Tobey v. Napolitano et al

Filing 52

Reply to Motion re 51 MOTION to Stay Discovery and Opposition filed by Aaron Tobey. (Knicely, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AARON TOBEY,
Plaintiff,
V.
JANET NAPOLITANO, et al.,
Defendants.

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Civil Action No. 3:11cv154-HEH

PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR STAY OF DISCOVERY
Plaintiff Aaron Tobey hereby files this memorandum in opposition to the motion
to stay discovery filed by Defendants Janet Napolitano, John Pistole, Rebecca Smith, and
Terri Jones (collectively “Federal Defendants”).
The Federal defendants fail to recognize that the facts relating to the roles and
participation of the relevant actors in the seizure and arrest of Aaron Tobey are wholly
integrated among the Federal and Commission defendants. In such circumstances, not
only is the need for discovery particularly acute (see Alston v. Parker, 363 F.3d 229 n.6
(3d Cir. 2004), the Federal actors possess relevant, material and properly discoverable
information regarding the claims made against the Commission defendants, whether or
not the Federal defendants are dismissed from the case. A stay of discovery would
therefore not only be inappropriate, it would unduly prejudice plaintiff’s preparation for
trial.1

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Contrary to the Federal defendants’ assertions, consideration of the Federal
defendants qualified immunity defenses is premature given the insufficient factual record.
See Hydrick v. Hunter, 500 F.3d 978 (9th Cir. 2007).

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The assertion that the proposed stay will eliminate adverse “social costs” to the
Federal defendants runs contrary to the very authority upon which they rely. Even with a
stay, the Federal defendants and Federal counsel would nevertheless be required to
participate in the discovery involving the Commission defendants, including depositions
of the Commission defendants and Mr. Tobey. Thus, as the Supreme Court said in
Ashcroft v. Iqbal , 129 S.Ct. 1937, 1953 (2009) (paraphrasing), “it would prove necessary
for [the Federal defendants] and their counsel to participate in the process to ensure the
case does not develop in a misleading or slanted way that causes prejudice to their
position. Even if [the Federal defendants] are not yet themselves subject to discovery
orders, then, they would not be free from the burdens of discovery.”
In sum, the proposed bifurcation of discovery would chop the case into the
unmanageable pieces that the Supreme Court has eschewed, would visit undue prejudice
on plaintiff in discovering facts necessary for trial, and would not avoid the ostensible
harms of which the Federal defendants so vigorously complain. Id.
Fact discovery in this case ends on November 25, 2011, and trial begins on
January 18, 2012. In light of the foregoing, Plaintiff’s counsel advised counsel for the
Federal Defendants that as an alternative he would consent to a one-week extension of
time under Local Rule 26 for the Federal Defendants to serve objections to Plaintiff’s
discovery requests (served on August 16, 2011). Accordingly, Plaintiff respectfully
requests that the Court deny the Federal Defendants’ motion for an unconditional stay of
discovery and, instead, issue an order extending by one week the Federal Defendants
time to serve objections to Plaintiff’s discovery requests.
Dated this 29th of August, 2011.

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Respectfully submitted,
By:

/s/ James J. Knicely___________________
James J. Knicely (VSB #19356)
Robert Luther III (VSB #78766)
KNICELY & ASSOCIATES, P.C.
487 McLaws Circle, Suite 2
Williamsburg, Virginia 23185
[phone] (phone)
[phone] (fax)
[e-mail]
Anand Agneshwar (admitted pro hac vice)
Alan C. Veronick (admitted pro hac vice)
ARNOLD & PORTER, LLP
399 Park Avenue
New York, New York 10022-4690
[phone] (phone)
(212) 212-715.1399 (fax)
[e-mail]
Of Counsel
John W. Whitehead (VSB #20361)
Douglas R. McKusick (VSB #72201)
The Rutherford Institute
1440 Sachem Place
Charlottesville, Virginia 22906
Of Counsel
Participating Attorneys for
THE RUTHERFORD INSTITUTE
Attorneys for Plaintiff, AARON TOBEY

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CERTIFICATE OF SERVICE
I hereby certify that on August 29, 2011, the foregoing Plaintiff’s Opposition to
Defendants’ Motion for Stay of Discovery was electronically filed with the Clerk of
Court using the CM/ECF system, which will send notification of such filing to:
Carlotta P. Wells, Esquire
U.S. Department of Justice – Civil Division
20 Massachusetts Avenue NW – Rm. 7152
Washington, D.C. 20530
[e-mail]
Debra J. Prillaman, Esquire
Robin Perrin Meier, Esquire
Office of the United States Attorney for the Eastern District of Virginia
600 East Main St., Suite 1800
Richmond, Virginia 23219-2447
[e-mail]
[e-mail]
Paul W. Jacobs, II, Esquire
Henry I. Willett, Esquire
Belinda D. Jones, Esquire
CHRISTIAN & BARTON, LLP
909 East Main St., Suite 1200
Richmond, Virginia 23219-3095
[e-mail]
[e-mail]
[e-mail]
Respectfully Submitted,

By:

/s/ James J. Knicely___________________
James J. Knicely (VSB #19356)
KNICELY & ASSOCIATES, P.C.
487 McLaws Circle, Suite 2
Williamsburg, Virginia 23185
[phone] (phone)
[phone] (fax)
[e-mail]
Participating Attorneys for
THE RUTHERFORD INSTITUTE
Attorneys for Plaintiff, AARON TOBEY

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