ILC and Business Litigation Committee Judicial Profile Series: United States Magistrate Judge Mitchell D. Dembin (Southern District of California)

The following is a profile of the Honorable Mitchell D. Dembin, United States Magistrate Judge for the Southern District of California. Judge Dembin met with members of the Business Litigation Committee and the Insolvency Law Committee in his chambers at the James M. Carter & Judith N. Keep Courthouse in San Diego and discussed his personal and professional background, his appointment as a Magistrate Judge and his experience on the bench.

Family Background

Judge Dembin’s father was a New York City Police Officer and his mother worked at a band instrument company in Manhattan. When his parents insisted that he learn how to play a reasonably sized musical instrument for a small apartment, he picked up the guitar at age 12 and has been playing the guitar ever since. As a child, Judge Dembin grew up in the same Brooklyn public housing project as billionaire, Howard Schultz. Living in the housing project, Judge Dembin learned to be “situationally aware” and had to “appear to be tough.” Judge Dembin received his undergraduate degree from Brooklyn College of the City University of New York. But, it was only after he began his law school career at Western New England Law School in Springfield, Massachusetts that he was able “to breathe better” because he was “no longer in a prey or predator environment.”

Judge Dembin’s legal career has been as extraordinary as he is. Prior to his appointment, Judge Dembin was an Assistant U.S. Attorney in San Diego and served as the Cybercrime Coordinator for that office. Judge Dembin was also the Chief Security Advisor for Microsoft Corporation and, prior to joining Microsoft, he was the president of EvidentData, Inc., a computer forensics and security firm. Judge Dembin served four different terms as an Assistant U.S. Attorney over 20 years in San Diego and in Boston. He started his career at the Securities and Exchange Commission in Washington D.C. Judge Dembin was sworn in as Magistrate Judge on March 18, 2011.

Mitch Steadman, Computer Genius

After a four-year stint with the U.S. Attorney’s Office in Boston, Judge Dembin went into private practice from 1989 to 1991. While in private practice, he became acquainted with the Intel 80286 and Intel 80386 microprocessors and began cultivating his computer savviness. He participated in the design and installation of the computer system for the three-person law firm including a database to track billable time and clients. When he returned to the U.S. Attorney’s Office in San Diego in 1991, he was considered a “computer God” because he was one of only a few attorneys with rudimentary computer skills. Because he knew how to save a document, how to set up and turn a computer on and off, how to send and receive emails and was able to change screen colors, he was dubbed the computer wizard for the office. Consequently, when the first computer crime was reported to the U.S. Attorney’s Office, it was assigned to him. It was the third such case in the country. That case aroused the interest of Good Morning America. Judge Dembin participated in the press conference about the case and was identified on air as “Mitch Steadman.” So much for fame.

He was the office’s first Computer and Telecommunications Crime Coordinator (CTC), later renamed Computer Hacking and Intellectual Property Crime Coordinator (CHIP) and began instructing prosecutors and agents locally and nationally about hackers and computer forensics. As an Assistant U.S. Attorney, Judge Dembin primarily prosecuted cyber and white-collar crimes. He admitted that he was drawn to prosecuting defendants who believed themselves to be smart. He found that the defendants’ “arrogance blinded them” and he loved “getting the goods on these “smart” criminals.” He respected the role of a U.S. Attorney and took the power intrinsic in the job very seriously. The “power to decide whether or not to investigate someone is very important,” Judge Dembin remarked. “The decision to investigate can ruin someone’s life if it goes public, which it often does.”

Experience as a Magistrate Judge

Judge Dembin decided to apply to become a Magistrate Judge because he realized that he could make a difference in the community he served. He also believes there is less stress as a Magistrate Judge, than as a U.S. Attorney, because he is not involved in making the determination to investigate someone accused of a crime. Judge Dembin and other Magistrate Judges in the Southern District are assigned to civil cases for pretrial purposes. Each of the Magistrate Judges work on cases with the District Judges in the Southern District and are assigned to a case at the same time the District Judge is assigned to a case. Magistrate Judges do not discuss the substance of a case with the assigned District Judge. The only coordination between the chambers involves scheduling.

As a Magistrate Judge, Judge Dembin manages his case load, which includes presiding over Early Neutral Evaluations and case management conferences. He devotes a significant amount of time as a settlement judge. He also spends a considerable amount of time on civil discovery disputes. He only allows informal discovery conferences during depositions. Otherwise, he requires parties involved in discovery disputes to engage in the meet and confer process before filing a joint motion. Although he believes that “it is very important to be in court and in the robe” to resolve discovery issues, he rarely holds oral argument because of the shortage of courtrooms available in the Southern District. Judge Dembin said that motion hearings happen “not even once a month.” About 70% of his case load is civil cases, including habeas corpus writs derived from state criminal cases, social security appeals, and prisoner civil rights cases. In these cases, he prepares reports and recommendations for the assigned District Judge on substantive motions. He presides over a criminal calendar twice a week in a courtroom shared with another Magistrate Judge.

As a Magistrate Judge in the Southern District, he is “not a trial judge” because there is not a culture of consent to a Magistrate Judge for all purposes. Instead, the District chooses to utilize its Magistrate Judges primarily as settlement judges. On the criminal side, one of the most significant duties as a Magistrate Judge is the ability to issue search warrants, a process that he takes very seriously. The decision to issue a search warrant is non-reviewable, but it is very important to “get it right because neighbors and children see when a search warrant is being executed by law enforcement” and could be extremely detrimental to a person’s life and reputation in the community. Additionally, he understands that if the search warrant is determined to be invalid, the evidence obtained during the search may be suppressed.

He has a career clerk and a “term clerk” who serves a single term that averages about two years. His ideal law clerk is smart, willing to work, has a good sense of humor and is adaptable. Due to his desire to keep his opinions and memorandum simply stated, he acknowledges that the writing style of all of his law clerks “coming in is often completely different than when they go out.”

Observations from the Bench

Judge Dembin believes that “good attorneys know how to litigate” but that it is counterproductive and unnecessary if the attorneys “fight about everything.” He expects attorneys to fully cooperate with each other.

Providing courtesy copies for chambers is very important because Judge Dembin prefers to review hardcopies of pleadings and does not encourage the use of hyperlinks for cases or other legal authorities. If he presides over a motion hearing, he will have hardcopies of the moving and opposing papers on the bench in front of him. He appreciates the “KISS” theory of writing – keep it short and simple. Short declarative sentences without adverbs or modifiers “are great.” He does not believe terms such as “appears,” “seems,” “clearly,” and “obviously” add anything to a pleading. He does not issue written tentative rulings, but he will provide a verbal tentative at the time of the hearing to “sharpen the argument.” A tentative ruling “eliminates unnecessary arguments, which is very important.”

Continued Involvement in the Community

Along with his duties as Magistrate Judge, Judge Dembin helped to organize the San Diego ESI Forum (www.sandiegoesiforum.com) which was formed to educate attorneys about electronic discovery. As a member of the San Diego ESI Forum Steering Committee, he organizes 9 to 10 CLE approved sessions discussing a variety of eDiscovery topics such as eDiscovery 101, fundamentals of litigation holds and document presentation, mobile device preservation and discovery, email forensics, cybersecurity for lawyers, Hacking 101, using social media evidence and authenticating electronic evidence.

Judge Dembin is also involved in Comic-Con, San Diego Comic Fest and WonderCon where he presides over mock trials involving pop culture icons. One mock trial involved the court martial of Poe Dameron who was charged with disobeying orders, mutiny and conduct unbecoming of an officer. Poe was found not guilty of conduct unbecoming of an officer, but was convicted of mutiny and for disobeying orders. Judge Dembin sentenced Poe to a term of ten years at Rura Penthe causing quite a stir as Dameron is in the Star Wars universe and Rura Penthe is a Klingon prison colony in Star Trek. The court martial proceeding went viral and was published on YouTube by The Legal Geeks in July 2018.

In his spare time, Judge Dembin writes songs and plays guitar in a band. In 2012, his album “Fat Man On Thin Ice” was released containing eleven original songs that he wrote. One song, “Nobody Knows Me Without You,” relates to the unexpected death of his dog. His mother’s battle with dementia was the inspiration for the final song on the album, “I’m Doing Fine.”

Judge Dembin lives with his wife, who is a board member for the Rancho Coastal Humane Society, and four rescue dogs.

This article was written by Philip Bonoli, a partner at Brutzkus Gubner Rozansky Seror Weber LLP and Co-Chair of the Business Litigation Committee of the California Lawyers Association (CLA) Business Law Section (pbonoli@bg.law), and Misty Perry Isaacson, of Pagter and Perry Isaacson, APLC and a member of the Insolvency Law Committee of the CLA Business Law Section (misty@ppilawyers.com).