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MOTION to Stay Discovery filed by Thomson Reuters Corporation.… — Brooks v. Thomson Reuters Corporation (Dkt. 37)

No. 3:21-cv-01418-EMC · Doc. 37 · Docket on CourtListener

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      Case 3:21-cv-01418-EMC Document 37 Filed 06/21/21 Page 1 of 10



 1   Susan D. Fahringer, Bar No. 21567                       Gabriella Gallego, Bar No. 324226
     SFahringer@perkinscoie.com                              GGallego@perkinscoie.com
 2   Nicola C. Menaldo, pro hac vice                         PERKINS COIE LLP
     NMenaldo@perkinscoie.com
 3   Anna M. Thompson, pro hac vice                          3150 Porter Drive
     AnnaThompson@perkinscoie.com                            Palo Alto, CA 94304-1212
 4   PERKINS COIE LLP                                        Telephone: 650.838.4300
     1201 Third Avenue, Suite 4900                           Facsimile: 650.838.4350
 5   Seattle, WA 98101-3099
     Telephone: 206.359.8000
 6   Facsimile: 206.359.9000

 7   Attorneys for Defendant
     Thomson Reuters Corporation
 8

 9                                UNITED STATES DISTRICT COURT

10                           NORTHERN DISTRICT OF CALIFORNIA

11                                       SAN FRANCISCO DIVISION

12

13   CAT BROOKS and RASHEED                        Case No. 3:21-cv-01418-EMC
     SHABAZZ, individually and on behalf of
14   all others similarly situated,                DEFENDANT’S NOTICE OF MOTION
                                                   AND MOTION TO STAY DISCOVERY
15                         Plaintiffs,
                                                   Date:        July 29, 2021
16
            v.                                     Time:        1:30 p.m.
17                                                 Place:       Courtroom 5, 17th Floor
     THOMSON REUTERS CORPORATION,                  Judge:       Hon. Edward M. Chen
18
                           Defendant.
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     CASE NO. 3:21-CV-01418-EMC                                                 MOTION TO STAY
       Case 3:21-cv-01418-EMC Document 37 Filed 06/21/21 Page 2 of 10



 1   TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
 2          PLEASE TAKE NOTICE that on July 29, 2021 at 1:30 p.m., or as soon thereafter as this
 3   Motion may be heard in this Court, Defendant Thomson Reuters Corporation (“Thomson
 4   Reuters”), by and through its counsel of record, will and hereby does move the Court for an order
 5   staying discovery pending (1) resolution of its Motion to Dismiss Pursuant to Fed. R. Civ. P.
 6   12(b)(6) and Motion to Strike Pursuant to California Code of Civil Procedure § 425.16
 7   (hereinafter “Motion to Dismiss”), or (2) in the event the Court grants the Motion to Dismiss with
 8   leave to amend, until there is no longer a pleading challenge that would result in the Court
 9   dismissing the case. See ECF No. 28. This Motion is based on this Notice, the following
10   Memorandum of Points and Authorities, the pleadings and papers on file in this action, any
11   argument and evidence to be presented at hearing, and any other matters that may properly come
12   before the Court. The parties have conferred telephonically pursuant to Local Rule 37-1(a)
13   regarding the present dispute and were unable to reach a resolution.
14                                       STATEMENT OF ISSUE
15          Whether the case-dispositive nature of Thomson Reuters’ Motion to Dismiss and the fact
16   that discovery is unnecessary to decide the Motion to Dismiss furnish good cause for a stay of
17   discovery pending resolution of the Motion to Dismiss.
18                                           INTRODUCTION
19          Thomson Reuters respectfully requests that the Court stay discovery in this matter until
20   (1) the Court issues a ruling on the Motion to Dismiss, or (2) in the event the Court grants the
21   Motion to Dismiss with leave to amend, until there is no longer a pleading challenge that would
22   result in the Court dismissing the case. A stay is warranted because this case satisfies the two-part
23   test that this District applies in considering a motion to stay: the pending Motion to Dismiss raises
24   important threshold issues that are likely to dispose of the entire case, and no discovery is
25   necessary to decide it. The Motion to Dismiss argues that Plaintiffs’ Complaint does not state a
26   claim; that Thomson Reuters is immune from Plaintiffs’ claims under the First Amendment of the
27   U.S. Constitution and Section 230 of the Communications Decency Act (“CDA”); and that the
28

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     CASE NO. 3:21-CV-01418-EMC                                                         MOTION TO STAY
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 1   Complaint should be stricken because Thomson Reuters’ activity is protected under California’s

 2   anti-SLAPP statute. None of these arguments requires discovery and, if the Motion to Dismiss is

 3   granted, it will fully dispose of the case.

 4           Accordingly, discovery should be stayed pending resolution of the Motion to Dismiss.

 5                                             BACKGROUND

 6           Plaintiffs Cat Brooks and Rasheed Shabazz (“Plaintiffs”) filed this putative class action,

 7   which asserts claims for violations of the common law “right to publicity/misappropriation of

 8   likeness,” and California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200

 9   et. seq., along with a claim for unjust enrichment. See ECF No. 1, Ex. 1 (“Compl.”) ¶¶ 81-118.1

10           On April 5, 2021, Thomson Reuters moved to dismiss and strike the Complaint on

11   numerous grounds, each of which, on its own, would be fully case-dispositive. The Motion to

12   Dismiss explains the reasons why (1) Plaintiffs have failed to allege facts that state a claim for

13   relief under any of their claims; (2) the conduct targeted by Plaintiffs constitutes speech that is

14   protected under the First Amendment; (3) Plaintiffs’ claims fall squarely within the immunity

15   provided by Section 230 of the CDA; and (4) the Complaint should be stricken because it

16   constitutes a strategic lawsuit against public participation (“SLAPP”) under California law.

17   Briefing has closed on the Motion to Dismiss, which is set for hearing on June 24, 2021.

18           Under the current case schedule, the parties must confer under Federal Rule of Civil

19   Procedure 26(f) by June 24, the same day as the hearing on this Motion to Dismiss. The current

20   deadline to exchange initial disclosures and propose a discovery plan is July 8, 2021. See Case

21   Management Conference Order, ECF No. 26. A case management conference is set for July 15,

22   2021. Id. A deadline for discovery has not yet been set, nor has a trial date. Id.

23                                                 ARGUMENT

24           A district court has “wide discretion in controlling discovery.” Little v. City of Seattle, 863

25   F.2d 681, 685 (9th Cir. 1988). That discretion extends to staying discovery upon a showing of

26

27
     1
      The full background of this action is set forth in Thomson Reuters’ pending Motion to Dismiss.
28   See ECF No. 28.

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     CASE NO. 3:21-CV-01418-EMC                                                           MOTION TO STAY
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 1   “good cause” in order to “protect a party or person from annoyance, embarrassment, oppression,

 2   or undue burden or expense.” See Fed. R. Civ. P. 26(c)(1). The Ninth Circuit has explained that a

 3   stay of discovery pending a ruling on a motion to dismiss is consistent with “the purpose of

 4   F.R.Civ.P. 12(b)(6),” which is “to enable defendants to challenge the legal sufficiency of

 5   complaints without subjecting them to discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829

 6   F.2d 729, 738 (9th Cir. 1987). In the interest of judicial efficiency and conserving the Court’s

 7   resources, it is “sounder practice to determine whether there is any reasonable likelihood that

 8   plaintiffs can construct a claim before forcing the parties to undergo the expense of discovery.”

 9   Id.; see also Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D. Nev. 2011) (“Staying

10   discovery when a court is convinced that the plaintiff will be unable to state a claim for relief

11   furthers the goal of efficiency for the court and the litigants.”).

12           “Courts in this district have applied a two-pronged test to determine whether discovery

13   should be stayed pending resolution of a dispositive motion.” In re Nexus 6p Prods. Liab. Litig.,

14   No. 17-cv-02185, 2017 WL 3581188, at *1 (N.D. Cal. Aug. 18, 2017). “First, a pending motion

15   must be potentially dispositive of the entire case, or at least dispositive on the issue at which

16   discovery is directed.” Id. (citing Pac. Lumber Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.,

17   220 F.R.D. 349, 351-52 (N.D. Cal. 2003)). “Second, the court must determine whether the

18   pending motion can be decided absent discovery.” Id. (citing Pac. Lumber Co., 220 F.R.D. at

19   352). This two-part test accounts for the fact that it “furthers the goal of efficiency for the court

20   and the litigants” to pause discovery “when a court is convinced that the plaintiff will be unable to

21   state a claim for relief.” Id. at *1 (quoting Tradebay, LLC, 278 F.R.D. at 601).

22           A stay of discovery is warranted here under both factors. Moreover, the balance of

23   equities favors a stay in a complex case such as this one, where the requested stay is short and

24   definite in duration and is unlikely to cause significant prejudice to Plaintiffs. See, e.g., In re

25   Nexus, 2017 WL 3581188, at *2 (concluding that “limited stay of discovery does not unduly

26   prejudice Plaintiffs, and allows all parties to commence discovery with a better understanding of

27   which claims, if any, they must answer”); Cellwitch, Inc. v. Tile, Inc., No. 19-CV-01315, 2019

28   WL 5394848, at *2 (N.D. Cal. Oct. 22, 2019) (noting lack of prejudice when granting stay under

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     CASE NO. 3:21-CV-01418-EMC                                                            MOTION TO STAY
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 1   two factors). Finally, a stay until there are no further case-dispositive pleading challenges is

 2   warranted should the Court grant the Motion to Dismiss but allow leave to amend. Malley v. San

 3   Jose Midtown Dev. LLC, No. 5:20-CV-01925-EJD, 2020 WL 5877575, at *7 (N.D. Cal. Oct. 2,

 4   2020) (dismissing complaint, granting leave to amend, and granting motion to stay discovery).

 5                I.   Thomson Reuters’ MTD is potentially case-dispositive.

 6          This case meets the first prong of this district’s two-part test because the Motion to

 7   Dismiss “has the potential to be dispositive.” Cellwitch, Inc., 2019 WL 5394848, at *2 (granting

 8   discovery stay where “every claim in [the] complaint would be subject to dismissal” if motion to

 9   dismiss were granted); Malley, 2020 WL 5877575, at *7 (same).

10           Additionally, to the extent this Court is required to “take a ‘preliminary peek’ at the

11   merits of the pending dispositive motion to assess whether a stay is warranted[,]” there is a

12   significant “potential[]” that Defendant’s motion could resolve the entire matter. In re Nexus,

13   2017 WL 3581188, at *1 (citation omitted); see, e.g., id. at *2 (finding that the first prong was

14   met because defendant’s motion to dismiss presented “strong arguments for dismissal” even

15   though there was no “silver bullet” defense).

16          Here, the Motion to Dismiss has the potential to be case-dispositive on multiple,

17   independent grounds. In these circumstances, a stay of discovery will “alleviate wasted resources

18   and time.” Estate of Bock v. Cnty. of Sutter, Civ. No. S-11-0536, 2012 WL 94618, at *2 (E.D.

19   Cal. Jan. 9, 2012) (“[I]t is quite possible that some claims and/or defendants might be eliminated

20   by the motion, and the undersigned is reluctant to require defendants to expend resources and

21   perform much work in responding to discovery that might be mooted by the granting of the

22   motion in whole or in part.”); see also Rutman Wine Co., 829 F.2d at 738 (“‘[I]f the allegations of

23   the complaint fail to establish the requisite elements of the cause of action, our requiring costly

24   and time consuming discovery and trial work would represent an abdication of our judicial

25   responsibility.”’) (quoting Havoco of Am., Ltd. v. Shell Oil Co., 626 F.2d 549, 553 (7th Cir.

26   1980)); Hamilton v. Rhoads, No. C 11-0227, 2011 WL 5085504, at *1 (N.D. Cal. Oct. 25, 2011)

27   (granting discovery stay where motion to dismiss, if meritorious, was potentially dispositive of

28   the case).

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     CASE NO. 3:21-CV-01418-EMC                                                          MOTION TO STAY
       Case 3:21-cv-01418-EMC Document 37 Filed 06/21/21 Page 6 of 10



 1           Any one of these provides the basis to dispose of all claims. As explained in the Motion to

 2   Dismiss and Reply, see ECF Nos. 28 & 35, there is no legal basis for the unprecedented relief

 3   sought in the Complaint, which asks the Court to hold that California has made it unlawful for an

 4   information technology company to charge a fee to access factual information about people

 5   online. The foundation for all of Plaintiffs’ claims for relief is their claim for violation of the right

 6   of publicity. Yet Plaintiffs fail to state any right of publicity claim (whether statutory or common

 7   law), because Thomson Reuters’ actions are “categorically different” from the conduct

 8   implicating the right of publicity. In re Facebook, Inc., Consumer Priv. User Profile Litig., 402 F.

 9   Supp. 3d 767, 803 (N.D. Cal. 2019) (dismissing right of publicity claim where defendant was

10   alleged to have sold Plaintiffs’ personal information without consent). Thomson Reuters does not

11   use Plaintiffs’ identities or appropriate their names and likenesses to attract public attention or to

12   promote Thomson Reuters’ products or other endeavors, so there is no violation of the right of

13   publicity, and the central theory of Plaintiffs’ case fails. See ECF No. 28 at 7-9.

14           Plaintiffs’ UCL claims fail for the same reason and for other, independent reasons,

15   including that the California Consumer Privacy Act (“CCPA”), Cal. Civ. Code § 1798.100, et

16   seq., expressly permits the very conduct attacked here (an opt-out, rather than an opt-in,

17   framework for the sale of personal information). See ECF No. 28 at 14-16. As the Ninth Circuit

18   has recognized, in cases like this, where “the allegations of the complaint fail to establish the

19   requisite elements,” it would be wasteful to require “costly and time consuming discovery.”

20   Rutman Wine Co., 829 F.2d at 738.

21           A stay is particularly appropriate where, as here, the dispositive motion raises immunity as

22   a basis for dismissal. See Malley v. San Jose Midtown Dev. LLC, No. 20-cv-01925, 2020 WL

23   5877575, at *7 (N.D. Cal. Oct. 2, 2020) (“Common situations in which a court may determine

24   that staying discovery pending a ruling on a dispositive motion occur when dispositive motions

25   raise issues of jurisdiction, venue, or immunity.”) (internal quotations omitted); LG Corp. v.

26   Huang Xiaowen, No. 16-cv-1162, 2017 WL 2868416, at *1 (S.D. Cal. Feb. 23, 2017) (same).

27   Here, there are two grounds for immunity: the First Amendment and the CDA. See ECF Nos. 28

28   at 9-14 & 35 at 8-11. Pursuant to the strict scrutiny afforded to content-based restrictions, see

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     CASE NO. 3:21-CV-01418-EMC                                                            MOTION TO STAY
         Case 3:21-cv-01418-EMC Document 37 Filed 06/21/21 Page 7 of 10



 1   IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1120 (9th Cir. 2020), the First Amendment provides

 2   immunity where, as here, the purpose of alleged misappropriation of likeness is to “inform.” New

 3   Kids On The Block v. News Am. Publ’g, Inc., 745 F. Supp. 1540, 1547 (C.D. Cal. 1990), aff’d,

 4   971 F.2d 302 (9th Cir. 1992). Permitting Plaintiffs to engage in discovery would erode this

 5   immunity and create a “chilling effect” by raising the specter that any defendant like Thomson

 6   Reuters that is engaged in constitutionally protected speech may need to engage in costly

 7   discovery before disposing of non-meritorious right of publicity actions.2

 8           The CDA provides a separate basis for immunity. The CDA immunizes interactive

 9   computer service providers (like Thomson Reuters) from claims (such as Plaintiffs’) that treat

10   providers as publishers of third-party content. See ECF No. 28 at 19-23. And the CDA is case-

11   dispositive where, as here, all of the Plaintiffs’ claims stem from alleged publication of third-

12   party content. See Callahan v. Ancestry.com, Inc., Case No. 20-cv-08437, 2021 WL 783524, at

13   *5–6 (N.D. Cal. Mar. 1, 2021) (dismissing right of publicity and unfair competition claims

14   against website on CDA grounds); Order Dismissing First Am. Compl. at 12, Callahan, No. 20-

15   cv-8437, ECF No. 46 (dismissing with prejudice). The intent behind CDA immunity is not only

16   to immunize defendants from a potentially adverse judgment, but from the burdens of litigation

17   entirely. See Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d

18   1157, 1175 (9th Cir. 2008) (“[S]ection 230 [of the CDA] must be interpreted to protect websites

19

20   2
       Discovery’s “chilling effect” on constitutionally-protected speech motivated the California
     legislature to provide for an automatic stay of discovery when, as here, a defendant files an anti-
21   SLAPP motion. Cal. Civ. Proc. Code § 425.16(a), (g); see also Stewart v. Rolling Stone LLC, 181
     Cal. App. 4th 664, 675 (2010) (“The goal [of section 425.16] is to eliminate meritless or
22   retaliatory litigation at an early stage of the proceedings.”), as modified on denial of reh’g (Feb.
     24, 2010). Though the Ninth Circuit has held that the automatic stay provision of California’s
23   anti-SLAPP statute does not apply in federal court due to conflicts with the Federal Rules of Civil
     Procedure, Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001), “the conflict . . .
24   is lessened . . . where, as here, an anti-SLAPP motion challenges the legal sufficiency of
     Plaintiffs’ claims (rather than the factual basis for the claims), and is thus in the nature of a Rule
25   12(b)(6) motion to dismiss,” Mireskandari v. Daily Mail & Gen. Tr. PLC, No. CV 12-02943,
     2013 WL 12129944, at *3 (C.D. Cal. Jan. 14, 2013); see also Smith v. Payne, No. C 12-01732,
26   2012 WL 6712041, at *4 (N.D. Cal. Dec. 26, 2012), aff’d, 594 F. App’x 397 (9th Cir. 2015)
     (finding that “the discovery-limiting provisions of [the anti-SLAPP statute]” did not “collide”
27   with FRCP 56 where “the only issue presented by the motion is an issue of law and the motion is
     suitable for decision as a motion to dismiss pursuant to Rule 12(b)(6)”).
28

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     CASE NO. 3:21-CV-01418-EMC                                                         MOTION TO STAY
       Case 3:21-cv-01418-EMC Document 37 Filed 06/21/21 Page 8 of 10



 1   not merely from ultimate liability, but from having to fight costly and protracted legal battles.”)

 2   A brief stay of discovery would therefore be consistent with the Congressional intent behind the

 3   CDA, seeking to protect websites from the high costs of litigation, characterized by the Ninth

 4   Circuit as “death by ten thousand duck-bites.” Id. at 1174-75.

 5           Indeed, another Northern District of California court recently dismissed, with prejudice, a

 6   lawsuit bringing nearly identical claims for similar conduct against a similar defendant—in that

 7   case, an interactive computer service provider that allegedly sold access to California residents’

 8   personal information from yearbooks. See Order Dismissing First Am. Compl., Callahan v.

 9   Ancestry.com Inc., No. 20-cv-08437 (N.D. Cal. June 15, 2021), ECF No. 46 (dismissing with

10   prejudice claims for violation of California’s Right of Publicity Statute § 3344, California Unfair

11   Competition Law § 17200, intrusion upon seclusion, and unjust enrichment). The same result is

12   likely in this case.

13            II.    Discovery is not necessary to decide the Motion to Dismiss.

14           Second, this case also satisfies the second prong of this District’s two-part test, because no

15   discovery is necessary to resolve the Motion to Dismiss.

16           The Motion to Dismiss does not raise factual issues. Rather, it argues that Plaintiffs’

17   claims fail as a matter of law, for several independent reasons. See ECF No. 28. “Discovery is

18   only appropriate where there are factual issues raised by a Rule 12(b) motion.” Jarvis v. Regan,

19   833 F.2d 149, 155 (9th Cir. 1987). Accordingly, this case meets the second prong of this district’s

20   two-part test. See Cellwitch, 2019 WL 5394848, at *2 (holding the defendant “met its burden

21   under the second prong” when “the Court only need[ed] to look at the pleadings in order to issue

22   a decision about its motion to dismiss” and that “no other discovery is needed for the resolution

23   of” the motion to dismiss); see also Davis v. Elec. Arts Inc., No. C-10-03328, 2011 WL 2621626,

24   at *3 (N.D. Cal. July 5, 2011) (observing that anti-SLAPP motions identify legal defects while

25   accepting factual allegations as true).

26           III.    A stay is warranted here.

27           Because this case qualifies under the district’s two-part test for stays of discovery pending

28   a Motion to Dismiss, the Court should determine there is “good cause” for the brief stay sought

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     CASE NO. 3:21-CV-01418-EMC                                                         MOTION TO STAY
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 1   by this Motion. See, e.g., In re Google Digital Advert. Antitrust Litig., No. 20-CV-03556-BLF,

 2   2020 WL 7227159, at *3 (N.D. Cal. Dec. 8, 2020) (granting stay where court held that defendant

 3   satisfied its burden under the two-part test); Malley, 2020 WL 5877575, at *1 (N.D. Cal. Oct. 2,

 4   2020) (same); Reveal Chat Holdco, LLC v. Facebook, Inc., No. 20-CV-00363-BLF, 2020 WL

 5   2843369 (N.D. Cal. Apr. 10, 2020) (same); Cellwitch, 2019 WL 5394848, at *2 (same); In re

 6   Nexus, 2017 WL 3581188, at *2 (same); see also Fed. R. Civ. Proc. 26(c)(1)(A)-(B) (authorizing

 7   courts to, “for good cause, issue an order to protect a party or person from annoyance,

 8   embarrassment, oppression, or undue burden or expense” including by forbidding or narrowing

 9   discovery).

10          Indeed, several courts in other districts have recently granted discovery stays in cases very

11   similar to this one. See, e.g., Minute Entry, Backowski v. Peopleconnect Inc. et al, No. 21-cv-

12   00115 (W.D. Wash. Apr. 14, 2021) (finding good cause to vacate discovery deadlines pending

13   court’s ruling on the motion to dismiss which argued that CDA and First Amendment barred

14   liability for right of publicity claims); Order Granting Defendant’s Unopposed Motion to Stay

15   Discovery Pending Resolution of Their Motion to Dismiss, Knapke v. PeopleConnect, Inc., No.

16   21-cv-00262 (W.D. Wash. May 5, 2021), ECF No. 15 (staying discovery pending resolution of

17   motion to dismiss where defendant raised CDA and First Amendment defense to right of

18   publicity claim); Minute Entry, Bonilla v. Peopleconnect, Inc., No. 21-cv-00051 (N.D. Ill.

19   April 6, 2021), ECF No. 31 (staying discovery pending resolution of motion to dismiss where
20   defendant raised CDA defense to right of publicity claim); Minute Entry, Bonilla v. Ancestry.com,

21   Inc., No. 20-cv-07390 (N.D. Ill Mar. 23, 2020), ECF No. 28 (same); Joint Discovery Plan and

22   Proposed Order, Sessa et al v. Ancestry.com, Inc., No. 20-cv-02292 (D. Nev. Apr. 23, 2021), ECF

23   No. 30 (same, where parties stipulated to stay); see also In re Google Digital Advert. Antitrust

24   Litig., 2020 WL 7227159, at *3 (“This limited stay of discovery, therefore, does not unduly

25   prejudice Plaintiffs and allows all parties to commence discovery with a better understanding of

26   which claims, if any, they must answer.”). The result should be the same in this case.

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     CASE NO. 3:21-CV-01418-EMC                                                        MOTION TO STAY
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 1                                              CONCLUSION

 2           The pending Motion to Dismiss is potentially case-dispositive and discovery is not

 3   necessary to resolve it. Granting the brief stay requested by this Motion will not prejudice

 4   Plaintiffs, it will conserve the resources of the parties and this Court, and it will avoid the risk of

 5   undue prejudice to Thomson Reuters. Thomson Reuters’ Motion should be granted.

 6

 7   DATED: June 21, 2021                                 PERKINS COIE LLP
 8
                                                          By: /s/ Susan D. Fahringer
 9                                                            Susan D. Fahringer, Bar No. 21567
                                                              SFahringer@perkinscoie.com
10
                                                          Attorneys for Defendant
11                                                        Thomson Reuters Corporation
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     CASE NO. 3:21-CV-01418-EMC                                                            MOTION TO STAY


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