "having custody of an offensive implement in a public place," which I'm glad isn't a crime over here.  He pleaded guilty to all of the charges.  Byrnes' lawyer said his client had suffered "a brain snap," but had never intended to harm Mr. Ekes personally.  He also noted that his client had no history of violence, though he had been convicted of "assaulting a bikie over a traffic incident" in 2001.  Which sort of sounds like a history of violence to me, but maybe it's okay to assault bikies, whatever the hell they are.

Magistrate Paul Lyon sentenced Byrnes to four months in jail on the "affray" count.  He said he understood that Byrnes was frustrated about the debt but that if "every debt collector behaved in the way you do there would be mayhem," which I guess is the legal term for multiple counts of affray.  "What can't happen," he continued, "is the old days of debt collectors picking up a baseball bat and, with violence, being a standover thug to collect money."

The magistrate said the sentence would serve as a message "that it is not acceptable to settle business disputes with baseball bats."

According to the Brisbane Times, Byrnes immediately appealed the sentence but was told that because of his "affluent lifestyle" he would need to post $10,000 bail.  Where does a man facing bankruptcy get $10,000?  He calls his wife.  Or, he tells his lawyer to do it: "Leaning over to his solicitor, Stephen Tully, Byrnes instructed him to call his wife and 'tell her to get $10,000 cash out of the bank and get her arse over here.'"  (Nice.  He does sound like a standover thug.)  Gina Byrnes did show up with the money, and so Byrnes is free on bail until his next hearing on June 13.

Link: ABC News (Australia) Online
Link: Brisbane Times

High School Dispute-Resolution Exercise Solves Major World Problems

The Daily Journal legal newspaper reported last week on a 10th-grade history class exercise that put students in the roles of Benjamin Franklin and Britain's Frederick North at the time of the American Revolution.  Amazingly, it appears that by applying simple alternative-dispute-resolution techniques, the students were able to easily avert one of the major conflicts of world history.  The setting was a hypothetical trip by Franklin to Britain for negotiations.  Here's how simple it apparently was:

North:  Welcome to Britain.  I hope we can work together to try to meet the interests of both sides.

Franklin:  Thank you.  As a British-American colony, we have a problem with the heavy taxing the British government has been placing on us as of late.

North:  You need to understand, we must pay off our war debts.

Franklin: I understand that war is very costly, but the concern we have is, if you are going to tax us, at least we should get some representation in the British government.  Also, having your troops here is an invasion of our privacy.  We have to feed and clothe them, and our economy is suffering.

Of course, here's how that meeting really would have gone:

North:  Welcome to Britain.  You are under arrest.

But maybe that's just my cynicism talking.  The teenagers were able to resolve all of the parties' disputes and to do it before class let out for the day, and they were shaking hands by the end of the day instead of shooting up the lunchroom, so maybe there is something to this alternative-dispute-resolution business.  Maybe we should send these 10th-graders over to work things out between the Sunnis and Shiites.  Can't do any harm at this point.

(Daily Journal, Friday, Mar. 9, 2007.)

Rabbit Town Versus El Baldo

Reports from a village near Madrid state that The Bald One has finally received justice through the heroic efforts of the Spanish people.

Javier Vernui, known as "The Bald One" (or "El Baldo" in Spanish), has terrorized the village of Villaconejos for years, according to the mayor and other residents.  They said that Vernui would go into bars and supermarkets in town carrying a pistol or knife, and would simply take what he wanted without paying.  Mayor Benavente de Blas said "Bernui didn't hesitate to use violence against the residents in bars, drove his car wherever he liked and did whatever he felt like."

The next-to-last straw came on December 23, when El Baldo entered a Villaconejos bar and pushed other customers out of the way.  A man reportedly told him "enough is enough" and gave him a beating.  Unchastened, El Baldo y sus amigos returned a week later and trashed the place.

That was the last straw, and it prompted 200 residents of Villaconejos ("Rabbit Town") to show up at Bernui's house the next day in protest.  Police showed up (from wherever they've been for the past seven years) to control the crowd, and they arrested El Baldo when he fired shots into the air.  But the next day, a crowd twice that size (over ten percent of the town's residents) showed up and set fire to Bernui's house, garage, two cars, a van, and three motorcycles, and then blocked the road so firefighters could not get through.  No one was hurt -- Bernui was in jail and police evacuated the other residents.  "It was all of us," said mayor de Blas when asked who did the burning.  "It was the people [of Rabbit Town]."

Link: Reuters via Yahoo! News

Letter Encouraging Mediation

Tired of lengthy letters from opposing counsel full of BS?  This one's refreshingly short:

Dear Counsel:

       What do I have to do to get you off your dead ass and schedule a mediation.  Let me know.

       We have been trying for months to get a date.

       Wars have lasted shorter than getting a commitment out of you.

               With kindest regards,

               E. Todd Tracy

Link:  Letter Encouraging Mediation

There Can Be Only Twelve

In support of new restrictions on the sale of blades in that country, police in Scotland showed footage last week of a pitched battle among a dozen men in a parking lot in Glasgow.  Captured on security cameras, the footage reportedly shows two gangs of hooded men brandishing bladed weapons including swords and "giant machetes."  The men battle and exchange blows but then flee when police arrive, one group escaping in a Ford Focus.  Police said there were no signs that anyone had been injured in the fight.

The report describes this footage as "terrifying," but I'm not sure that word really fits a fight where two groups of unarmored morons whack away at each other for a while, not even managing to injure anybody, and then flee in a Ford Focus.  Frankly it sounds a little more like a Benny Hill episode to me.

Still, the video was released in support of new laws that will impose severe restrictions on the sale and possession of blades in Scotland.  The rules would reportedly impose a "near total ban on the sale of swords" -- which I guess means you could still get one if you could show you really, really needed a sword -- and would require shops selling blades to be licensed and to record the names and addresses of blade buyers.  The rules appear to cover not only swords and machetes (giant, regular, or tiny) but also meat cleavers, hunting knives, and any "non-domestic blades," which appears to mean knives not intended for kitchen use.

As I've always said, when blades are outlawed, only outlaws, people who swordfight in parking lots and anyone with a set of steak knives will have blades.

Other anti-blade measures include tougher sentences for possession of non-domestic blades and a raise in the minimum age for knife purchasing from 16 to 18.  Police insisted that the new laws were necessary to crack down on Scotland's "deadly blade culture."  Government figures showed that 72 people died from stab wounds last year in Scotland, and I have no idea whether that's a lot, proportionately, and police also said there were another 1300 blade attacks in just one county last year, which does seem like a lot but again I have no idea whether it really is.  "Far too many people," said Detective Chief Inspector John Carnochan, "particularly young men, view the carrying of knives as acceptable.  We need to get the message [across that] this is absolutely unacceptable in 21st-century Scotland."  Actually, I would think the problem is not so much the carrying of the knives as the poking of others with them, but I'm no Detective Chief Inspector.

I would also like to know how much of the deadly blade culture is due to the movie "Highlander," which as you may know involved a bunch of otherwise immortal guys who suddenly and for no clearly explained reason suddenly decided that the last one with a head attached would get to rule the world.  I guess they will have to move that competition somewhere other than Scotland, though, now that they will all have to check their blades at the door.

Link: The Daily Record (UK) (Aug. 15, 2006)
Link: Way More Than You Want to Know About Highlander
Link: Where to Get The Highlander Collectible Plate You've Always Wanted

Rock, Paper, Scissors Match to Resolve Discovery Dispute

While trial by combat is unfortunately no longer a part (officially) of our legal system, a form of it was revived on June 6 by the Honorable Greg Presnell of the Middle District of Florida.  The parties in Avista Management v. Wausau Underwriters apparently could not agree on where to hold a 30(b)(6) deposition, which the court in frustration described as "the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts."  The lawyers involved have offices four floors apart in the same building, but still could not agree.  Plaintiff's counsel filed a motion asking the court to make the decision.  It was denied.

Instead, counsel for the parties will be meeting at 4 PM on Friday, June 30, at a neutral site, each being permitted one attendant, to engage in one (1) game of "rock, paper, scissors."  The winner of the match is entitled to select the location at which the deposition will be held.

I for one would vote that this option be codified in the Federal Rules of Civil Procedure, although I think that ordering it falls well within the inherent power of any court to control its docket and so forth.

The most interesting part of this to me is that the court provides that "[i]f either party disputes the outcome of this engagement, an appeal may be filed" that will be heard by Judge Presnell on July 7.  I think we are in uncharted territory here as to the rules and/or standard of review that would apply to the appeal of a rock-paper-scissors match.  (Maybe you would just do best two out of three?)  In an effort to help resolve this, I would refer the parties and the court to the World Rock Paper Scissors Society, the organization charged with setting standards for international match play.

I would also be available to help handle the appeal (if any).

CNN.com
Order Denying Discovery Motion (PDF)