Linked here is the Legal Memorandum filed on February 21, 2011, by the defendants in NDLON v. ICE. The United States claims that it will be irreparably damaged if required to follow Judge Scheindlin’s prior order of February 7, 2011. See New Opinion by Judge Scheindlin on FOIA, Metadata and Cooperation. This opinion required the production of standard metadata fields. The government has also filed a notice of appeal of Judge Scheindlin’s order.
An interlocatory appeal to the Circuit Court on a discovery issue is always a long shot. Appeals courts usually do not accept appeals of non-final discovery orders. The appellant has to show irrepairable harm. Still, this is an unusual case as production of documents goes to the merits of the case itself.
The argument in the government’s linked memorandum is focused on why Judge Scheindlin should stay her own order pending the outcome of the appeal. Alternatively, the government defendants asks for a stay pending the Second Circuit’s ruling on a motion for stay.
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Source: e-discoveryteam.com
By: Ralph Losey
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