Available outside my office.
Mean: 29.14
Median: 30
High: 35
Sample answer after the jump.
Plaintiff’s Motion to Compel Expedited Discovery is GRANTED.
Pre-Conference Discovery
A party may not seek discovery from any source before the parties have held the discovery conference required by FRCP 26(f). Plaintiff filed his complaint on March 16 and sought discovery on March 16; the parties have not had time to confer.
A party may take pre-conference discovery with court order, FRCP 26(d), on a showing of good cause, where the “need for discovery, in light of concerns for due administration of justice, outweighs the prejudice to the responding party.” TracFone (S.D. Fla. 2014). Courts consider five factors: 1) whether a motion for a preliminary injunction is pending; 2) the breadth of requested discovery; 3) the reason(s) for requesting expedited discovery; 4) the burden on the opponent to comply with the request for discovery; and 5) how far in advance of the typical discovery process the request is made.
Three of the five factors favor plaintiff’s motion.
• The plaintiff justifies the request for discovery by pointing to Murdoch’s age and health. Murdoch turned 95 on March 11 and has suffered numerous medical problems in the past five years, including a severe case of COVID, heart problems, two bouts of pneumonia, and one fainting incident. Plaintiff worries that, by the time the action reaches discovery, Murdoch may have died or be too ill to sit for a deposition. Plaintiff also represents that defendants will pursue ordinary legal strategy, including attempting to dismiss the complaint. Resolving that motion may take several months. And that motion may trigger several rounds of new pleadings and new motions, all requiring several months to resolve. This exacerbates the concerns for Murdoch’s age and health.
• Plaintiff seeks limited discovery. He wants Murdoch’s deposition to ask questions and gather information limited to Murdoch’s involvement the decision to publish the article and in discussions over that decision. Plaintiff will not seek broader information at this time.
• The discovery should impose a limited burden on Murdoch. Murdoch has knowledge of the information sought. He made public statements claiming involvement in framing and deciding to publish the story. He participated in the decision to publish despite a prior conversation in which plaintiff told Murdoch the article was “fake.” Murdoch is widely known for his hands-on approach to editorial decisionmaking, further demonstrating his knowledge of the information sought. For similar reasons, Murdoch has access to the documents sought. He is director and majority owner of the corporation that operates the Wall Street Journal and, again, is known for his hands-on approach to running News Corp.
Two factors point against plaintiff’s motion:
• No preliminary injunction is pending. There is no immediate need for the discovery to resolve a motion.
• The motion is well in advance of the typical discovery process. Plaintiff moved on March 26, 10 days after filing the Complaint and 5 days after all defendants waived service of process. The litigation has barely begun. Plaintiffs have, at minimum, 16 days to respond to the Complaint. FRCP 12(a)(1)(A). And that is before the briefing on at least one motion to dismiss, which plaintiffs expect. This deposition would occur months—perhaps more than a year—earlier than it ordinarily would.
Given Murdoch’s age and health concerns and the length of litigation, the narrow scope of discovery, and the easy access to information, the balance of factors favors early discovery.
Discoverable
Even if the factors favor early discovery, the information sought must be discoverable. Parties may take discovery of any nonprivileged matter, relevant to any party’s claim or defense, and proportional to the needs of the case, balancing a host of factors. FRCP 26(b)(1). Proportionality ensures that the cost and burden of discovery aligns with size and import of the case—that large discovery is reserved for cases that warrant it. The proportionality analysis considers: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” FRCP 26(b)(1).
Murdoch’s testimony about the decision to publish is not privileged, as no legal privilege guards the media’s internal deliberations about what to publish. Zurcher. The information is relevant. As a public official, Trump must prove actual malice—that defendants knew or recklessly disregarded the truth or falsity of the statements. New York Times. That inquiry necessarily requires discovery of defendants’ actions in preparing an article and deciding whether to publish. Zurcher. Murdoch’s testimony and the documents he would produce go to that central issue in the action.
The discovery is proportional to the needs of the case. This action involves important issues—a major news outlet allegedly defaming the President of the United States by suggesting he used sexually explicit and offensive speech and suggesting an association with a notorious sexual abuser. Although the Complaint does not specify the amount sought, it is reasonable to infer a substantial amount of money is at issue. Murdoch has access to the information, for the reasons described above. Murdoch’s testimony is important to resolving the action, as it goes to the publication process and whether Murdoch and others knew the article was false. Finally, the burden of the discovery does not outweigh its benefit, given Murdoch’s access and the need for the information.
