State Of New York et al v. United States Department of Commerce et al, No. 1:2018cv02921 - Document 362 (S.D.N.Y. 2018)

Court Description: MEMORANDUM OPINION AND ORDER re: 359 LETTER MOTION to Stay Discovery Pending Supreme Court Review addressed to Judge Jesse M. Furman from Carol Federighi dated 09/28/2018 filed by United States Department of Commerce. Defendants' ; latest application for stay of discovery in these cases, including the depositions of Secretary Ross and Assistant Attorney General Gore, is DENIED. The application - which does not even bother to recite the requirements for a stay, let alone attem pt to show that those requirements have been met - is hard to understand as anything more than a pro forma box-checking exercise for purposes of seeking relief in the Supreme Court. This Court has already rejected Defendants' requests for stays of discovery altogether, of the Assistant Attorney General Gore's deposition, and of Secretary Ross's deposition, (see Docket No. 308 ; Docket No. 345 , at 12), and it adheres to its views on the merits of those requests. To the extent th at Defendants request a stay of all discovery, their application is particularly frivolous - if not outrageous - given their inexplicable (and still unexplained) two-month delay in seeking that relief, see New York v. U.S. Dept of Commerce, No . 18-CV-2921 (JMF), 2018 WL 4279467, at *2 (S.D.N.Y. Sept. 7, 2018), and their representation to the Second Circuit only last week that they were not actually seeking a stay of all discovery, (see Docket No. 360 , at 1-2). If anything, the notion th at Defendants will suffer irreparable harm absent a stay of all discovery is even more far-fetched now than it was when first requested on August 31, 2018, as the parties are nearly three months into discovery and only days away from completing it. T he Court will not permit (and doubts that either the Second Circuit or the Supreme Court would permit) Defendants to use their arguably timely challenges to the Orders authorizing depositions of Assistant Attorney General Gore and Secretary Ross to b ootstrap an untimely - and almost moot - challenge to the July 3rd Order authorizing extra-record discovery, particularly when only nine business days remain before the close of such discovery and much apparently remains to be done. (See Docket No. [ 360-1]). Unless and until this Court's Orders are stayed by a higher court, Defendants shall comply with their discovery obligations completely and expeditiously; the Court will not look kindly on any delay, and - absent relief from a hi gher court - will not extend discovery beyond October 12th given the November 5th trial date. As for the deposition of Secretary Ross, which has been administratively stayed by the Court of Appeals (see Docket No. [360-3]), the Court takes Defendants at their word when they say that the deposition "can be conducted expeditiously should [the Second Circuit] deny the government's petition," (Pets. for Mandamus at 32, Nos. 18-2856 & 18-2857 (2d Cir. Sept. 27, 2018)). In light of tha t representation, and the discovery deadline of October 12, 2018, Defendants should endeavor to ensure that Secretary Ross remains available for a deposition on October 11, 2018, so that the deposition may take place before discovery closes in the e vent that the administrative stay is lifted by that date and Defendants' efforts to obtain permanent relief fail. For the foregoing reasons, Defendants' latest application for stay of discovery in these cases, "including" the depo sitions of Secretary Ross and Assistant Attorney General Gore, is DENIED. The Clerk of Court is directed to terminate Docket No. 359 . (Signed by Judge Jesse M. Furman on 9/30/2018) Filed In Associated Cases: 1:18-cv-02921-JMF, 1:18-cv-05025-JMF(ab) Modified on 9/30/2018 (ab).