1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 APOTHIO, LLC, Case No. 1:20-cv-00522-JLT-CDB

12 Plaintiff, ORDER GRANTING STATE DEFENDANTS’

MOTION FOR DISCOVERY STAY

13 v. 14 (Docs. 116, 119) KERN COUNTY, et al. 15 Defendants. 16 17 Before the Court is Defendants California Department of Fish and Wildlife, (“CDFW”), 18 CDFW Director Charlton H. Bonham, and CDFW Captain Andrew Halverson (collectively “State 19 Defendants”) Motion to Stay Discovery (Doc. 116), Plaintiff Apothio, LLC’s (“Plaintiff”) 20 Opposition to the motion (Doc. 117), and State Defendant’s Reply (Doc. 118). Plaintiff also filed 21 a Motion to File a Sur-Reply (Doc. 119) with accompanying sur-reply brief.1 22 Relevant Factual and Procedural Background 23 Procedural History 24 In its first amended complaint (“FAC”) (Doc. 88, FAC), Plaintiff alleges the following 25 facts. Plaintiff is “an emerging vertically integrated player in the development of hemp-based 26 foods, nutraceuticals, and (eventually) pharmaceuticals.” Id. at ¶ 65. Plaintiff was at all relevant 27

1 The Court GRANTS Plaintiff’s motion and has considered the sur-reply brief (Doc. 119- 1 times an established agricultural research institution (“EARI”) under California law. Id. at ¶ 66 2 (citing Cal. Health & Safety Code § 81000(c)). As part of its operations as an EARI, Plaintiff 3 maintains hundreds of acres of land for hemp research. Id. at ¶ 66. In Kern County, California, 4 Plaintiff maintained approximately 500 acres of land to grow, research, and harvest hemp plants. 5 Id. at ¶¶ 66, 97-98, 107-09. 6 In March 2019, Plaintiff planted approximately 17 million industrial hemp seeds on the 7 approximately 500 acres located in Kern County. Id. at ¶ 110. The hemp plants were grown 8 openly in the approximately 500 acres of fields, which were bordered by several “No 9 Trespassing” signs. Id. at ¶ 111. On September 9, 2019, Plaintiff was sued by a former vendor, 10 Newbridge Global Ventures, and its related entities. Id. at ¶ 129. Plaintiff asserts Newbridge 11 attempted to gain leverage over Plaintiff by reporting it was growing “500 acres of illegal 12 Cannabis” to law enforcement. Id. at ¶¶ 129-33. 13 On October 17, 2019, Defendant Halverson, a CDFW Lieutenant, applied for and 14 obtained a search warrant to collect samples from Plaintiff’s field for tetrahydrocannabinol 15 (“THC”) testing. Id. at ¶¶ 29, 134. Halverson’s warrant application represented that Plaintiff 16 intended to sell cannabis to out-of-state buyers. Id. at ¶ 138. Plaintiff contends Defendant 17 Halverson obtained the search warrant by intentionally, knowingly, and recklessly 18 misrepresenting or omitting material facts to deceive the court. Id. at ¶¶ 136-73. Plaintiff asserts 19 Defendants Halverson and Nicholson (a Sergeant with Kern County Sheriff’s Office) executed 20 the search warrant at night and “took 36 unscientific and unrepresentative samples from 21 [Plaintiff’s] crops” to corroborate statements made by a Newbridge employee. Id. at ¶¶ 28, 175. 22 Plaintiff alleges Halverson failed to file a return for the search warrant listing what he took and 23 retained, failed to send samples to an independent certified lab as required by law and destroyed 24 evidence. Id. at ¶ 176. 25 On October 24, 2019, Defendant Nicholson applied for and obtained a search warrant to 26 search and seize property used “as a means of committing a public offense.” Id. at ¶ 180. 27 Plaintiff alleges Defendant Halverson reviewed Nicholson’s warrant and affidavit before he 1 warrant based on many of the same intentional, knowing, and reckless misrepresentations and 2 omissions that Halverson made in his warrant and affidavit. Id. at ¶ 183. 3 On October 25, 2019, state and county law enforcement agents executed Nicholson’s 4 warrant and entered Plaintiff’s hemp fields in Kern County. Id. at ¶ 250. Plaintiff asserts that the 5 warrant was defective because of an incorrect description of Trent Jones (Plaintiff’s principal), 6 the acreage grown, and because it ignored Plaintiff’s status as a research entity under California 7 law. Id. at ¶¶ 254-57. Plaintiff alleges Defendant Nicholson acknowledged CDFW Director 8 Bonham had ratified the destruction of Plaintiff’s crops. Id. at ¶ 258. Soon after, Defendants 9 destroyed all approximately 500 acres of Plaintiff’s plants. Id. at ¶ 266. 10 On April 10, 2020, Plaintiff filed this civil action against State Defendants and Defendants 11 Kern County, Kern County Sheriff’s Office, Sheriff Donny Youngblood, and Sergeant Joshua 12 Nicholson (collectively “County Defendants”). (Doc. 1, Complaint ¶¶ 16-21). State Defendants 13 filed a motion to dismiss on June 12, 2020. (Doc. 21). County Defendants filed a motion to 14 strike portions of Plaintiff’s complaint on June 12, 2020, and a motion to dismiss on June 15, 15 2020. (Docs. 19, 24). On July 13, 2020, Plaintiff filed oppositions to the motions to dismiss and 16 Defendants filed replies on July 29, 2020. (Docs. 34, 39, 41). 17 On October 30, 2020, Plaintiff’s CEO Trent Jones was arranged for criminal misdemeanor 18 charges related to the facts of this case. (Doc. 58-2 at 4). On November 12, 2020, Defendants 19 jointly moved for a discovery stay on the grounds that discovery cannot proceed without 20 prejudice to Defendants while criminal charges proceed against Jones and that the motions to 21 dismiss and strike filed by Defendants will dispose of the entire complaint without further 22 discovery. (Doc. 58). On November 24, 2020, Plaintiff filed an opposition to Defendants’ joint 23 motion for a discovery stay. (Doc. 61). 24 State Defendants filed a reply on December 3, 2020. (Doc. 66). The next day, Plaintiff 25 filed a motion to strike improper content, or in the alternative, for leave to file a sur-reply in 26 opposition to Defendant’s motion to stay discovery. (Doc. 67). The Court granted Plaintiff’s 27 request and Plaintiff filed a sur-reply on December 11, 2020. (Docs. 68-69). 1 On January 8, 2021, the Court granted Defendants’ joint motion for a discovery stay. 2 (Doc. 72). The Court found the issues in this civil action and Jones’ ongoing criminal 3 investigations were parallel proceedings that would likely involve an overlap of witnesses and 4 documentary evidence. Id. at 5. However, the Court found a discovery stay of this action based 5 on Jones’s Fifth Amendment pleading rights and the ongoing criminal proceedings was 6 unwarranted, at that time. Id. at 5-9. Instead, the Court found a stay was warranted pending 7 resolution of Defendants’ motions to dismiss. Id. at 10-12. The Court took a “preliminary peek” 8 at the parties’ motion to dismiss and held Defendants’ arguments were “sufficiently meritorious 9 for a finding that the motions are potentially dispositive of the case.” Id. at 11. Further, the Court 10 found there was no genuine dispute regarding whether the pending, potentially dispositive 11 motions to dismiss can be decided absent additional discovery. Id. at 12. 12 On April 25, 2022, the Court granted State Defendants’ motion to dismiss on Rule 8 13 grounds and declined to address the remainder of the motion. (Doc. 86). The Court found 14 Plaintiff’s complaint failed to specify which State Defendant took what action. Id. at 15-16. The 15 Court granted in part and denied in part County Defendant’s motion to dismiss. Id. at 18-39. The 16 Court held Plaintiff adequately pled a due process claim as Plaintiff' to survive a motion to 17 dismiss. Id. at 24. The Court found Plaintiff’s crops were not contraband per se and were due at 18 least some process before their destruction. Id. For the same reason, County Defendant’s motion 19 to dismiss Plaintiff’s Bane Act and Takings Clause claim were denied. Id. at 24-25. 20 The Court also granted County Defendant’s motion to dismiss Plaintiff’s claim alleging 21 unreasonable search, seizure, and destruction in violation of the Fourth Amendment. Id. at 25-30. 22 The Court took judicial notice of Defendant Halverson and Defendant Nicholson’s search 23 warrants and affidavits. Id. at 27. The Court found the content of Defendants’ probable cause 24 affidavits rendered some of Plaintiff’s Fourth Amendment claims that Defendants engaged in 25 judicial deception, “facially obsolete” and the rest insufficient to make out a judicial deception 26 claim. Id. The Court considered Plaintiff’s claim Defendant Halverson lacked a valid warrant 27 but found “the complaint does not presently state a claim that effectively undermines that 1 warrant.” Id. at 29. However, because it was possible that Plaintiff could cure the identified 2 deficiencies, the Court granted Plaintiff leave to amend its’ Fourth Amendment claim. Id. at 30. 3 On May 25, 2022, Plaintiff filed the operative FAC. (Doc. 88). Plaintiff raises federal 4 and state claims against all Defendants for (1) unreasonable search and seizure/destruction, (2) 5 due process, (3) taking of private property without just compensation, (4) conversion, (5) trespass 6 to chattels, (6) negligence, and for (7) declaratory judgment. Id. at ¶¶ 304-380. On August 8, 7 2022, Defendants filed separate motions to dismiss. (Docs. 94-95). On September 30, 2022, 8 Plaintiff filed an opposition to Defendants’ motions to dismiss. (Doc. 103). State Defendants 9 filed a reply on October 27, 2022. (Doc. 109). County Defendants filed a reply on November 15, 10 2022. (Doc. 111). Plaintiff filed a motion for leave to file a sur-reply on November 22, 2022. 11 (Doc. 115). Both motions to dismiss are pending before the Court. 12 The Pending Motion to Stay Discovery 13 On December 12, 2022, Plaintiff sent State Defendants a first set of five interrogatories 14 and a second set of requests for production of documents. (Docs. 116-1 at 5, 116-2 at Exs. B and 15 C ). On January 24, 2023, State Defendants filed a motion for a discovery stay. (Doc. 116). 16 State Defendants request “all discovery, including that already propounded” should be stayed. 17 (Doc. 116-3 at 2). State Defendants assert a stay of discovery is appropriate as their motion to 18 dismiss disposes of all claims against them. (Doc. 116-1 at 6-7). State Defendants argue 19 Plaintiff’s claims regarding violations of state and federal civil rights law, including 20 unconstitutional search and seizure, the taking of its property, and due process violations, are 21 uniformly unfounded as State Defendants had “abundant probable cause to search Plaintiff’s open 22 fields.” Id. at 6. 23 State Defendants claim their “motion to dismiss Defendant Halverson is grounded in the 24 court’s prior ruling to dismiss [Plaintiff’s] claims based upon the lack of probable cause for the 25 search warrant.” Id. at 7. State Defendants assert Plaintiff has failed to plead any material facts 26 that Defendant Halverson’s search involved judicial deception or that he made “deliberately false 27 statements or recklessly disregarded the truth.” Id. State Defendants also argue that a stay of 1 “should be made early in the proceedings so that the costs and expenses of trial are avoided where 2 the defense is dispositive.” Id. State Defendants contend there are no factual issues requiring 3 discovery to decide the motion to dismiss. Id. at 8. Moreover, State Defendants argue discovery 4 should be stayed because Plaintiff is attempting to misuse the civil discovery process for Jones’ 5 criminal case. Id. 6 On February 7, 2023, Plaintiff filed an opposition arguing a discovery stay is not 7 necessary. (Doc. 117). First, Plaintiff argues the Court already denied County Defendants’ 8 motion to dismiss and “there is no reasonable or coherent basis to conclude…that the Court for 9 some reason will change its mind and not permit those claims to proceed.” Id. at 3. Plaintiff 10 claims it will be entitled to take discovery of the County Defendants, and it would be inefficient 11 for the parties to conduct discovery in a piecemeal fashion. Id. 12 Next, Plaintiff asserts State Defendants are unlikely to succeed on their motion to dismiss. 13 Plaintiff argues State Defendants’ motion to dismiss contains only conclusory assertions that 14 Defendant Halverson’s search was proper. Id. at 8-9. Plaintiff argues State Defendants’ motion 15 fails to account for Plaintiff’s “substantially revised factual allegations and for the critical 16 fact…[Plaintiff] drafted them with the benefit of the probable cause affidavits.” Id. at 9. Plaintiff 17 contends State Defendants fail to explain how their pending motion to dismiss will succeed 18 despite these new allegations. Id. 19 Plaintiff also argues State Defendant’s qualified immunity defense cannot be a basis to 20 stay discovery. Id. at 11-12. Plaintiff claims qualified immunity only protects an official from 21 “broad reaching” discovery, it does not justify State Defendant’s request for a blanket stay of 22 discovery. Id. at 12. Further, Plaintiff asserts State Defendants do not possess a viable qualified 23 immunity defense as to Plaintiff’s judicial deception and state law claims. Id. 24 Plaintiff avers it will be severely prejudiced with a discovery stay as State Defendants 25 have already destroyed evidence and there is a risk that witnesses’ memories will fade. Id. at 9. 26 Plaintiff claims Defendant Halverson’s emails, prior to November 2019, already were improperly 27 destroyed after State Defendants failed to implement preservation measures and raises concerns 1 that relevant witness testimony may be “lost forever” and identifies one Kern County Sheriff 2 Officer commander “who made extensive public statements about the search has already passed 3 away.” Id. at 9. 4 Plaintiff contends State Defendants’ argument Plaintiff is attempting to misuse the civil 5 discovery process for Jones’ criminal case is unfounded. Id. at 12. Plaintiff asserts the Court has 6 already held that the “Keating” factors do not justify a stay in this case and State Defendants’ 7 renewed motion sets out no grounds for any different result. Id. (citing Keating v. Office of Thrift 8 Supervision, 45 F.3d 322 (9th Cir. 1995)). 9 On February 17, 2023, State Defendants filed a reply. (Doc. 118). State Defendants 10 reiterate their motion to dismiss will dispose of the need for discovery. Id. at 2. State Defendants 11 assert Plaintiff has no plausible due process allegations against them as Defendant Halverson 12 merely collected and tested Plaintiff’s crops, and the County eradicated Plaintiff’s crops. Id. at 5. 13 State Defendants argue Plaintiff’s judicial deception claim “lacks plausible factual allegations in 14 the original complaint and remain uncured in the [first amended complaint].” Id. at 3. State 15 Defendants contend Defendant Halverson had probable cause to search and sample Plaintiff’s 16 open fields. Id. at 4. Further, State Defendants aver Plaintiff’s “utter failure” to allege any 17 plausible judicial deception by Defendant Halverson “cements his qualified immunity as an 18 induvial” and supports State Defendants’ argument their motion to dismiss will dispose of all 19 Plaintiff’s claims against them. Id. at 5-6. 20 State Defendants argue Plaintiff’s spoliation accusations are baseless and irrelevant. Id. at 21 6. State Defendants claim Plaintiff’s accusations of evidence destruction are unfounded and 22 provided declarations in support of this claim from Defendant Halverson and David Perez, a 23 cyber-security analyst employed with CDFW. Id.; (Docs. 118-1, 118-2). State Defendants claim 24 even if evidence had been destroyed, continuing discovery will not bring that evidence back. 25 (Doc. 118 at 6). State Defendants contend whether they were sufficiently on notice of pending 26 litigation to preserve evidence is a separate legal and factual dispute not before this Court and 27 Plaintiff’s “attempt to manufacture a threat of spoilation to continue discovery is not grounds to 1 On February 24, 2023, Plaintiff filed a motion to file a sur-reply in opposition to State 2 Defendant’s motion to stay discovery. (Doc. 119). Plaintiff claims the affidavits of Defendant 3 Halverson and Mr. Perez confirm State Defendants had allowed Defendant Halverson’s emails to 4 be deleted. (Doc. 119-2 at 3). Plaintiff asserts Mr. Perez’s claim there are some deleted emails 5 he was able to recover further supports denial of State Defendants motion as “[t]he more time that 6 passes, the more difficult it will be to recover any deleted emails.” Id. 7 Legal Standard 8 A district court has wide discretion in controlling discovery. Little v. City of Seattle, 863 9 F.2d 681, 685 (9th Cir. 1988). Though the Ninth Circuit has not provided a clear standard for 10 evaluating a motion to stay discovery pending resolution of a potentially dispositive motion, it has 11 affirmed that district courts may grant such a motion for good cause. Id. (affirming district 12 court’s decision to stay discovery pending resolution of the motion for summary judgment); see 13 Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir. 2002) (affirming district court’s grant of 14 protective order staying discovery pending resolution of the motion to dismiss); see also Fed. R. 15 Civ. P. 26(c)(1) (“the court may, for good cause, issue an order to protect a party or person from 16 annoyance, embarrassment, oppression, or undue burden or expense”). The party seeking a 17 protective order has the burden “to ‘show good cause’ by demonstrating harm or prejudice that 18 will result from the discovery.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). 19 “[T]he Federal Rules of Civil Procedure does not provide for automatic or blanket stays of 20 discovery when a potentially dispositive motion is pending.” Mlejnecky v. Olympus Imaging Am. 21 Inc., No. 2:10-cv-02630 JAM KJN, 2011 WL 489743, at *6 (E.D. Cal. 2011). Blanket stays of 22 discovery are disfavored as “delaying or prolonging discovery can create unnecessary litigation 23 expenses and case management problems.” Salazar v. Honest Tea, Inc., No. 2:13-cv-02318- 24 KJM-EFB, 2015 WL 6537813, at *1 (E.D. Cal. 2015) (citing Simpson v. Specialty Retail 25 Concepts, Inc., 121 F.R.D. 261, 263 (M.D. N.C. 1988)). When evaluating a motion to stay, 26 district courts “inevitably must balance the harm produced by a delay in discovery against the 27 possibility that the motion will be granted and entirely eliminate the need for such discovery.” 1 District courts in the Ninth Circuit often apply a two-pronged test to decide whether to 2 stay discovery. Mlejnecky, 2011 WL 4889743, at *6; Seven Springs Ltd. P'ship v. Fox Capital 3 Mgmt. Corp., No. S-07-00142 LKK GGH, 2007 WL 1146607, at *1 (E.D. Cal. 2007). The first 4 prong requires that the pending motion “be potentially dispositive of the entire case, or at least 5 dispositive on the issue at which discovery is aimed.” Mlejnecky, 2011 WL 4889743, at *6. 6 Under the first prong, even if the motions are not completely dispositive, courts will stay 7 discovery where “resolution of the motions will impact the number of defendants and legal 8 theories at issue which will in turn impact the scope of discovery.” Pacific Surf Designs, Inc. v. 9 Whitewater West Indus., Inc., 2021 WL 3080061, at *2 (S.D. Cal. July 21, 2021). Accord Penn v. 10 Lucas, No. 1:18-cv-01482-AWI-BAK (PC), 2022 WL 16702913, at *2 (E.D. Cal. Oct. 28, 2022) 11 (granting discovery stay where “Defendants’ motion is potentially dispositive of the entire action 12 as to at least two defendants.”). The second prong requires the court to “determine whether the 13 pending, potentially dispositive motion can be decided absent additional discovery.” Mlejnecky, 14 2011 WL 4889743, at *6. If either prong is not met, discovery should proceed. Id. 15 Discussion and Analysis 16 Taking the second prong first, there is no genuine dispute that State Defendants’ motion to 17 dismiss can be decided without additional discovery. At present, the motion to dismiss has been 18 fully briefed, and the Court has taken the parties’ pleadings under consideration. (Docs. 94, 103, 19 109, 115). Accordingly, the Court finds that State Defendants have met their burden as to this 20 prong. 21 Regarding the first prong, the Court has taken a “preliminary peek” at the merits of the 22 underlying motion to dismiss in considering whether a stay of discovery as to State Defendants is 23 warranted in this case. Tradebay LLC v. eBay, Inc., 278 F.R.D. 597, 602 (D. Nev. 2011); see also 24 Qwest Commc’ns Corp v. Herakles, LLC., No. 2:07-cv-00393-MCE-KJM, 2007 WL 2288299, at 25 *2 (E.D. Cal. 2007). The Court’s “preliminary peek” is not intended to prejudge the outcome of 26 the motion. Zurich Am. Ins. Co. v. Wm. Bolthouse Farms, Inc., No. 21-cv-00783-NONE-JLT, 27 2021 WL 4493532, at *5 (E.D. Cal. Oct. 1, 2021) (acknowledging that “taking a ‘preliminary 1 position,” because the district judge “may have a different view of the merits of the underlying 2 motion”) (citing Tradebay, 278 F.R.D. at 604). The Court finds that State Defendants’ qualified 3 immunity arguments are sufficiently meritorious for a finding that the motion is potentially 4 dispositive on “the issues at which discovery is aimed.” Stavrianoudakis v. U.S. Department of 5 Fish & Wildlife, No. 1:18-cv-01505-LJO-BAM, 2019 WL 9667685, at *2 (E.D. Cal., Dec. 20, 6 2019). 7 Plaintiff claims Halverson’s judicial deception prohibits State Defendants from advancing 8 a qualified immunity defense. Plaintiff argues Defendant Halverson engaged in judicial 9 deception by submitting a search warrant application that contained material misrepresentations 10 and omissions. When asserting a claim for judicial deception in violation of one’s Fourth 11 Amendment rights, the proponent must show that the affiant “made deliberately false statements 12 or recklessly disregarded the truth in the affidavit and that the falsifications were material to the 13 finding of probable cause.” Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 14 2002) (internal quotation marks and citation omitted). “To determine the materiality of omitted 15 facts, [courts] consider whether the affidavit, once corrected and supplemented, establishes 16 probable cause.” Bravo v. City of Santa Maria, 665 F.3d 1076, 1084 (9th Cir. 2011) (internal 17 quotation marks and citation omitted). A plaintiff must allege, and ultimately establish, that 18 “without the dishonestly included or omitted information, the magistrate would not have issued 19 the warrant. Put another way, the plaintiff must establish that the remaining information in the 20 affidavit is insufficient to establish probable cause.” Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 21 1995), as amended on denial of reh’g (Dec. 5, 1995). 22 Here, Plaintiff argues Halverson misrepresented in his search warrant affidavit a 23 terminated processing agreement between Plaintiff and the company ProCann that demonstrates 24 an intent to sell, omitted exculpatory information contained in an FBI Report regarding Plaintiff’s 25 “record of compliance,” and omitted facts that undermined the credibility of Halverson’s 26 informants. (Doc. 103 at 24-28). Plaintiff asserts without these misrepresentations and omissions 27 the reviewing magistrate judge would not have found probable cause to grant Halverson’s 1 not that a reviewing court would find sufficient probable cause existed to grant State Defendants’ 2 warrant application, with or without Plaintiff’s alleged misrepresentations and omissions. See 3 (Doc. 88-1). 4 State Defendants have advanced a sufficient qualified immunity defense. The FAC 5 alleges Defendant Halverson’s role in the investigation was limited to collecting and analyzing 6 test samples from Plaintiff’s crops – an act, this Court assesses in connection with its 7 “preliminary peek,” that was authorized by a lawful warrant. Moreover, the FAC fails to allege 8 any constitutional violations or specific knowledge of a violation by Director Bonham. 9 Therefore, in its “preliminary peek” analysis of the merits of Defendants’ motion to dismiss, it is 10 more likely than not that State Defendants will be found to be entitled to qualified immunity. See 11 Pearson v. Callahan, 555 U.S. 223, 232 (2009) (a government official is entitled to qualified 12 immunity from a claim for damages unless the plaintiff raises a genuine issue of fact showing a 13 violation of a constitutional right that was clearly established at the time of Defendant’s alleged 14 misconduct). Plaintiff’s assertion that even a meritorious qualified immunity defense is an 15 improper basis on which to grant a motion to stay is without merit. See, e.g., Bride v. Snap Inc., 16 No. 2:21-cv-06680-FWS-MRW, 2022 WL 17184600, at *3 (C.D. Cal. Oct. 21, 2022) (granting 17 stay in part because “if Defendants prevail on their arguments under the CDA—that immunity 18 under the statute applies to Plaintiffs’ federal and state law claims—Plaintiffs claims would be 19 barred under the CDA. As such, the court finds the motions to dismiss currently pending in this 20 case to be potentially dispositive of this case.”); Onuoha v. Facebook Inc., No. 5:16-cv-06440- 21 EJD, 2017 WL 11681325, at *1 (N.D. Cal. Apr. 7, 2017) (same). 22 Aside from the two-prong analysis discussed above, the Court is mindful that it “should 23 inevitably balance the harm of staying discovery with the benefit of allowing discovery to 24 continue.” GTE Wireless, Inc. v. Qualcomm, Inc., 192 F.R.D. 284, 290 (S.D. Cal. 2000). Thus, 25 the Court has considered Plaintiff’s claim that further delay will cause prejudice as State 26 Defendants have destroyed evidence and witnesses’ recollection may deteriorate over time. But 27 denying State Defendants’ stay request on this basis would be an improper remedy to address 1 assertion that State Defendants have engaged in the destruction of evidence, Plaintiff may seek 2 appropriate sanctions in advance of trial. See Ho Keung Tse v. Apple, Inc., No. C 06-06573 SBA, 3 2010 WL 1838691, at *3 n. 2 (N.D. Cal. 2010). Further, any prejudice to Plaintiff that witnesses’ 4 memories will fade is minimal given that this proceeding and the related criminal proceedings 5 involve similar facts, and witnesses, and it is unlikely that evidence will be lost or memories will 6 fade with the passage of time. McCormick v. Rexroth, No. C 09-4188 JF, 2010 WL 934242, at *3 7 (N.D. Cal. 2010). 8 The Court finds that State Defendants have shown good cause for their requested stay of 9 discovery. In the interest of case management, the Court finds a discovery stay of this entire 10 action is appropriate to prevent discovery from occurring on separate tracks. No scheduling order 11 has been issued for this case and no deadlines have been set. Proceeding with discovery will 12 result in unnecessary motion practice, litigation costs, and the unnecessary consumption of 13 judicial resources. See, e.g., Pacific Surf Designs, Inc., 2021 WL 3080061, at *2 (“The Court 14 finds that opening discovery as to only one claim or certain Defendants would not be an efficient 15 way to litigate the case and would likely result in significant litigation over the scope of the 16 discovery and repetitive discovery”). 17 Conclusion 18 After an analysis of the harms presented by staying discovery versus continuing discovery 19 and a preliminary consideration of the likelihood of success of State Defendants’ motion to 20 dismiss Plaintiff’s FAC, the Court finds good cause exists to grant State Defendants’ motion to 21 stay discovery under Rule 26. 22 Accordingly, IT IS HEREBY ORDERED the State Defendants’ motion for a discovery 23 stay (Doc. 116) is GRANTED pending resolution of the motions to dismiss (Docs. 94-95) and all 24 discovery is stayed until further order of the Court. 25 / / / 26 / / / 27 1 As appropriate, the Court will convene a status conference with the parties to discuss case 2 || management and scheduling following the assigned district judge’s issuance of rulings on the 3 | pending motion to dismiss. 4 | IT IS SO ORDERED. > | Dated: March 27, 2023 | hr 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12