Case: 22-40306 Document: 00516333320 Page: 1 Date Filed: 05/25/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 25, 2022 No. 22-40306 Lyle W. Cayce Clerk In re: Lucas Babin, Petitioner. Petition for Writ of Mandamus to the United States District Court for the Eastern District of Texas USDC No. 9:22-CV-31 Before Southwick, Graves, and Costa, Circuit Judges. Per Curiam:* Netflix Inc. sued a state district attorney in federal court. It sought to enjoin his prosecution of the company for promoting a film on its platform that allegedly contains child pornography. The district attorney moved for summary judgment. In an attempt to respond to the motion’s arguments, Netflix sought emergency discovery into state court grand jury proceedings. The federal district court compelled in camera production of the grand jury materials, to be followed by other rulings after the inspection of the materials. The district attorney has now petitioned this court for a writ of mandamus ordering the district court to withdraw its discovery order. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-40306 Document: 00516333320 Page: 2 Date Filed: 05/25/2022 No. 22-40306 The district attorney has not identified any precedent in which this court has issued a writ of mandamus to prevent the production of grand jury materials for in camera inspection. That alone suggests that the petition is not well-founded. A writ of mandamus is an “extraordinary remedy” reserved for “extraordinary cases” in which certain predicate conditions must be established. In re JPMorgan Chase & Co., 916 F.3d 494, 499 (5th Cir. 2019). The district attorney has not met these preconditions. We DENY the petition for a writ of mandamus. FACTUAL AND PROCEDURAL BACKGROUND Netflix, Inc. began streaming the film Cuties on September 9, 2020. According to Netflix’s complaint in this case, “Cuties (‘Mignonnes’ in its native French) is the story of Amy, an eleven-year old Senegalese immigrant caught between cultures: her devoutly Muslim family and the ‘Cuties’ — a self-named dance group of Amy’s peers who have their hearts set on trying out for and performing at a big dance competition in town.” Certainly, Netflix’s rather benign description does not capture the reasons for the controversies that have arisen about the film, but the eventual issue in this case is whether Netflix has broken any law that constitutionally can be applied to promoting the film. That ultimate issue is not before us now. Lucas Babin, the district attorney in Tyler, Texas, obtained an indictment of Netflix under a Texas statute criminalizing the possession, access, or promotion of lewd visual material depicting a child. Tex. Pen. Code § 43.262. A grand jury returned that indictment, which Babin served on Netflix roughly three weeks after Netflix began streaming the film. On October 23, 2020, Netflix entered a plea of not guilty. The case largely …
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