NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA

Filing 14

MOTION to Stay Discovery by UNITED STATES OF AMERICA (Attachments: #1 Text of Proposed Order)(Nebeker, William)

Case 1:16-cv-00745-ESH Document 14 Filed 07/26/16 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,

)
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 16-745 ESH
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
)
______________________________)
DEFENDANT’S MOTION TO STAY DISCOVERY
Defendant hereby moves, pursuant to Fed. R. Civ. P. 6(b), 26
and 30(d), as well as the inherent power of the Court, for a protective
order staying discovery in this action until after resolution of
pending dispositive motion in the case and the motion for class
certification.

Plaintiffs’ counsel, William H. Narwold, Esq., has

indicated that Plaintiffs are unwilling to agree to a stay in the
case.

Case 1:16-cv-00745-ESH Document 14 Filed 07/26/16 Page 2 of 6

The Court is respectfully referred to the attached memorandum
in support of this motion.
Respectfully submitted,
CHANNING D. PHILLIPS, DC Bar #415793
United States Attorney

DANIEL F. VAN HORN, DC Bar #924092
Chief, Civil Division

By:

/s/
W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney

-2-

Case 1:16-cv-00745-ESH Document 14 Filed 07/26/16 Page 3 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,

)
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 16-745 ESH
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
)
______________________________)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT'S MOTION TO STAY DISCOVERY
On June 27, 2016, Defendant filed a Motion To Dismiss Or, In
The Alternative, For Summary Judgment.
currently due on July 29, 2016.

Plaintiffs’ response is

Also pending is Plaintiffs’ Motion

For Class Certification, which has not yet been fully briefed.1

In

the meantime, Plaintiffs have sought to confer regarding the scope
of discovery, as would be called for under Fed. R. Civ., P. 26(f)
and Local Civ. R. 16.3.

In conferring on the matters reflected in

those rules, Plaintiffs have indicated that they would oppose a stay
of discovery, which Defendant has proposed should await a ruling from
the Court regarding what issues, if any, will remain to be addressed
in discovery and who the Plaintiffs will be.2

1

Defendant opposed the motion for class certification only
yesterday; thus Plaintiffs’ reply is due on August 4, 2016.
2

Discovery is generally limited to “nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
needs of the case.” Fed. R. Civ. P. 26(b)(1). Before resolution
of the two other pending motions, it is difficult, if not impossible,

Case 1:16-cv-00745-ESH Document 14 Filed 07/26/16 Page 4 of 6

Defendant asks the Court for an Order staying discovery.

This

Court has broad authority to regulate discovery and “should not
hesitate to exercise appropriate control over the discovery
process.”

Herbert v. Lando, 441 U.S. 153, 177 (1979); see Fed. R.

Civ. P. 26(c).

It is particularly appropriate to stay discovery

pending the outcome of dispositive motions.

See Brennan v. Local

Union No. 639, International Brotherhood of Teamsters, 494 F.2d 1092,
1100 (D.C. Cir. 1974), cert. denied, 429 U.S. 1123 (1977).

When “the

determination of a preliminary question may dispose of the entire
suit, applications for discovery may properly be deferred until the
determination of such questions.”

O’Brien v. Avco Corp., 309 F.

Supp. 703, 705 (S.D.N.Y. 1969).
Indeed, staying discovery pending resolution of a potentially
dispositive motion “is an eminently logical means to prevent wasting
the time and effort of all concerned, and to make the most efficient
use of judicial resources.”

Coastal States Gas Corp. v. Department

of Energy, 84 F.R.D. 278, 282 (D. Del. 1982), citing Westminster
Investing Corp. v. G.C. Murphy Co., 434 F.2d 521, 526 (D.C. Cir.
to ascertain what issues will remain in the case and what could be
seen as proportional to a case that is either a case with three
plaintiffs (who can seek a waiver of PACER fees as non-profit
organizations) or a class-action involving every paying PACER user
but plaintiffs’ counsel and the government for the past six years.
In addition, the discovery sought may well be duplicative of
discovery that would be taken in the other pending, purported class
action regarding PACER fees, Fisher v. United States, U.S. Court of
Federal Claims Case No. 1:15-cv-01575-TCW.
-22

Case 1:16-cv-00745-ESH Document 14 Filed 07/26/16 Page 5 of 6

1970).
WHEREFORE, Defendant asks that the Court stay discovery and
establish a new date for the parties to meet and confer under Local
Civ. R. 16.3 only after resolution of the pending dispositive motion
and motion for class certification.
Respectfully submitted,

CHANNING D. PHILLIPS, DC Bar #415793
United States Attorney

DANIEL F. VAN HORN, DC Bar #924092
Chief, Civil Division

By:

/s/
W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney
555 4th Street, N.W.
Washington, DC 20530
[phone]
[e-mail]

-33

Case 1:16-cv-00745-ESH Document 14 Filed 07/26/16 Page 6 of 6

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that service of the foregoing Defendant’s
Motion To Stay Discovery, supporting memorandum, and a proposed Order
has been made through the Court’s electronic transmission facilities
on this 26th day of July, 2016.

/s/
W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney
555 4th Street, N.W.
Civil Division
Washington, DC 20530
[phone]
[e-mail]