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Defendant’s Opposed Motion for Protective Order

1:20-cv-00298-LY

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DR. JEROME CORSI and LARRY 

KLAYMAN,

Plaintiffs,

vs.

INFOWARS, LLC, FREE SPEECH 

SYSTEMS, LLC, ALEX E. JONES, DAVID 

JONES, and OWEN SHROYER,

Defendants.

Civil Action No. 1:20-cv-00298-LY

DEFENDANTS’ OPPOSED MOTION 

FOR PROTECTIVE ORDER

Defendants Infowars, LLC (“Infowars”), Alex E. Jones (“Alex Jones”), Free Speech Systems, 

LLC (“FSS”), and Owen Shroyer (“Shroyer”) (collectively, the “Moving Defendants”) file this Motion 

for Protective Order in relation to Plaintiffs’ attempts to take the depositions of Defendants Jones 

and Shroyer. See Dkt. Nos. 92, 92-1, and 92-2. The notices are improper, and the Court should issue 

a protective order staying all discovery and not allow the depositions to proceed. 

1.0 Introduction and Factual Background

Every defendant has a motion to dismiss that is fully briefed and awaiting adjudication. The 

parties have not had their Rule 26(f) conference and no discovery has been exchanged. And, yet, 

Plaintiffs now are attempting to take three depositions before the close of the current fact discovery 

deadline for purposes unrelated to this litigation. See Scheduling Order, Dkt. No. 46; Dkt. Nos. 55, 

57, 58, and 59. 

This is one of a number of nearly identical cases brought by Plaintiffs Jerome Corsi and Larry 

Klayman in a vexatious campaign against Roger Stone. In their quest to punish Stone for some 

perceived slight, they have sued anyone who so much as stood near Roger Stone. As set forth in the 

pending motions to dismiss, none of the speech at issue in this case constitutes actionable defamation, 

nor may it be repurposed to fit any other tort theory, including intentional infliction of emotional 
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Defendant’s Opposed Motion for Protective Order

1:20-cv-00298-LY

distress and assault. The speech is not commercial speech under the Lanham Act and neither is it 

unfair competition. 

Plaintiffs filed this action nearly two years ago seeking to harass the Moving Defendants for 

their association with Defendant Stone. Defendants moved to dismiss this action, but their motions 

remain pending. See Dkt. Nos. 55, 57, 58, and 59. Defendants have been waiting for their arguments 

on the merits to be adjudicated for nearly two years, delayed by transfer of venue and by an 

amendment that added nothing of substance. The noticed depositions should not be allowed to 

proceed, and this Court should grant Moving Defendants a protective order preventing the 

depositions from proceeding and otherwise revise the schedule should some portion of the matter 

survive the pending dispositive motions. 

2.0 Legal Standard

Federal Rule of Civil Procedure 26(c) grants a court authority to impose a protective order in 

a case on a showing of good cause “to protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense.” In determining whether a stay is proper, a court “must 

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

granted and entirely eliminate the need for such discovery.” Bickford v. Boerne Indep. Sch. Dist., No. 5:15-

CV-1146-DAE, 2016 U.S. Dist. LEXIS 47561, at *3 (W.D. Tex. Apr. 8, 2016). Rule 16 otherwise 

grants the Court control over its own schedule.

3.0 Legal Argument

3.1 No 26(f) Conference Has Been Held

The deposition notices are improper because they are premature. Federal Rule of Civil 

Procedure 26(d) states that “[a] party may not seek discovery from any source before the parties have 

conferred as required by Rule 26(f).” Despite the fact that this case was initially filed nearly two years 

ago, Plaintiffs have not attempted to confer pursuant to Fed. R. Civ. P. 26(f), nor have the parties 

participated in such a conference. Neither have the parties have exchanged initial disclosures under 

Rule 26(a). 
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Defendant’s Opposed Motion for Protective Order

1:20-cv-00298-LY

Plaintiffs are aware of this fact. They served discovery requests on September 29, 2020 to the 

Defendants, who responded with objections noting that a Rule 26(f) conference had not yet taken 

place. Plaintiffs did not seek to compel responses from the defendants because, simply, they knew 

that the defendants were correct. Rather than curing the defect and attempting to hold a Rule 26(f) 

conference, Plaintiffs ignored the issue and waited until the last minute to serve defective deposition 

notices. Plaintiffs are aware that they could have sought to have the discovery deadline extended, but 

instead they simply wish to harass the defendants by imposing depositions on them without allowing 

the other parties to engage in any substantive discovery. 

3.2 Defendants’ Motions to Dismiss are Likely to Succeed

Moving Defendants filed motions to dismiss in this matter and those motions are still pending. 

See Dkt. Nos. 55, 58, and 59. Defendants are likely to succeed on these motions and depositions

should not be taken until after those motions are adjudicated. 

A stay of discovery, including the noticed depositions, is appropriate. “A trial court has broad 

discretion and inherent power to stay discovery until preliminary questions that may dispose of the 

case are determined.” Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987). Texas courts have 

characterized depositions as “intrusive, expensive, and time-consuming” for any witness. In re Hewlett 

Packard, 212 S.W.3d 356, 362 (Tex. App.—Austin 2006, orig. proceeding). 

Defendants’ pending motions to dismiss are likely to succeed. Plaintiffs’ complaint alleges six 

causes of action against the defendants: Defamation, Defamation Per Se, Defamation by Implication, 

Intentional Infliction of Emotional Distress, Assault, and Unfair Competition. See Amended 

Complaint, Dkt. No. 47. The statements at issue in Plaintiffs’ Amended Complaint are non-actionable 

opinion or rhetorical hyperbole and do not state a claim for relief. For the purposes of this Motion, 

Moving Defendants’ motions to dismiss are incorporated herein by reference. 

Even while Moving Defendants’ motions to dismiss have been pending, Plaintiff Corsi, 

represented by Plaintiff Klayman, has again lost a case in another court on his attenuated theory of 

defamation by association. See Order Granting Defendants’ Motion to Dismiss, Jerome Corsi v. 

Newsmax Media, Inc., et al., Case No. 20-CV-81396-RAR (S.D. Fla. Feb. 12, 2021), attached as 
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Defendant’s Opposed Motion for Protective Order

1:20-cv-00298-LY

Exhibit 1. In that case, as here, Corsi filed a defamation action against hosts of televised program for 

the content of a third-party’s speech. The court in the Newsmax action dismissed Corsi’s claims against 

the news organization and the hosts, finding that the statements by a third party in their presence was 

not sufficient to sustain a defamation claim. Here, claims are even made where defendants were not 

present. Thus, as there is a strong likelihood of success on the pending dispositive motions, a stay is 

warranted until the proper scope of discovery, if any, can be determined.

This Court has previously stayed discovery in matters where a dispositive motion on the 

pleadings was pending.1 See, e.g., Kira v. All Star Maintenance, Case No. 1:03-cv-00950-LY (W.D. Tex. 

Dec. 3, 2004). The Fifth Circuit Court of Appeals has held repeatedly that district courts properly 

acted properly in entering stays of discovery while motions to dismiss were pending in a case. See, e.g., 

Dolenz v. Akin, 129 F.3d 612 (5th Cir. 1997). A stay is especially proper where, as here, “the issues to 

be examined in the motion to dismiss for lack of jurisdiction ... [are] largely legal rather than factual 

in nature.” Smith v. Potter, 400 Fed. Appx. 806, 813 (5th Cir. 2010). At the time Defendants agreed to 

the schedule, they did not know their then-pending motion to dismiss would be deemed mooted by 

the filing of a nearly identical amended complaint or that, at the time discovery was to close, motions 

to dismiss would still be pending. As the pending dispositive motions may not be adjudicated without 

sufficient time before the deadline expires, discovery will close before the parties know whether any 

of Plaintiff’s claims can proceed and, if so, before Defendants will have even answered the amended 

complaint. 

1 Although the Scheduling Order disfavors modifying the trial date, all civil and criminal jury 

trials from March 13, 2020 through March 31, 2021 have been continued. See, e.g. Thirteenth 

Supplemental Order Regarding Court Operations under the Exigent Circumstances Created by the 

COVID-19 Pandemic (W.D. Tex. Feb. 2, 2021); Order Regarding Court Operations under the Exigent 

Circumstances Created by the COVID-19 Pandemic (W.D. Tex. Mar. 13, 2020). Simply put, even if 

jury trials resumed April 1, 2021, which is unlikely, the >1 year backlog of criminal jury trials, with 

defendants otherwise constitutionally entitled to a speedy trial, renders it doubtful a jury trial in this 

matter could be held in August 2021, let alone before the end of this calendar year.
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Defendant’s Opposed Motion for Protective Order

1:20-cv-00298-LY

3.3 The Notices are Defective

The deposition notices are otherwise objectionable and depositions cannot proceed as noticed. 

Federal Rule of Civil Procedure 30 controls how depositions may be taken in a civil lawsuit. Fed. R. 

Civ. P. 30(b)(1) requires that a deposition notice “must state the time and place of the deposition and, 

if known, the deponent’s name and address.” The Local Rules of this Court further require that “[a] 

notice for a deposition shall be in the form prescribed in Federal Rule of Civil Procedure 30, and in 

addition shall state the identity of persons who will attend other than the witness, parties, spouses of 

parties, counsel, employees of counsel, and the officer taking the deposition.” See Rule CV-30. 

The notices fail to identify the identities of any other person who will attend the depositions 

aside from the deponent and fail for that reason as well. Notably, as addressed in Defendant Stone’s 

motion (Doc. No. 93), these depositions are likely to be used by Plaintiff Klayman as a fundraising 

mechanism. This is not a proper purpose for depositions and essentially invites the world at large to 

appear and attend, in violation of the local rule requiring advance notice of identity. The notices 

served by the Plaintiffs do not conform with either Fed. R. Civ. P. 30(b)(1) or Local Rule CV-30 and 

are defective. 

4.0 Conclusion

Plaintiffs’ late-served notice of taking deposition are improper, and the Court should not allow 

the depositions to proceed while Moving Defendants’ motions to dismiss are still pending. Counsel 

for the parties have conferred in a good-faith attempt to resolve the matter by agreement and no 

agreement could be made because Plaintiffs object to the relief requested herein. 

WHEREFORE, Defendants respectfully request this Honorable Court issue a protective 

order staying the depositions and discovery pending the outcome of the motions to dismiss and to

reset the scheduling order deadlines as necessary thereafter.
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Defendant’s Opposed Motion for Protective Order

1:20-cv-00298-LY

Dated: February 17, 2021.

Respectfully submitted,

/s/ Marc J. Randazza

Marc J. Randazza (pro hac vice)

Jay M. Wolman (pro hac vice)

RANDAZZA LEGAL GROUP, PLLC

2764 Lake Sahara Drive, Suite 109

Las Vegas, NV 89117

Telephone: 702-420-2001

ecf@randazza.com

Bradley J. Reeves (TX Bar No. 24068266)

REEVES LAW, PLLC

702 Rio Grande Street, Suite 306

Austin, TX 78701

Telephone: 512-827-2246

brad@brtx.law

Attorneys for Defendants

Infowars, LLC; Free Speech Systems, 

LLC; Alex E. Jones; and Owen Shroyer
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Defendant’s Opposed Motion for Protective Order

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Civil Action No. 1:20-cv-00298-LY

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above document was filed and served upon 

all parties of record on February 17, 2021 by CM/ECF, the court’s electronic filing system.

/s/ Marc J. Randazza

Marc J. Randazza