number of documents they claim relate to the plaintiff's 1996 permit application, including the parade sponsor's permit application and permit for the Parade issued to that sponsor, and the relevant portions of the Police Administration Guide on parade permits.
In sum, the plaintiff's discovery request is a broadside not reasonably tailored to the time constraints under which both parties must proceed or to the specific issues that will have to be determined at the preliminary injunction hearing. The scope of the requested documents, in some cases going back over ten years, does not correspond to the plaintiff's allegations with respect to this year's permit denial or its claimed need for expeditious relief. Insofar as the documents are requested in support of the plaintiff's assertion that the permitting scheme is unconstitutional, that alleged relationship does not justify expedited discovery under the time constraints presented here--circumstances largely of the plaintiff's making. The plaintiff's claim that the permitting scheme is unconstitutional does not depend on the denial of this year's permit application. Indeed, when this action was filed the plaintiff was not aware its application had been denied. The claim could have been brought in October 1995 when ILGO submitted its permit application to the defendants. The plaintiff contends, in fact, that a sizeable portion of the documents sought are subject to Freedom of Information Act requests. Such requests could have been made at any time prior to the filing of this action.
Moreover, the defendants have raised substantial questions about the need for discovery in this matter at all in light of the similarities of this action to the facts of the case before Judge Keenan in 1995 and the disposition of that case. The defendants suggest that whatever factual differences there may be, the plaintiff's claims relating solely to the 1996 Parade do not require discovery relating to prior years or other parades. The plaintiff does not seriously dispute the similarities between the factual circumstances of this year's Parade with the 1995 parade, and instead argues that the discovery needed relates principally to its claim that the permitting scheme is unconstitutional. But that relationship is not a basis for expediting discovery of the kind requested here in view of the fact that the plaintiff could have pursued that discovery for months, without waiting until less than three weeks before the Parade.
Additionally, the irreparable injury the plaintiff argues it may suffer if not granted relief is now only two weeks off. Before that time, both parties will require time to brief fully the matters at issue in this case, and prepare for and conduct a hearing before this Court on the preliminary injunction, and possibly pursue an appeal. It will be a formidable task for both parties to litigate these issues in the time remaining, and it is unfair for the defendants to be saddled with the added burden of voluminous document discovery during that same time.
Finally, both sides will have a full opportunity to explore the issues involved in this request for a preliminary injunction at an evidentiary hearing. The papers and the hearing are more than adequate to allow both sides to explore the issues in this case and test the positions proffered by the opposing side.
Accordingly, I find there is not a sufficient connection between the requested discovery and the avoidance of the claimed irreparable injury. I further find that there is no evidence that the injury that will result without expedited discovery looms greater than the injury that the defendants will suffer if the expedited relief is granted. Because the plaintiff has failed to satisfy either the third or fourth prong of the Notaro requirements, I need not reach the issue of whether the plaintiff has demonstrated some probability of success on the merits, an issue which will be decided in the context of a decision on the preliminary injunction motion.
In its reply papers, the plaintiff suggests that there are three witnesses it seeks to depose: Chief Louis R. Anemone, Lieutenant Cirillo, and Officer Lebron of the New York Police Department. No expedited depositions were requested initially and the defendants have not had the opportunity to respond to this request. Reply papers are not the proper place for new arguments or requests for relief. In any event, there is no basis for expedited depositions for the same reasons already set forth above. The plaintiff is entitled to subpoena these witnesses for the hearing on the merits.
4. The following schedule is ordered with respect to the preliminary injunction:
a. The defendants shall serve papers in opposition to the preliminary injunction by March 8, 1996 at 10:00 a.m.
b. The plaintiff shall serve papers in reply, if any, by March 9, 1996 at 5:00 p.m.