Reply briefing is always a bit of a funny thing. It’s typically a rehash of arguments made in your original motion. There is a good reason for that; reply briefing is required to be narrow in scope. You have to limit the reply to responding to what the other side wrote in their response. If you go outside that requirement by including new information, you risk getting admonished by the judge, as well as authorizing the other side to be able to file additional briefing (typically called a sur-reply).
So typically, you don’t get a whole lot that is new or interesting. But that of course doesn’t mean that they don’t serve a purpose. Replies allow the moving party to get the last word, as well as counter arguments you may not have expected and patch up holes in your argument exposed by the other side in their brief. With that in mind, Precourt Sports Ventures and Major League Soccer have filed their reply briefing to the original Motion to Stay Discovery which was opposed by the City and State. It comes in at a modest eight pages (reply briefs are generally relatively short), so lets’ take a look.
Reiterates that Ohio Courts have discretion to stay Discovery:
PSV/MLS cite a litany of case-law (and the relevant local rule) which they argue grants courts the ability to stay (or limit) the scope of discovery pending dispositive motions. They also argue that the plaintiffs don’t really contest this issue.
Now I think this is a bit of clever sleight-of-hand by PSV/MLS. While it’s true that the plaintiffs don’t really contest the principle that courts have the discretion to stay/limit discovery proceedings (why would they; it’s as close to black-letter law as one could get), it’s a bit of a stretch to say that the plaintiffs concede that discovery would be “unduly burdensome.” There is also the issue of the offer by the plaintiffs to limit the scope of discovery, which we’ll get to later.
PSV/MLS restate that a stay of discovery would limit the burden and expense:
In light of the fact this is a dispositive motion (if the defendants’ win, the case goes away), PSV/MLS reiterate that a stay of discovery would prohibit each side from incurring expenses. And, since the court is simply reviewing the fact/pleadings in this case in its decision, discovery does not provide the court with anything relevant in making its decision.
First, check out the red underlined section. Discovery would have no effect on a resolution of the claims if the plaintiffs survive the motion to dismiss? Huh? Either PSV/MLS is planning a summary judgment, or a motion to dismiss based on the six-month period expiring, or they’re planning to settle if they lose the motion to dismiss. Let’s stick a pin in that and I’ll come back to it at a later date.
After restating that the stay will save the defendants time and expense, the defendants drop this little sugar-plum on us, arguing that the stay is in the best interests of the plaintiffs, since commencing discovery would allow the *defendants* to dig around into what the plaintiffs knew about the purported “notice” issue.
I think it’s fair to put this in the “thinly veiled threat” department. Beyond that, I’m not sure why this is relevant, or why the plaintiffs would care in the context of them getting discovery. There’s also the issue itself that is raised by the defendants: notice. Again, we’ll get to that in a bit.
PSV/MLS argue that a protective order does not mitigate the issue of time/expense; and says the offer to limit discovery was “half-hearted”:
Strictly speaking, PSV/MLS are on much stronger ground arguing that a protective order does not relieve the plaintiffs of the cost/time of comply with discovery. It merely is designed to prevent leaks to other parties. So lets move to the more interesting argument about the plaintiffs’ offer to limit discovery.
Now, this strikes me as slightly disingenuous from the defendants. They complain about the plaintiffs not presenting a formal offer, but in the next breath argue that limiting discovery to “any fraction” of the original request would be too much. So basically, they’re arguing that any discovery at this stage is inappropriate. So why raise a stink about not getting a formal offer limiting discovery when you had no intention of complying with it? I can’t imagine this argument will get very far; if discovery is going to be stayed, it’ll be on other grounds that the defendant has argued.
PSV/MLS argue that the plaintiffs’ discovery requests have no relevance to basis for a stay in this case:
If I’m reading this correctly, the basic argument here is that notwithstanding the reasoning the plaintiffs have cited for the need for discovery, it’s essentially irrelevant to the fundamental issue at play here: discovery at this point is unduly burdensome and expensive.
About that boxed section…that seems like a summary judgment argument is in our future, if this motion is unsuccessful. But maybe I’m reading too much into it. We’ll see.
Finally, PSV/MLS argue that the plaintiffs’ concern about “running out the clock” is baseless and irrelevant to the motion to stay discovery:
We end with something of a mind-bender, as the defendants argue (AGAIN), that the plaintiffs have been on notice for months that PSV may relocate the team. They then argue that the plaintiffs are the ones at fault if they dithered with this information, and in any case, it’s not relevant to the motion to stay discovery.
If someone can find me where that very-clear language has been provided by the defendants in any of their purported notices, I’d be much obliged. Again, maybe the judge sees things the defendants’ way. We’ll see.
Anyway, that covers it for this motion. Tomorrow, we’ve got a status conference. I’m hoping to have news out of that after it happens. My guess is we’ll get some clarification on the scheduling for arguing these motions, but not much more than that.