Tafas v. Dudas et al, No. 1:2007cv00846 - Document 91 (E.D. Va. 2007)

Court Description: MEMORANDUM OPINION AND ORDER granting 60 Motion for issuance of briefing schedule; denying 70 Motion for privilege log ; denying 75 Motion to Compel; denying 80 Motion to Compel. Signed by Judge Thomas Rawles Jones Jr. on 11/28/07. (ctat, )

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Tafas v. Dudas et al Doc. 91 Case 1:07-cv-00846-JCC-TRJ Document 91 Filed 11/28/2007 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria, Virginia Triantafyllos Tafas, Plaintiff, v. Jon Dudas, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 1:07cv846 Consolidated With ) SmithKline Beecham Corporation, et al, Plaintiffs, v. Jon Dudas, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:07cv1008 MEMORANDUM OPINION AND ORDER Before the court are four motions: defendants motion for issuance of a summary judgment briefing schedule without discovery (no. 60); plaintiff GlaxoSmithKline s motion to order a privilege log (no. 70); GlaxoSmithKline s motion to compel a complete administrative record (no. 75); and plaintiff Tafas motion to compel a privilege log (no. 80). For the reasons that follow, defendants motion (no. 60) is GRANTED and the three plaintiffs motions (nos. 70, 75, and 80) are DENIED. (Defendants motion requests inter alia that four noticed depositions not be conducted, and is therefore to that extent a request for a Rule 26(c)(1) protective order. That request is also granted, and the depositions in issue may not be conducted.) Dockets.Justia.com Case 1:07-cv-00846-JCC-TRJ Document 91 Filed 11/28/2007 Page 2 of 3 In this action under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq, plaintiffs attack new rules and regulations promulgated by the United States Patent and Trademark Office on several grounds. As relevant here, they claim that the agency s actions are arbitrary and capricious, and that the administrative record is incomplete. (They also argue bad faith, but neither amended complaint includes an explicit assertion of bad faith.) The four motions before the court collectively present the issue whether plaintiffs are entitled to any discovery to assist in preparation of their motions for summary judgment and defend against defendants anticipated summary judgment motion. As Judge Cacheris recognized in his opinion filed October 31, 2007 (no. 49), in some situations limited discovery is appropriate in actions attacking agency decisions under the APA. However, the magistrate judge finds that no discovery is warranted in the circumstances presented here. I do so after application of the standards discussed in Fort Sumter Tours, Inc. v. Babbit, 66 F.3d 1324, 1336 (4th Cir. 1995) and the other applicable authorities cited by the parties. In the papers and at oral argument, plaintiffs assert that discovery would be useful if not necessary to pursue these claims. However, their assertions, in their briefs and especially at oral argument, make it clear despite their denials that they want to go on a classic fishing expedition. Their argument, stripped to its essence, is that bad faith, arbitrariness, and incompleteness of the administrative record are all apparent on the face of the present record, and they want to go on a speculative search for additional evidence to support already-demonstrated claims. That is not a proper basis for discovery in an action under the APA under Fourth Circuit or any other precedent. Defendants have met and overcome each of plaintiffs particular assertions in their omnibus response to plaintiffs motions (no. 83) and in the brief in support of their own motion (no. 61). Those points need not be repeated here. Discovery is indeed appropriate in some APA cases, as this court has previously ruled. This is not such a case. 2 Case 1:07-cv-00846-JCC-TRJ Document 91 Filed 11/28/2007 Page 3 of 3 Defendants motion (no. 60) is accordingly GRANTED, and plaintiffs motions (nos. 70, 75, and 80) are DENIED. It is so ORDERED. /s/ Thomas Rawles Jones, Jr. United States Magistrate Judge November 28, 2007 Alexandria, Virginia 3

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