The Court, being duly advised in the premises, upon all of the files, records, and proceedings herein, and for the reasons stated on the record and described in the Memorandum below, now makes and enters the following Order:

IT IS HEREBY ORDERED:

Defendants' Motion to Stay Discovery [Docket No. 102] is GRANTED in part and DENIED in part as follows.

1. On or before March 2, 2016, defendants must:

2. Defendants must timely respond to future discovery directed to them by plaintiffs.

3. Defendants' response to Document Requests Nos. 10 and 11 of Plaintiffs' Third Set of Document Requests is stayed pending the District Court's ruling on defendants' objections to this Court's Order dated December 18, 2015. See Docket Nos. 85, 87.

4. If the District Court overrules any or all of defendants' objections to the December 18, 2015 Order, the Court will issue an order addressing the date by which defendants must respond to Document Request Nos. 1-4, 10 and 11.

4. Plaintiffs' oral request to require defendants to gather and prepare documents for production in response to stayed discovery is DENIED.

5. Plaintiffs' oral request to shorten the time for the filing of objections to this Order is DENIED.

6. Plaintiff's Motion to Compel [Docket No. 110] is denied as MOOT as a result of this Order. Plaintiffs are not precluded from filing and serving a renewed motion to compel if they have a good faith basis to bring such a motion after reviewing this Order.

This Court described the factual background of plaintiffs' lawsuit in its Order dated December 18, 2015, and will not repeat it here. See Order [Docket No. 85]. The following procedural history is relevant for the purposes of the instant motion. This suit commenced in New Jersey state court on November 25, 2014, was removed to the Federal District Court in New Jersey and then transferred to Minnesota in September, 2015. See Docket Nos. 1, 43. Plaintiffs originally served discovery on defendants when the suit was pending in New Jersey, but the parties disagreed on whether that discovery was ever ruled on or was the subject of a motion, until plaintiffs brought a Motion to Compel Responses to Previously Served Discovery to this Court in December, 2015. Plaintiffs ultimately withdrew their request to have this Court order defendants Allnurses.com, Inc. and David R. Smits as Personal Representative of the Estate of Brian Short (collectively “Allnurses”) to respond to the discovery that they had served in the New Jersey action, and asked the Court to allow them to re-reserve the same, or virtually the same, discovery and require Allnurses to provide expedited answers. Order, p. 8.

*2 This Court granted plaintiffs' motion in part and allowed plaintiffs to serve their First Request for Production of Documents, Nos. 1-9, and directed that Document Requests Nos. 1-4 be answered on an expedited basis. Id., p. 2. These latter requests sought information that could ultimately lead to the discovery of the identities of the John Doe defendants. This Court concluded that the risk that the information sought by plaintiffs through these requests about the identity of the John Doe defendants would be destroyed by the internet service providers and online service providers was too great, and granted expedited discovery as to these requests. The Court required Allnurses to answer Document Request Nos. 5-9 pursuant to Rule 34 of the Federal Rules of Civil Procedure. Id. Plaintiffs served their renewed discovery on December 18, 2015, and Allnurses' responses were due on January 19, 2015. Declaration of Richard Ravin in Opposition to Motion (“Ravin Decl.”), ¶¶ 4, 5. [Docket No. 108]. In the interim, pursuant to L.R. 72.2, Allnurses timely filed objections to this Court's Order on January 4, 2016. Defendants' Appeal/Objection to December 18, 2015, Order [Docket No. 87]. Allnurses objected to the Order as it related to Document Requests Nos. 1-4. Id., p. 1. On January 6, 2016, plaintiffs contacted this Court seeking an expedited hearing and briefing schedule for them to file a motion to compel Allnurses to comply with this Court's December 18, 2015 Order, despite the fact that Allnurses' objections were pending before the District Court. Order dated January 6, 2016 [Docket No. 88]. This Court denied that request and stayed its December 18, 2015 Order until the District Court ruled on Allnurses' objections. Id.

On January 12, 2016, this Court issued an Order regarding a dispute between the parties bearing on the scope of a protocol governing the preservation, search and discovery of electronically stored information (“ESI”) maintained by the parties. [Docket No. 90]. This Order required plaintiffs to provide Allnurses a written list of questions seeking information regarding the IT Architecture for the ESI maintained by Allnurses.com. Id., ¶ 1. Allnurses was required to respond to these questions in writing, or orally via phone conference on or before February 1, 2016. Id., ¶ 2. Plaintiffs sent their questions to Allnurses on January 22, 2016. Ravin Decl., Ex. C. On the day their answers were due, Allnurses' counsel wrote to plaintiffs' counsel stating that Allnurses would not answer these questions, in light of Allnurses' pending motion to stay discovery. Id., Ex. D.

On January 19, 2016, Allnurses filed a Motion to Dismiss seeking to dismiss the Second Amended Complaint in its entirety. [Docket No. 92].

On January 20, 2016, plaintiffs served their Third Requests for the Production of Documents, containing Document Requests Nos. 10 and 11. Ravin Decl., Ex. B.

Document Request No. 10 sought:

Document Request No. 11 sought the same information, but did not limit the request to the five most recent internet sessions. Id. On January 26, 2016, a week after their responses to Document Requests Nos. 5-9 were due, Allnurses filed the instant motion to stay all discovery.

Allnurses did not provide their Rule 26(a) Initial Disclosures, which were due on January 29, 2016, pursuant to this Court's Pretrial Scheduling Order. [Docket No. 85]. Ravin Decl., ¶ 11. In fact, to date, Allnurses has not produced any discovery. Id., ¶ 12.

In sum, the discovery currently at issue is Allnurses' Rule 26(a) disclosures, Allnurses' responses to plaintiffs' Second Set of Document Requests, Document Request Nos. 5-9, Allnurses' responses to plaintiffs' Third Set of Document Requests, Document Request Nos. 10-11, and answers to plaintiffs' informal ESI questions. In addition, at issue is whether plaintiffs can conduct any discovery while Allnurses' Motion to Dismiss is pending.

In their instant motion, Allnurses contended that their pending motion to dismiss could result in total dismissal of the lawsuit against them with prejudice, rendering plaintiffs' discovery unnecessary. Defendants' Memorandum in Support of Motion, p. 1 [Docket No. 104]. Allnurses believes that plaintiffs' claims are barred by immunity principles of the Communications Decency Act (“CDA”), 47 U.S.C. § 230. Id., pp. 3-4. Alternatively, Allnurses claimed that the District Court's resolution of its Motion to Dismiss may narrow the remaining issues and obviate the need for some of the discovery. Id., p. 4. Allnurses further submitted that a stay would not prejudice plaintiffs, but would impose significant economic harm on Allnurses, subjecting it to “extraordinary costs and counsel fees.” Id., pp. 5-6. Lastly, Allnurses argued that the length of the stay would not be excessive, as Allnurses only sought to stay discovery until their motion to dismiss was resolved. Id., p. 6.

*3 Plaintiffs opposed the motion and filed their own motion to compel the same discovery. Plaintiffs' Memorandum in Opposition (“Pls.' Mem.”), pp. 3-20 [Docket No. 107]; Plaintiffs' Motion to Compel Discovery [Docket No. 110]. Plaintiffs contended that Allnurses failed to establish good cause to stay discovery and rejected Allnurses' contention that they will not be prejudiced if a stay is granted, noting that the case was already a year old and no discovery had yet been produced. Pls.' Mem., pp. 4-5. Plaintiffs argued that there was a real risk that the information sought about the John Does would be lost through the passage of time. Id., p. 5; Ravin Decl., ¶ 21. Moreover, even assuming that Allnurses prevailed on its Motion to Dismiss based on the CDA, which plaintiffs submitted it will not, the lawsuit would still proceed against the John Doe defendants and in response to any subpoenas plaintiffs might serve, Allnurses would still be required to provide the discovery sought by plaintiffs. Pls.' Mem., pp. 4, 6-8. At any rate, plaintiffs maintained that not all of their claims touched on CDA-related issues. Id., pp. 17-19.

As to the alleged expense and burden on Allnurses in answering the discovery, plaintiffs pointed out that they have only served a modest number of document requests, and were simply asking that Allnurses answer it and comply with the Pretrial Schedule Order regarding their initial disclosures and provide answers to their informal ESI questions. Id., pp. 8-9; Ravin Decl., ¶ 10. At the motion hearing, plaintiffs' counsel further argued that Allnurses had submitted no evidence, in the way of a declaration or affidavit, regarding the burden or expense it would incur by answering discovery.

At the motion hearing, Allnurses' counsel asserted that the Court should treat Document Requests Nos. 10 and 11 similarly to Requests Nos. 1-4, which have been stayed, as Requests Nos. 10 and 11 attempt to obtain the same information as Request Nos. 1-4, i.e., the identity of the John Doe defendants. Also at the motion hearing, plaintiffs' counsel requested that, if the Court granted any part of Allnurses' motion, the Court order Allnurses to gather and prepare documents responsive to any request the Court stayed, so that when the stay was eventually lifted (assuming that occurs), the documents could be produced the same day. Additionally, plaintiffs' counsel asked the Court to shorten the time for Allnurses to file objections to this Order, assuming objections were forthcoming.

Under Rule 26(c) of the Federal Rules of Civil Procedure, a party may move the court for a protective order staying discovery. A court may only issue such an order, however, upon the movant's showing of good cause, including to avoid undue burden or expense. Id. “ ‘[I]t, of course, is black letter law that the mere filing of a motion to dismiss the complaint does not constitute ‘good cause’ for the issuance of a discovery stay.' ” TE Connectivity Networks, Inc. v. All Sys. Broadband, Inc., Civ. No. 13-1356 (ADM/FLN), 2013 WL 4487505, at *2 (D. Minn. Aug. 20, 2013) (quoting Chesney v. Valley Stream Union Free Sch. Dist. No. 24, 236 F.R.D. 113, 115 (E .D.N.Y. 2006) and citing Ministerio Roca Solida v. U.S. Dept. of Fish & Wildlife, 288 F.R.D. 500, 502 (D.Nev.2013) ( “[T]o establish good cause for a stay, the moving party must show more than an apparently meritorious Rule 12(b)(6) motion.”)). As the court explained in TE Connectivity Networks,

*4 2013 WL 4487505, at *2 (internal citations omitted).

This Court granted Allnurses motion as to Document Requests Nos. 10 and 11 seeking information leading to the identity of the John Does, concluding that these requests should be treated in the same fashion as Requests Nos. 1-4 –i.e., subject to the same stay pending the District Court's ruling on Allnurses' objections to this Court's December 18, 2015, Order.

The balance of Allnurses' motion was denied for the following reasons. First, Document Requests Nos. 5-9 do not seek information similar to the information sought by Requests Nos. 1-4, 10 and 11, and therefore, do not fall within the scope of the stay order. Second, Allnurses submitted no evidence regarding the burden to it or the expense it would incur if it was required to respond to this discovery, the Rule 26(a)(1) disclosures or plaintiffs' ESI questions. As a result, the Court had no basis for accepting Allnurses' conclusory representations on this point. Third, while the Court is not in a position to address the merits of Allnurses' motion to dismiss, the Court notes that there is no language in the CDA which directs the Court to stay discovery in the event a motion to dismiss is brought, nor is the Allnurses' claim of “immunity” under the CDA the sort of “immunity” that might support a motion to stay. See TE Connectivity Networks, Inc., 2013 WL 4487505, at *2 (“This case does not involve a statute or doctrine of law which requires the resolution of motions to dismiss before discovery begins.”) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 321 (2007); Lovelace v. Delo, 47 F.3d 286, 287 (8th Cir.1995)[2]); see also, Gard v. Dooley, Civ. No. 14-4023, 2015 WL 632097, at *2 (D. S.D. Feb. 13, 2015) (“The Supreme Court has stated that ‘if the defendant does plead the [qualified] immunity defense, the district court should resolve that threshold question before permitting discovery.’ ”) (quoting Crawford–El v. Britton, 523 U.S. 574, 598 (1998) (citation omitted)).

Fourth, even if Allnurses' motion to dismiss were granted as to it, the Court is satisfied that the discovery sought by plaintiffs to address claims against the unnamed defendants will likely proceed and consequently, Allnurses will still be required to respond to and incur the burden and expense of some or all of that discovery.

Fifth, no date has been set to hear Allnurses' Motion to Dismiss, and obviously this Court cannot predict when it will be decided. In the meantime, of great concern to this Court, is the fact that this case is already more than a year old and thus far, no discovery has been conducted. This case needs to move forward.

*5 For all of these reasons, the Court concluded that a stay of all discovery is not warranted and is requiring Allnurses to serve its initial disclosures, respond to Document Requests Nos. 5-9, and respond to plaintiffs' informal ESI questions on or before March 2, 2016. Further, Allnurses must timely respond to all future discovery.

The Court denied plaintiffs' counsel's oral requests to require Allnurses to gather and prepare documents for production in response to any discovery that is stayed and to shorten the time for objections to this Order. However, if the District Court overrules any or all of Allnurses' objections to this Court's December 18, 2015 Order (affecting Document Requests Nos. 1-4 and similar Requests Nos. 10 and 11), the Court will immediately issue an order addressing the timing of Allnurses responses to this discovery.

In light of the Court's ruling on Allnurses' motion for a stay, the Court has concluded that plaintiffs' Motion to Compel Discovery is moot. The Motion to Compel addressed the same discovery covered in the instant decision and plaintiffs' counsel articulated no reason why the issues raised in that motion are not resolved by this decision.[3] Nonetheless, after reviewing this Order, if plaintiffs develop a good faith basis to pursue another motion to compel, they may do so.

J.S.M.

The hearing on defendants' motion was conducted telephonically.

In Tellabs, the Supreme Court observed that the Private Securities Litigation Reform Act specifically authorizes a stay of discovery pending resolution of any motion to dismiss. 551 U.S. at 321. In Lovelace, the Eighth Circuit held a stay of discovery may be appropriate while resolving entitlement to qualified immunity, as the purpose of such immunity is to protect government from litigation. 47 F.3d at 287.

The Court is aware that plaintiffs sought attorneys' fees in connection with their Motion to Compel, but told counsel at the motion hearing that even if the hearing on this motion proceeded, the Court would not have awarded fees.