DL et al v. DISTRICT OF COLUMBIA et al

Filing 404

MEMORANDUM AND OPINION regarding the Court's Order 400 denying the District's Motion to Stay Discovery. Signed by Judge Royce C. Lamberth on January 3, 2014. (lcrcl4).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DL, et al., on behalf of themselves and )
others similarly situated,
)
Plaintiffs,
)
)
v.
)
)
THE DISTRICT OF COLUMBIA, et al.,
)
)
Defendants.
)
)

Civil No. 05-1437 (RCL)

MEMORANDUM OPINION
During a status conference on December 18, 2013, and after consideration of the
District’s Motion to Stay Discovery [394], the plaintiffs’ Opposition [396] thereto, and the
District’s Reply [397], the Court denied the District’s motion and ordered that discovery proceed
according the schedule outlined in the parties’ Joint Status Report [395]. This opinion will set
forth the Court’s rationale for its Order [400] denying the District’s motion.
I.

BACKGROUND
Prior opinions of this Court have detailed the complex factual and procedural background

of this litigation at length. See, e.g., DL v. District of Columbia, 845 F.Supp.2d 1 (D.D.C 2011);
DL v. District of Columbia, 237 F.R.D. 319, 324 (D.D.C. 2006). For present purposes, the Court
will recount only those facts relevant to this opinion.
Plaintiffs—residents of the District of Columbia and former preschool-age children with
various disabilities—filed suit in 2005, alleging that the District failed to provide them a free
appropriate public education (“FAPE”) in violation of the Individuals with Disabilities Education
Act (“IDEA”). In August 2006, this Court certified a broad plaintiff class pursuant to Federal

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Rule of Civil Procedure 23(b)(2), consisting of children harmed by the District’s failure to
comply with various provisions of the IDEA. DL v. District of Columbia, 237 F.R.D. 319, 324
(D.D.C. 2006).
In 2011, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541
(2011), which clarified the proper interpretation of the commonality requirement for class
certification under Rule 23(a)(2). Shortly thereafter, the U.S. Court of Appeals for the District of
Columbia Circuit applied Wal-Mart to reverse this Court’s certification of the plaintiff class,
holding that the class lacked commonality because the “harms alleged to have been suffered by
the plaintiffs here involve different policies and practices at different states of the District’s Child
Find and FAPE process” and were linked together only by violation of the same provision of
law, the IDEA. DL v. District of Columbia, 713 F.3d 120, 127 (D.C. Cir. 2013).
On remand, this Court certified four subclasses, each consisting of children harmed by
the failure of the District to comply with a specific provision of the IDEA. Memorandum
Opinion, November 8, 2013, ECF No. 394. The District, pursuant to Rule 23(f), immediately
appealed the subclass certification, and moved this Court to stay discovery pending the
resolution of that appeal. For the reasons detailed below, this Court denied the District’s motion.
II.

ANALYSIS
Federal Rule of Civil Procedure 23(f), which permits interlocutory appeals of class

certification orders, provides that “[a]n appeal does not stay proceedings in the district court
unless the district judge or the court of appeals so orders.” Because the Rule was “drafted to
avoid delay,” Blair v. Equifax Check Services, Inc., 181 F.3d 832, 835 (7th Cir. 1999), a stay of
proceedings following a Rule 23(f) petition is not automatic and requires a “demonstration that
the probability of error in the class certification decision is high enough that the costs of pressing

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ahead in the district court exceed the costs of waiting,” id. See also, e.g., Prado-Steiman v. Bush,
221 F.3d 1266, 1273, n. 8 (11th Cir. 2000) (“Rule 23(f) contemplates that in most cases
discovery (at the very least, merits discovery) will continue notwithstanding the pendency of an
appeal of the class certification order”).
Aside from noting that in many cases discovery will continue while a Rule 23(f) petition
is pending, In re Lorazepam & Clorazepate Antitrust Litigation, 289 F.3d 98, 105 (D.C. Cir.
2002), the D.C. Circuit has not yet articulated the standard for determining whether a stay of
discovery is warranted. However, the district courts of this jurisdiction have applied the standard
set forth by then-Chief Judge Hogan in In re Lorazepam & Clorazepate Antitrust Litigation, 208
F.R.D. 1, 3 (D.D.C. 2002). Under the Lorazepam standard, courts should consider whether:
(1) there is a substantial likelihood that the movant will succeed on the merits of
the claims/appeal;
(2) the movant will suffer irreparable injury if an injunction/stay does not issue;
(3) others will suffer harm if an injunction/stay is granted; and
(4) the public interest will be furthered by an injunction/stay.
Id. at 3. Applying these factors to the present case, this Court finds that a stay of discovery is not
warranted.
As to whether there is a substantial likelihood of success on the merits of the District’s
23(f) petition, the Court, having authored the subclass certification opinion after several weeks of
consideration and review of Wal-Mart and the Circuit’s opinion, obviously believes both in the
soundness of its decision and that it will be affirmed by the Circuit. But experience counsels that
divining how the Circuit will rule in any particular case can be injudicious—and even the
District admits that the outcome is “difficult to predict.” Def.’s Mot. for Stay of Disc., ECF No.
394, at 2 [hereinafter Def.’s Mot.]. As such, the Court finds that the District’s chance of success

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on the merits is not so certain as to outweigh the other factors relevant under the Lorazepam
standard.
With regard to the second prong, the District argues that the effort required to proceed
with discovery constitutes irreparable injury. Importantly, however, “litigation expenses alone
do not necessarily qualify as irreparable harm,” In re Lorazepam, 208 F.R.D. at 6. And while the
District argues that discovery at this stage of the litigation will mirror the 2,500 hours of time and
considerable effort previously expended on discovery in this case, Def.’s Mot. at 4, that
argument appears exaggerated for at least two reasons. First, prior discovery focused on decades
of the District’s IDEA compliance—or the lack thereof—while the current discovery will only
cover the District’s performance since April 2011. Second, because of the reforms instituted as a
result of this litigation, the District maintains an extensive database of statistics regarding its
IDEA compliance, known as the Special Education Data System (“SEDS”). The District has
averred to this Court that SEDS is “the single system of record for tracking each child’s referral
and progress through the special education process. This includes all information about
assessment, eligibility determination, required supports and services and site of services.” Def.’s
June 1, 2012 Report on Programmatic Requirements, ECF No. 333-1, at 7-8.

Given the

District’s statements regarding the comprehensive and successful nature of this system, id. at 8,
producing information regarding its IDEA compliance from this database should not amount to
the “massive” effort predicted by the District in its motion, Def.’s Mot. at 5.
Regarding the third and fourth prongs, both the plaintiffs and the public have a strong
interest in the prompt and proper resolution of this litigation, which has now been pending for
more than eight years. Further, the harm that could befall the plaintiffs and the public as a result
of noncompliance with the IDEA far outweighs the comparatively meager cost to the District of

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producing discovery regarding its post-2011 IDEA compliance. In sum, the Court finds that the
District has failed to demonstrate “that the probability of error in the class certification decision
is high enough that the costs of pressing ahead in [this Court] exceed the costs of waiting,” Blair,
181 F.3d at 835.
Signed by Royce C. Lamberth, United States District Judge, on January 3, 2014.

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