Opinion
Civil Action No. 99-2496 (GK)
July 10, 2002
MEMORANDUM-OPINION
Defendant British American Tobacco (Investments) Limited ("BATCo") has moved for a stay pending its expedited appeal of this Court's Order #157 and #183 and its oral Order of May 28, 2002, compelling production of the so-called "Foyle Memorandum". Plaintiff vigorously opposes the motion.
Both parties agree on the standards to be applied in determining whether to grant a stay pending appeal: the moving party must show that it has a substantial likelihood of success on the merits, that it will suffer irreparable injury if the stay is denied, that issuance of the stay will not cause substantial harm to other parties, and that the public interest will be served by issuance of the stay. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). The Court will address each of these factors in turn, albeit briefly given the urgency voiced by BATCo.
1. Regarding the likelihood of prevailing on appeal, the Court has already explained at some length in Order #183 why it believes the Foyle Memorandum is responsive to Plaintiff's request for production of documents, and why BATCo has waived its right to assert the attorney-client privilege. Nothing has changed in the nine days since issuance of Order #183. Moreover, as BATCo itself seems to recognize, there is a substantial question as to whether the Court of Appeals would even consider the merits of the appeal under the collateral order doctrine, as set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
2. Regarding the issue of irreparable injury, the Court concludes that BATCo has not asserted any specific irreparable injury that would occur upon compliance with the numerous Orders of this Court directing Defendant to produce the entire Foyle Memorandum to the Government. Moreover, as the Government points out in its papers, many portions of that Memorandum have already become public through issuance of the McCabe decision.
See McCabe v. British American Tobacco Australia Servs. Ltd., No. 8121 of 2001 (Supr. Ct. Victoria at Melbourne).
3. Regarding the third factor which the Court must consider, namely, injury to other parties, the Court concludes that the Plaintiff will suffer substantial harm if the stay is granted. The litigation tactics used by BATCo have already interferred with Plaintiff's ability to make full and timely use of the discovery process. Despite the fact that BATCo has had the Foyle Memorandum since at least February 2002, it has denied Plaintiff use of that Memorandum for purposes of deposing witnesses since that date. Moreover, depositions of fact witnesses were to conclude by July 1, 2002. Because of BATCo's dilatory conduct, the Court may well be forced to extend that deadline once the Government actually receives the Foyle Memorandum.
As all parties to this litigation know, this Court has set an extremely demanding schedule so that trial will go forward by July 15, 2003. Depositions of expert witnesses are to conclude by September 15, 2002, and dispositive motions are to be filed by October 15, 2002. These deadlines are a carefully calibrated part of the lengthy pretrial schedule in this complex case. Defendant's continued delay in producing the Foyle Memorandum would jeopardize those deadlines and derail the trial schedule.
It is true that a small number of depositions have been permitted beyond the July 1 date. In each instance, however, the parties either agreed or there was a compelling need to allow depositions beyond the July 1 deadline. In all instances, parties assured the Court that extending the deadline would in no way impact subsequent pretrial deadlines.
4. The applicable legal standard for considering whether to grant a motion for stay pending appeal requires weighing of the public interest. In this case, the Court concludes that the public interest would not only not be served by granting the stay but would affirmatively be impaired. Enormous resources have already been devoted to this case — by the Court, by U.S. taxpayers, and by the private parties. The case has received substantial public attention. On November 2, 2000 — more than a year and a half ago — the Court set July 15, 2003, as the firm trial date. It is essential that this case go forward on the schedule that has been set so that the trial date can be met. BATCo has possessed the Foyle Memorandum since February of this year, it is now July 10. Despite emergency Trans-Atlantic telephone calls, rulings by the Special Master, and several rulings by this Court, the Foyle Memorandum has still not been turned over to the Plaintiff. Such conduct puts the trial date at risk and, for that reason, a stay pending appeal would not serve the public interest.
The Court acknowledges that all parties have worked extraordinarily hard to ensure that the deadlines set in the Court's various scheduling orders are honored.
Finally, BATCo asks this Court to enter a three-day stay so it can file an emergency motion for a stay pending an expedited appeal with the Court of Appeals. There is no reason for the Court to countenance this delay or to take any action that would facilitate it. Given the resources at BATCo's disposal, one cannot help but think that its appellate papers are ready for filing. Consequently, BATCo's request for an alternative remedy of a three-day stay pending its filing of an emergency motion with the Court of Appeals for a Stay Pending Expedited Appeal is denied.