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‘Plainly Warranted’

NetChoice Urges Discovery Stay in Its Challenge of Ark. Social Media Law

U.S. District Judge Timothy Brooks for Arkansas in Fayetteville should vacate his Nov. 21 deadline for initial disclosures in NetChoice’s constitutional challenge to SB-396, the Arkansas age-verification Social Media Safety Act, and stay discovery in the case, pending resolution of NetChoice’s forthcoming dispositive motion, said NetChoice’s brief Friday (docket 5:23-cv-05105) in support of its motion to stay.

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NetChoice thinks the discovery stay would conserve judicial resources, it said in a joint Rule 26(f) report Oct. 23 (see 2310240010). Arkansas Attorney General Tim Griffin (R) has no objections to providing initial disclosures but disagrees that the case is appropriate for a stay of all discovery or for immediate resolution, said Griffin’s position statement in that joint report. The judge’s Aug. 31 order granted NetChoice’s motion for a preliminary injunction to block Griffin’s enforcement of SB-396 (see 2309010024).

A discovery stay is “plainly warranted” because NetChoice’s challenge to SB-396's constitutionality “turns on pure questions of law that can (and should) be resolved based on widely known facts that are not genuinely disputed,” said NetChoice’s brief. NetChoice intends to file its dispositive motion in advance of the scheduled Nov. 30 case management conference, it said. “For the reasons explained” in the judge’s preliminary injunction order, “that motion is overwhelmingly likely to succeed,” it said.

All four factors” that courts “typically consider” in determining whether to stay discovery “weigh in favor” of granting NetChoice’s requested stay, said the brief. The court has already held that NetChoice is likely to succeed on the merits of its claims that SB-396 “is unconstitutionally vague and violates the First Amendment,” it said. Denying a stay would subject NetChoice and its members “to burdensome, speech-chilling discovery,” plus the expense of potential motions practice “regarding the propriety of the discovery directed at NetChoice members,” it said.

Staying discovery, by contrast, “for the modest period it will take to resolve a dispositive motion” involving legal issues the court has already addressed in its 50-page preliminary injunction decision won’t prejudice Arkansas or AG Griffin, said the NetChoice brief. It noted that the state hasn’t expressed “any urgency” to enforce SB-396.

Granting the stay would also conserve judicial resources “by obviating any need” for the court to preside over discovery disputes, said the NetChoice brief. The court should therefore grant NetChoice’s motion to stay, in accordance with the “well settled” rule that discovery is generally considered inappropriate while a motion that would be thoroughly dispositive of the claims in the complaint is pending, it said.

Arkansas won’t be harmed “by the relatively brief stay of discovery NetChoice seeks,” said the NetChoice brief. The state hasn’t expressed “any urgency to obtain discovery from NetChoice, or even specified what types of discovery it plans to seek,” it said.

That’s “unsurprising,” because there are no facts that could “alter” the court’s conclusions that SB-396, “on its face,” is unconstitutionally vague and isn’t “narrowly tailored” to promote the state’s “asserted interest in protecting minors from harm,” said the brief. Nor has the state expressed any urgency to enforce SB-396, as it didn’t even appeal the court’s preliminary injunction order, it said. “In any event, this case presents none of the circumstances in which a stay might prejudice a nonmovant,” it said.