Tamburo v. Dworkin, 2010 WL 4867346 (N.D. Ill. Nov. 17, 2010)

Facts: After the Seventh Circuit affirmed the dismissal of most of Plaintiff’s sixth amended complaint, Defendant brought a Rule 12(b)(6) motion to dismiss the surviving claims in Plaintiff’s seventh amended complaint. Defendant moved to stay discovery during the pendency of the motion to dismiss.

Law: A stay of discovery is generally appropriate only if there is a challenge to a potentially dispositive threshold issue, such as standing. A “garden variety” 12(b)(6) motion to dismiss for failure to state a claim generally does not warrant a stay of discovery. However, the court does have discretion to limit discovery and may do so under Rule 26’s proportionality test.

Holding: The court entered a phased discovery under Rule 26. In the first phase, the parties could only serve discovery on named parties. Non-party discovery was postponed until this phase was exhausted. The court also stressed the need to complete 26(a)(1) initial disclosures, to focus on issues that may go forward, and prioritize and minimize costs.

For Clients: The Northern District has recently shown a willingness to enter a phased discovery plan in certain situations — in particular, when the Plaintiff has unsuccessfully brought a number of complaints. In such situations, attorneys may consider requesting a phased discovery plan to save clients’ time and expense.

Access the full Tamburo opinion here.