UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

KENNETH C. GRIFFIN, 

Plaintiff, 

V. 

INTERNAL REVENUE SERVICE and U.S. 

DEPARTMENT OF THE TREASURY, 

Defendants. 

Case No. 1 :22-cv-24023-Scola/Goodman 

PLAINTIFF'S OPPOSITION TO 

DEFENDANTS' LIMITED MOTION TO STAY DISCOVERY 

Case 1:22-cv-24023-RNS Document 73 Entered on FLSD Docket 12/08/2023 Page 1 of 10
Plaintiff Kenneth C. Griffin ("Mr. Griffin") respectfully submits this opposition to the 

limited motion to stay discovery ("Mot.," ECF 68), filed by Defendants Internal Revenue Service 

("IRS") and the U.S. Department of the Treasury (collectively, the "Government"). 

In this District, motions to stay discovery are "generally denied," and the Government's 

motion is no exception. As an initial matter, a "preliminary peek" at the Government's motion to 

dismiss reveals that it is not the sort of clearly meritorious, case dispositive motion that warrants a 

rare and disfavored stay. Nor has the Government even attempted to establish the required specific 

showing of prejudice or burden required to obtain a stay, other than to self-servingly quantify the 

number of requests served by Mr. Griffin. But unspecified and hypothetical "burdens" do not 

offset the prejudice to Mr. Griffin and disruption to the orderly management of the Court's docket 

that delaying discovery would entail. 

Unable to meet the exacting stay standard, the Government resorts to mischaractcrizing 

Judge Goodman's prior order, writing that "[a]s Magistrate Judge Goodman observed in the 

Administrative Order he issued on November 29, a preliminary peak [sic] at the United States' 

motion to dismiss reveals that it has merit." Mot. at 6. Not so. Judge Goodman actuanv wrote, 

"[t]he Undersigned has taken a preliminary peek at the Government's motion to dismiss [ECF 58] 

and cannot fairly characterize it as frivolous. Nor can the Second Amended Complaint [ECF No. 

55] be labeled as such." ECF 63 at 2 (emphasis added). That the Complaint is not frivolous is 

alone a sufficient basis to deny the motion lo stay. 

The Government also fails to show good cause because its motion is untimely-it arises 

from discovery requests Mr. Griffin served five months ago, in July 2023. Since that time, the 

Government has consistently llouted its discovery obligations, unilaterally imposing its own de 

facto stay of discovery in violation of the discovery rules. In fact, prior to today, the Government 

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had produced only six documents-all or which are publicly available-and has responded lo 

Mr. Griffin's written discovery with nothing more than boilerplate objections and non-substantive 

answers. Now, only after Mr. Griffin expended significant resources to litigate the uncontroversial 

position that the Government is required to comply with its discovery obligations the same as any 

other litigant before this Court, and only after Magistrate Judge Goodman ordered the Government 

to begin to produce documents, has the Govcrmncnt finally moved for a stay-relief that is not 

\varranted here based on the facts or the law. The Government's belated request for this disfavored 

relief should be summarily denied. 

BACKGROUND 

On July 28, 2023, Mr. Griffin served his lirst set or discovery requests on the Government. 

After requesting and receiving an extension of time, the Government responded on September 11, 

2023, but provided only boilerplate objections and non-answers. The Govermncnt refused to 

produce documents on the purported basis that "discovery is reserved only for claims that survive 

a motion to dismiss," asserting that "discovery in this case should not go forward while a 

dispositivc motion is pending." 

Following correspondence and meet and confers in which the Government rerused to 

provide discovery, Mr. Griffin initiated the discovery dispute process before Magistrate Judge 

Goodman, with a hearing scheduled for November 28, 2023. At that hearing, Judge Goodman 

ordered the Government to produce documents regarding Mr. Littlejohn and Booz Allen 

Hamilton's contractual relationship with the IRS no later than December 8, 2023, and to produce 

other documents no later than December 11, 2023. See ECF 63 at 3- 4. Notably, Judge Goodman 

also said: "Let's start off with the critical issue or why haven't you filed a motion for a stay if 

you're not producing discovery based on that theory"- a question that Defendants have not 

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answered to this date. ECF 67 at 7:3-5. Judge Goodman ordered that, if the Government intended 

to move for a stay, it must do so no later than December 1, 2023. ECF 63 at 2. 

ARGUMENT 

I. DISCOVERY STAY MOTIONS ARE DISFAVORED AND GENERALLY DENIED 

"[D]iscovery stay motions are generally denied except where a specific showing of 

prejudice or burdensomeness is made." Cuhaci v. Kouri Grp., LP, 540 F. Supp. 3d 1184, 1186 

(S.D. Fla. 2021) (citation omitted) (denying motion to stay discovery). "[T]he proponent of the 

stay bears the burden of demonstrating its necessity, appropriateness, and reasonableness." Ray v. 

Spirit Airlines, Inc., 2012 WL 5471793, at *1 (S.D. Fla. Nov. 9, 2012) (denying motion to stay 

discovery). "In evaluating whether the moving party has met its burden, a court must balance the 

harm produced by a delay in discovery against the possibility that the dispositive motion will be 

granted and entirely eliminate the need for such discovery." Boccio/one v. Solowsky, 2008 WL 

2906719, at *2 (S.D. Fla. July 24, 2008) (quotation omitted) (denying motion to stay discovery). 

"This entails taking a preliminary peek at the merits of the dispositive motion to see if it appears 

to be clearly meritorious and truly case dispositive." Id. ( citation omitted). 1 

II. THE GOVERNMENT FAILS TO MEET ITS HEAVY BURDEN FOR A STAY OF 

DISCOVERY 

A. The Government's Motion To Dismiss Is Not "Clearly Meritorious" 

A "preliminary peek" at the Government's motion to dismiss reveals that it lacks merit, 

and that it is by no means strong enough to permit the Court to "say that this case is surely destined 

The Government cites Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 

(11th Cir. 1997) as supposedly supporting the proposition that "staying discovery generally is 

prudent when there is a pending 'motion to dismiss' ... that presents a purely legal questions." 

Mot. at 5. That is wrong: Chudasama "confronted a very specific situation" involving 

"exceptional circumstances" and "does not state a general rule that discovery be stayed pending 

resolution of a motion to dismiss." Cuhaci, 540 F. Supp. 3d at 1187. 

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for dismissal," as would be required to justify a stay. Ray, 2012 WL 5471793 at *2. To the 

contrary, the misconceived motion to dismiss should be denied for several reasons. 

First, the motion to dismiss concedes two of Mr. Griffin's three theories of liability, each 

of which is independently sufficient to state a claim under Section 743 l(a)(l ). Mr. Griffin's 

Second Amended Complaint ("SAC") alleges facts establishing that (i) Mr. Littlejohn was an 

"employee of the United States" for purposes of Section 7431(a)(l), see SAC ,r,r 23-24: (ii) IRS 

employees at least negligently disclosed tax return information to Mr. Littlejohn, see id. ,r,r 12, 32, 

34, 56; and (iii) other IRS employees' failure to conform with data security measures led to the 

disclosure of Mr. Griffin's confidential return information, see id. ,r,r 25-34, 35-36, 51-52. Yet 

the Government's motion to dismiss fails entirely to addresses the second two theories. It follows 

that the SAC is destined to proceed on at least two alternative theories of liability. 

Second, as to the single theory it does challenge, the motion to dismiss erroneously invokes 

the Rule 12(b)(l) factual attack standard. Critically, however, "[a] district court only may apply 

Rule 12(b )( 1) 's factual attack standard where the facts necessary to sustain jurisdiction do not 

implicate the merits of plaintiff's cause of action." See Cohan v. Tex. Roadhouse Holdings, 635 

F. Supp. 3d 1341, 1346 (S.D. Fla. 2022) (citation omitted). Here, Section 7431(a)(l)-which 

contains the "officer or employee of the United States" element-"provides the basis for both the 

subject matter jurisdiction of the federal court and [Mr. Griffin's] substantive claim for relief." 

Garciav. Copenhaver, Bell &Assocs., MD. 's, P.A., 104 F.3d 1256, 1262 (11th Cir. 1997) (citation 

omitted). In this circumstance, the motion undertakes a "facial attack," which requires only that 

this Court "look and see if [Mr. Griffin] has sufficiently alleged a basis of subject matter 

jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." 

See id. at 1261 (citation omitted). 

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Third, in addition to applying an erroneous legal standard, the motion to dismiss fails to 

address the applicable test to determine whether Mr. Littlejohn qualifies as an "employee of the 

United States" for purposes of Section 7413(a)(l). The Government points to the term 

"contractor" in its own made-for-litigation criminal filings that were drafted by the United States, 

which are self-serving, inadmissible hearsay. But the Government does not speak specifically to 

whether an individual is an "employee of the United States" for Section 7431(a)(l) purposes, 

which requires consideration of the "control test." This test inquires whether an individual 

(including a "contractor") is an employee of the United States by examining "the power of the 

Federal Government to control the detailed physical performance of the contractor," see, e.g., 

Adelman v. Discover Card Servs., Inc., 915 F. Supp. 1163, 1165 (D. Utah 1996), and involves a 

factual inquiry. Notably, the Government makes no argument that the control test is not satisfied. 

Nor can the Government rely here upon any prospect of partial success, as it attempts to 

do. By the Government's account, if its motion to dismiss "is granted even in part, it could 

significantly alter the scope of discovery." Mot. at 7. Yet a "motion to stay discovery ... is rarely 

appropriate unless resolution of the motion will dispose of the entire case." Cuhaci, 540 

F. Supp. 3d at 1187 ( denying a stay when the court could not conclude whether a dismissal "would 

be of the Complaint in its entirety"). At bottom, even if it were a close call as to whether the SAC 

would survive the motion to dismiss (and it is not), then this Court should deny the Government's 

motion. See Ray, 2012 WL 5471793, at *2 (denying motion to stay where "Spirit advances several 

detailed arguments for dismissal, but Plaintiff also offers several detailed arguments in response"). 

The Government also erroneously contends that a stay is "particularly appropriate" because 

the motion to dismiss raised a sovereign-immunity defense. See Mot. at 5. But the sovereignimmunity defense raised here simply restates the fact-intensive merits question of whether 

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Mr. Littlejohn is an "employee of the United States," and invocation of sovereign immunity does 

not alter the general rule that "[d]iscovery ordinarily should not be stayed when [discovery] is 

necessary to defend against the motion." Flecha v. Neighbors Moving Servs., Inc., 944 F. Supp. 

2d 1201, 1203 (S.D. Fla. 2013) (emphasis added). The single authority cited by the Government 

confirms as much; there, unlike here, the motion to dismiss "present[ ed] purely legal issues that 

d[id] not require factual investigation." Cookv. Taylor, 2019 WL 1233853, at *1 (M.D. Ala. Mar. 

15, 2019). In any event, courts in the Eleventh Circuit regularly deny motions to stay even when 

movants invoke sovereign-immunity defenses. See, e.g., LaFleur v. State Univ. Sys. of Fla., 2020 

WL 7137993, at *1 (M.D. Fla. Dec. 7, 2020) (denying motion to stay even though defendants' 

motion "raise[d] potentially case-dispositive threshold legal issues, including sovereign 

immunity");McMahon v. Presidential Airways, Inc., 2009 WL 10705558, at *15 (M.D. Fla. Jan. 8, 

2009) (denying stay despite defendants' motion to dismiss on sovereign immunity grounds). 

B. The Government Fails to Show Prejudice Or Undue Burden 

Even if the motion to dismiss were strong (and it is weak), the Court should still deny the 

motion to stay because the Government has failed to even attempt to make the required "specific 

showing of prejudice or burdensomeness." Cuhaci, 540 F. Supp. 3d at 1187 ( citation omitted). 

Courts routinely deny motions to stay, like this one, that fail to make a showing of burden or undue 

prejudice. See, e.g., Reilly v. Amy's Kitchen, Inc., 2013 WL 3929709, at *1 (S.D. Fla. July 31, 

2013) (denying motion to stay where defendant "failed to make the requisite showing of prejudice 

or burdensomeness for the Court to issue a stay of discovery"); Ray, 2012 WL 5471793, at *3 

( denying stay when movant "has not identified in any specific and tangible way the unreasonable 

discovery burdens it will face absent a stay"); Flecha, 944 F. Supp. 2d at 1203 ( denying motion to 

stay when "Defendant has not asserted that the propounded discovery is unusually burdensome"). 

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Case 1:22-cv-24023-RNS Document 73 Entered on FLSD Docket 12/08/2023 Page 7 of 10
ITT. A STAY WILL IMPROPERLY REWARD THE GOVER~ME~T'S STALL 

TACTICS A~D CAUSE CASE MANAGEMENT PROBLEMS 

Courts have a duty to "construe the Federal Rules or Civil Procedure 'to secure the just, 

speedy, and inexpensive determination of every action and proceeding.'" Thompson v. Ryder Sys., 

inc., 2022 WL 18776115, at *2 (S.D. Fla. Sept. 7, 2022) (quoting Fed. R. Civ. P. 1). It bears 

emphasizing that Mr. Griffin propounded the discovery requests jive months ago. Rather than 

seek a stay at that point, the Government exhausted all other strategies for delaying compliance 

with its discovery obligations, ultimately leaving Mr. Griffin with no choice but to seek relief from 

Judge Goodman. Only arter Mr. Griflin expended significant costs to litigate the uncontroversial 

position that the Government is required to comply with its discovery obligations, and only after 

Judge Goodman ordered the Government to produce discovery, did the Govermnent first seek a 

stay. The Court should not condone or reward this approach. 

The Government's requested stay will prejudice Mr. Griffin-it will delay the orderly 

progression of this case and require him to expend even more costs to obtain the discovery to 

which he is entitled. Pataro v. Castellon, 2023 WL 4014740, at *2 (S.D. Fla. May 1 l, 2023) ("ff 

the Defendants' Motion to Dismiss the SAC is not successful, reopening discovery at that point 

would result in further delaying the resolution of the case."). Mr. Griffin has already filed an 

unopposed motion for extension of the discovery deadlines in the scheduling order, and a stay will 

entail further extensions and delay, creating practical problems that "militate against a discovery 

stay." Montoya v. PNC Bank, 2014 WL 2807617, at *3 (S.D. Fla. June 20, 2014) ("lt is therefore 

difficult to imagine how the parties could ever complete all discovery by either deadline i r a 

discovery stay \Vere to remain in effect for two or three months."). No stay is \Varranted. 

CONCLUSION 

For the foregoing reasons, the Government's motion should be denied. 

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Case 1:22-cv-24023-RNS Document 73 Entered on FLSD Docket 12/08/2023 Page 8 of 10
Dated: December 8, 2023 Respectfully submitted, 

By: /s/ Jason D. Sternberg 

William A. Burck (pro hac vice) 

Derek L. Shaffer (pro hac vice) 

Alexander J. Merton (pro hac vice) 

QUINN EMANUEL URQUHART & SULLIVAN LLP 

1300 I Street, N.W., Suite 900 

Washington, DC 20005 

(202) 538-8334 

williamburck@quinnemanuel.com 

derekshaffer@quinnemanuel.com 

ajmerton@quinnemanuel.com 

John F. Bash (pro hac vice) 

QUINN EMANUEL URQUHART & SULLIVAN LLP 

300 West 6th St, Suite 2010 

Austin, TX 78701 

(737) 667-6100 

j ohnbash@quinnemanuel.com 

Jason D. Sternberg (Florida Bar No. 72887) 

QUINN EMANUEL URQUHART & SULLIVAN LLP 

2601 South Bayshore Dr, Suite 1550 

Miami, FL 33133 

(305) 402-4880 

j asonstemberg@quinnemanuel.com 

Christopher D. Kercher (pro hac vice) 

Peter H. Fountain (pro hac vice) 

QUINN EMANUEL URQUHART & SULLIVAN LLP 

51 Madison Avenue, 22nd Floor, 

New York, New York 10010 

(212) 849-7000 

christopherkercher@quinnemanuel.com 

peterfountain@quinnemanuel.com 

Counsel to Plaintiff Kenneth C. Griffin 

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Case 1:22-cv-24023-RNS Document 73 Entered on FLSD Docket 12/08/2023 Page 9 of 10
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that, on this 8th day of December, 2023, I caused a copy of the 

foregoing document to be filed with the Clerk of Court using the CM/ECF electronic filing system, 

which will send notification to all counsel of record. 

By: Jason D. Sternberg 

Jason D. Sternberg 

Fla. Bar No. 72887 

j asonstemberg@quinnemanuel.com 

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