CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA v. SERVIN et al

Filing 22

REPLY to opposition to motion re 17 MOTION to Stay of Discovery and Rule 26 Disclosures filed by MORGAN GOODWIN, JOHN and JANE DOES NOS. 1-20, SARAH MURPHY, JACQUES SERVIN, DAVID SIEVERS, SUPPORT AND COMMITMENT, INC., IGOR VAMOS. (Corn-Revere, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA,
Plaintiff,
v.
JACQUES SERVIN, et al.
Defendants.

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Case No. 09-CV-02014-RWR

DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO
MOTION FOR STAY OF DISCOVERY AND RULE 26 DISCLOSURES
AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

TABLE OF CONTENTS
Page
ARGUMENT..............................................................................................................................1
I.

THE RELIEF SOUGHT BY DEFENDANTS IS APPROPRIATE GIVEN THE
FIRST AMENDMENT INTERESTS AT STAKE..............................................................1
A.

Courts Often Limit Or Stay Discovery To Avoid Undue Burdens On Free
Speech. ......................................................................................................................2

B.

There Is No Ongoing Harm To The Plaintiff. .............................................................4

CONCLUSION...........................................................................................................................5

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TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Bon Air Hotel, Inc. v. Time, Inc.,
426 F.2d 858 (5th Cir. 1970) .................................................................................................3
Herbert v. Lando,
441 U.S. 153 (1979) ..............................................................................................................2
Institut Pasteur v. Chiron Corp.,
315 F.Supp.2d 33 (D.D.C. 2004) ...........................................................................................2
McBride v. Merrell Dow & Pharm. Inc.,
717 F.2d 1460 (D.C. Cir. 1983) .............................................................................................3
Moldea v. New York Times Co.,
137 F.R.D. 1 (D.D.C. 1990)...............................................................................................3, 4
PCH Mut. Ins. Co., Inc. v. Casualty & Sur., Inc.,
569 F.Supp.2d 67 (D.D.C. 2008) ...........................................................................................2
Washington Post Co. v. Keogh,
365 F.2d 965 (1966) ..............................................................................................................3
White v. Fraternal Order of Police,
909 F.2d 512 (D.C. Cir. 1990) ...................................................................................... 2, 3, 4
Zubulake v. UBS Warburg LLC,
229 F.R.D. 422 (S.D.N.Y. 2004) ...........................................................................................4

STATE CASES
Maressa v. New Jersey Monthly,
89 N.J. 176, 445 A.2d 376 (1982)..........................................................................................3
Thomas v. Quintero,
126 Cal. App. 4th 635 (Cal. App. 1st Dist. 2005)...................................................................3

RULES
Fed. R. Civ. P. 26........................................................................................................................1

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CONSTITUTIONAL PROVISIONS
U.S. CONST. art. 1............................................................................................................... passim

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ARGUMENT
I.

THE RELIEF SOUGHT BY DEFENDANTS IS APPROPRIATE GIVEN THE
FIRST AMENDMENT INTERESTS AT STAKE.
Defendants Jacques Servin, Igor Vamos, Support and Commitment, Inc., David Seivers,

Morgan Goodwin, Sarah Murphy, and John and Jane Does Nos. 1-20 (collectively “Defendants”)
hereby reply to Plaintiff Chamber of Commerce of the United States of America’s (“Plaintiff” or
the “Chamber”) opposition to Defendants’ January 5, 2010 Motion for a Stay of Discovery and a
Stay of the Parties’ Obligations under Fed. R. Civ. P. 26, pending the Court’s ruling on
Defendants’ Motion to Dismiss.
Plaintiff’s principal argument against a stay of discovery is that it does not believe
Defendants’ Motion to Dismiss will succeed. That argument is, of course, inapposite – the
question at hand is whether a stay is appropriate while the Court considers whether Plaintiff has
stated a cause of action. To avoid burdening the Court with duplicative papers, Defendants will
not argue the merits of the dismissal motion here, but respectfully refers the Court to their
memorandum and forthcoming reply in support of that motion. 1
Setting aside its high-flown rhetoric against dismissal, Plaintiff’s Opposition does little to
rebut the actual motion at hand – a simple request to stay discovery and Rule 26 disclosures in
order to protect Defendants’ free speech rights and avoid the waste of party resources. Such a
stay is neither unusual under the circumstances nor will it prejudice the Plaintiff. The
discretionary procedural relief Defendants seek here is limited in nature and entirely appropriate
in light of the constitutional interests at issue. The stay requested likely would be relatively
brief, as Defendants have only requested that discovery and Rule 26 disclosures be stayed
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If Plaintiff’s reasoning is correct and this procedural motion rises or falls on the merits of
Defendants’ Motion to Dismiss, then this procedural motion effectively becomes a litmus test for
the dispositive motion, burdening the Court with deciding the merits before they have been fully
briefed and argued.
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pending the motion to dismiss. Given that Plaintiff has offered no reasonable basis to conclude
that a short delay would prejudice its case, the Constitution and common sense support a short
delay in discovery.
A.

Courts Often Limit Or Stay Discovery To Avoid Undue Burdens On Free
Speech.

“[T]he Court has extremely broad discretion in controlling discovery, and the decision on
whether to stay discovery is within the sound discretion of the district court.” PCH Mut. Ins.
Co., Inc. v. Casualty & Sur., Inc., 569 F.Supp.2d 67, 78 (D.D.C. 2008); see also Institut Pasteur
v. Chiron Corp., 315 F.Supp.2d 33, 37 (D.D.C. 2004) (internal citations omitted) (“‘It is well
settled that discovery is generally considered inappropriate while a motion that would be
thoroughly dispositive of the claims in the Complaint is pending.’”). Of course, “a pending
motion to dismiss,” by itself, does not automatically “warrant a stay of discovery.” Plaintiff’s
Opposition to Defendants’ Motion for a Stay of Discovery (“Opp. Mem.”) at ¶ 13. Such a stay is
warranted, however, when the litigation targets political speech and discovery would necessarily
exacerbate the potential free speech harms.
In supervising discovery, “a district court has a duty to consider First Amendment
interests as well as the private interests of the Plaintiff.” Herbert v. Lando, 441 U.S. 153, 178
(1979) (Powell, J., concurring). In particular, it is appropriate for courts to defer discovery issues
to reduce First Amendment concerns where the resolution of issues by motion “might reduce the
need for the material demanded.” Id. at 180 n.4. See also, e.g., White v. Fraternal Order of
Police, 909 F.2d 512, 517 (D.C. Cir. 1990) (affirming order staying discovery in libel case
pending resolution of summary judgment motion). The discovery process necessarily burdens
defendants by forcing them to disclose otherwise private facts and devote time and energy to
responding to invasive questions. Where, as here, there is no legitimate basis for the underlying
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lawsuit, discovery is necessarily harassing. And as the D.C. Circuit noted in Washington Post
Co. v. Keogh, 365 F.2d 965, 968 (1966), “[u]nless persons … desiring to exercise their First
Amendment rights are assured freedom from the harassment of lawsuits, they will tend to
become self-censors [a]nd to this extent debate on public issues will become less uninhibited,
less robust, and less wide-open.” See also Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 864
(5th Cir. 1970) (quoting same).
Indeed, courts have recognized the potential chilling effects of discovery in free speech
cases. See, e.g., McBride v. Merrell Dow & Pharm. Inc., 717 F.2d 1460, 1466 (D.C. Cir. 1983)
(“Even if many actions [involving speech] fail, the risks and high costs of litigation may lead to
undesirable forms of self-censorship . . . . [Such] suits . . . should be controlled so as to
minimize their adverse impact on” First Amendment freedoms); Moldea v. New York Times Co.,
137 F.R.D. 1, 2 (D.D.C. 1990) (in light of “significant First Amendment issues” raised, court
granted stay of discovery pending ruling on summary judgment motion brought early in the
litigation); Maressa v. New Jersey Monthly, 89 N.J. 176, 188, 445 A.2d 376 (1982) (in the press
context, “[d]iscovery of editorial processes is especially threatening to newspersons because it
inhibits the exchange of ideas . . .”); White, 909 F.2d at 517.2
Plaintiff offers little against the numerous cases supporting a stay. Plaintiff’s
mischaracterizes this Court’s decision in Moldea by obscuring the result. While it is true that the
Moldea Court noted that “significant First Amendment issues raised in [that] case

. . . standing

alone would not automatically entitle defendant to a stay of discovery,” 137 F.R.D. at 1, the
various factors at play in that case, as here, supported a stay in light of the constitutional interests

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In addition to case law, this principle is also embodied in some states’ anti-SLAPP
(strategic lawsuit against public participation) statutes. See, e.g., Thomas v. Quintero, 126 Cal.
App. 4th 635, 650 (Cal. App. 1st Dist. 2005) (citing Cal. Code Civ. Proc. § 425.16(g)).
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involved. There, “[t]he gravamen of the” defendant’s dispositive motion was “its argument that
the Court must determine as a matter of law whether the words or phrases contained in the book
review are sufficiently factual to be susceptible of being proved true or false.” Id. The Court
found that the plaintiff had “not persuasively shown in its opposition to this motion that such a
determination requires scrutiny beyond the challenged publication.” Id. Here, as in Moldea, the
majority of the facts are undisputed, and the Court must determine, as a matter of law, if
Defendants’ statements and actions are actionable. Plaintiff also argues incorrectly that in White,
“the Court did not even raise the First Amendment or freedom of speech in upholding the stay of
discovery.” Opp. Mem. ¶ 10. But in that case, the causes of action were defamation and
invasion of privacy, which have been governed by strict First Amendment limitations for 46
years. Therefore, the court’s stay of discovery cannot be divorced from the essence of the case.
B.

There Is No Ongoing Harm To The Plaintiff.

Plaintiff has offered no credible basis for its claim that a delay would prejudice its case.
Plaintiff charges that “Defendants have expressly refused to cease their wrongful conduct,” Opp.
Mem. at ¶ 6, but declines to explain what such conduct might be. The satirical press conference
is long over, and the domain noted in Plaintiff’s complaint, www.chamber-of-commerce.us, is no
longer registered to any Defendant or any entity or person related to any Defendant.
As for Plaintiff’s purported concerns about preservation, Defendants and Defendants’
counsel are well aware that “[t]he authority to sanction litigants for spoliation arises jointly under
the Federal Rules of Civil Procedure and the court's inherent powers.” Zubulake v. UBS
Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004). It would, of course, be both unethical and
illegal for either Defendants or Defendants’ counsel to knowingly allow the spoliation of
relevant evidence. Thus, Plaintiff need not “specifically request[] assurances that Defendants
would preserve evidence” – and Defendants need not respond to such insulting requests. Opp.
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Mem. ¶ 20. Defendants and Defendants’ counsel are properly abiding by all legal and ethical
guidelines and preserving all relevant evidence to the best of their knowledge and ability.
CONCLUSION
This case presents exactly the circumstance in which a stay of discovery is necessary and
appropriate. Like many artists, writers and activists before them, Defendants used parody and
satire to spark debate and engage in important political discourse. The cases cited supra and in
Defendants’ initial moving papers make clear that discovery in a case where such elemental First
Amendment rights are at stake is not to be undertaken lightly and requires judicial supervision.
Plaintiff can identify no prejudice that would result from holding off the disclosure procedures
until Defendants’ Motion to Dismiss is decided. Given the substantial arguments Defendants
have set forth in those proceedings and the significant harm to First Amendment freedoms that
discovery would impose, Defendants respectfully request that the limited stay they request be
granted.
Dated this 1st day of February, 2010.
Respectfully submitted,
/s/ Robert Corn-Revere
Robert Corn-Revere (D.C. Bar No. 375415)
[e-mail]
Lisa B. Zycherman (D.C. Bar No. 495277)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Avenue, NW, Suite 200
Washington, D.C. 20006
[phone]
[phone] fax
Bruce E. H. Johnson (admitted pro hac vice)
[e-mail]
Ambika Doran (admitted pro hac vice)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
1201 Third Avenue, Suite 2200
5

Seattle, WA 98101-3045
[phone]
[phone] fax
Thomas R. Burke (admitted pro hac vice)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
[phone]
[phone] fax
Matthew Zimmerman (pro hac vice pending)
[e-mail]
Corynne McSherry (pro hac vice pending)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
[phone]
[phone] fax

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CERTIFICATE OF SERVICE
Pursuant to LCvR 5.3, I hereby certify that, on February 1, 2010, I electronically filed
with the Clerk of the Court the foregoing Reply Memorandum using the CM/ECF system, and
service was effected electronically pursuant to LCvR 5.4(d) on the parties listed below.

Michael John Mueller
Hunton & Williams LLP
1900 K Street, NW, Suite 1200
Washington, DC 20006
Email: [e-mail]
Gregory A. Beck
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
Email: [e-mail]
Deepak Gupta
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
Email: [e-mail]

/s/ Robert Corn-Revere
Robert Corn-Revere (D.C. Bar No. 375415)

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