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McNamee v. Clemens

United States District Court, E.D. New York

April 28, 2014

BRIAN G. McNAMEE, Plaintiff,
v.
ROGER CLEMENS, Defendant.

EMERY CELLI BRINCKERHOFF & ABADY LLP Richard D. Emery Earl Ward Debra L. Greenberger Attorneys for Plaintiff.

RUSTY HARDIN & ASSOCIATES, LLP Rusty Hardin Joe Roden Jeremy T. Monthy Attorneys for Defendant.

MEMORANDUM AND ORDER

STERLING JOHNSON, Jr., District Judge.

On April 21, 2014, Defendant Roger Clemens ("Defendant" or "Clemens") filed a renewed motion ("Motion") for a stay of this Court's April 2, 2014 Order pending a decision from the Second Circuit Court of Appeals on a Petition for Writ of Mandamus. Plaintiff Brian G. McNamee ("Plaintiff" or "McNamee") renewed his opposition to the motion on April 22, 2014.

The Court has reviewed the parties' submissions and, for the following reasons, Defendant's Motion is DENIED.

I. BACKGROUND

We assume the parties' familiarity with the underlying facts and procedural history of the case. Therefore, the Court will only address the facts as they relate to the instant Motion. On February 7, 2014, Clemens filed a Rule 72(a) Motion to Modify or Set Aside and Stay two discovery orders issued by Magistrate Judge Cheryl L. Pollak directing him to provide certain discovery to McNamee. The Court denied Defendant's Rule 72(a) Motion on April 2, 2014. On April 8, 2014, the Defendant filed a premature Motion to Stay the Court's April 2 Order pending a decision from the Second Circuit on a forthcoming Petition for Writ of Mandamus ("Petition"). McNamee opposed the motion on April 9, 2014. On April 18, 2014, this Court denied the motion with leave to renew upon proof of filing the Petition with the Second Circuit. Clemens submitted proof of filing on April 21, 2014. Thereafter, Defendant renewed his motion and Plaintiff renewed his opposition.

II. DISCUSSION

A. Standard of Review

The Court analyzes motions for a stay pending appeal pursuant to Rule 62 of the Federal Rules of Civil Procedure ("Rule 62"). See Fed.R.Civ.P. 62. Pursuant to Rule 62, issuance of a stay is discretionary with the court, requiring the balancing of four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

B. Defendant's Petition Cannot Succeed on the Merits

More specifically, "the writ [of mandamus] is appropriate to review discovery orders that potentially invade a privilege where: (A) the petition raises an important issue of first impression; (B) the privilege will be lost if review must await final judgment; and (C) immediate resolution will avoid the development of discovery practices or doctrine that undermine the privilege. In re County of Erie, 473 F.3d 413, 416-17 (2d Cir. 2007) (quoting Chase Manhattan Bank, N.A. v. Turner & Newall PLC, 964 F.2d 159, 163 (2d Cir. 1992) and In re Long Island Lighting Co., 129 F.3d 268, 270 (2d Cir. 1997)).

Clemens claims that three issues of "importance and of first impression" are implicated by the Court's April 2 Order. However, Clemens does not claim that any particular argument is either "important" or "of first impression, " much less both. He cannot succeed on the merits of a mandamus action without such a showing.[1] See, e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 112 (2009) ("[M]andamus... facilitate[s] immediate review of some of the more consequential attorney-client privilege rulings.") (emphasis added).

He also makes a single mention of the third element, and does so in a casual fashion, claiming that without the writ, "discovery practices or doctrine undermining the privilege" in that parties would "issu[e] voluminous requests for core work product in hopes that counsel will run out of time before the 30-day deadline for discovery responses to prepare a log covering each and every email." (Mot. to Stay at 3.) This speculative concern assumes that extensions of time cannot be obtained by a party burdened with producing ...


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