The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge
ORDER GRANTING MOTION TO STAY DISCOVERY [ECF NO. 52]
Before the Court is the motion of the Federal defendants*fn1
filed on February 13, 2013, to stay discovery. (ECF No. 52).
According to the Federal defendants, the Plaintiffs do not oppose. The
non-Federal defendants, however, consisting of Metropolitan
Interpreters and Translators, Inc. , and individual defendants
employed by Metropolitan identified by their initials, J.C., R.P.,
M.L. and B.A., have opposed any stay regarding their cases. (ECF No.
Plaintiffs are current and former employees of Metropolitan who worked as linguists. According to Plaintiffs, Metropolitan had a contract with the Drug Enforcement Administration for translation services and Plaintiffs were assigned work, from time to time, pursuant to that contract. Plaintiffs main allegations are that they suffered adverse employment action and were otherwise damaged or aggrieved by being subjected to polygraph examinations by Drug Enforcement Administration personnel allegedly in violation of the Employee Polygraph Protection Act, 29 U.S.C. § 2002.
The Complaint was filed on February 23, 2012, and named only Metropolitan and certain of its employees. (ECF No. 1). The Complaint was amended with the filing of the First Amended Complaint on April 5, 2012, which again was limited to Metropolitan and certain employees. (ECF No. 14). Following resolution of pre-answer motions, Metropolitan and the named employees filed their Answer on August 1, 2012. (ECF No. 21). An Early Neutral Evaluation with the Court was held on September 10, 2012. (ECF Nos. 27, 28). A Case Management Conference was held on October 30, 2012. (ECF No. 33). On that same day, the Court granted Plaintiffs' unopposed Motion and allowed the filing of the Second Amended Complaint. (ECF Nos. 29, 30). The Federal defendants were added to the case at that time. The Federal defendants have not answered the Complaint, instead moving, on January 29, 2013, to dismiss the Second Amended Complaint as to all Federal defendants on grounds of sovereign and qualified immunity. (ECF No. 48).
Discovery commenced between Plaintiffs and the non-Federal defendants with the exchange of initial disclosures pursuant to Fed.R.Civ.P. 26(a) no later than October 26, 2012. (ECF No. 28 at 1-2). Formal discovery has been open between them at least as of October 30, 2012, if not earlier. (See ECF No. 53 at 1).
The Federal defendants seek to have discovery completely stayed pending the outcome of their motion to dismiss. (ECF No. 52 at 5-6). Alternatively, the Federal defendants seek a stay of discovery only as to them and request leave to re-open depositions taken during the stay period if they remain in the case. (Id. at 6).
The Court agrees with the Federal defendants that, at a minimum, discovery should be stayed as to them. A defendant asserting immunity should be free from all burdens of litigation. See Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009). Although Iqbal involved the assertion of qualified immunity, the Court agrees that the same view should obtain with regard to the assertion of sovereign immunity. See, e.g., Lindhurst v. USA, Social Security Administration, 2012 WL 5381576 *2 (D. Colo. October 31, 2012).
The more challenging question is whether to stay discovery completely or to allow discovery otherwise to proceed. In Iqbal, the Supreme Court stayed discovery for all defendants stating that to do otherwise would not truly relieve the stayed defendants from the burdens of discovery. The Court stated:
It is no answer to these concerns to say that discovery for petitioners can be deferred while pretrial proceedings continue for other defendants. It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, they would not be free from the burdens of discovery.
Ashcroft v. Iqbal, 556 U.S. at 685.
Other courts, although recognizing this statement from Iqbal as dicta, nevertheless have agreed that all discovery should be stayed when any defendant raises an immunity defense. See A.A. v. Martinez, 2012 WL 5974170 *1-2 (D. Colo. October 9, 2012).
The Court is not convinced that an automatic stay of all discovery is required in every case in which a defendant raises a claim of immunity. Rather, the Court should consider the nature of the case and the extent to which proceeding with discovery as to other parties likely would prejudice the stayed defendants, the impact on other parties and the court. Courts are empowered to fashion such protective orders as may be needed to protect ...