Accordingly, there is insufficient likelihood of "irreparable harm" to
the defendants to justify a stay. Both the Circuit and the U.S. Supreme
Court have approved the very "harm" defendants point to: discovery
procedures in which a request for documents from a member of the Executive
is made in the context of judicially supervised discovery, the document
is either produced or a privilege is asserted with respect to the
document, and, in the latter case, the party seeking the document must
demonstrate that the public need for the document outweighs the interests
underlying the privilege in order to obtain production of the document.
See, e.g., Clinton v. Jones, 520 U.S. at 704-05; In re Executive Office
of the President, 215 F.3d 20, 22, 24 (D.C. Cir. 2000); Dellums v.
Powell, 561 F.2d 242, 247, 248 (D.C. Cir. 1977); see also Nixon v.
Administrator of General Services, 433 U.S. 425, 439-455 (1977).
C. Public Interest
Conversely, the harm to both the plaintiffs and the public of granting
the stay is substantial, likely, and adequately proven. As plaintiffs
point out, Congress, Executive agencies, and the public have been debating
the energy policy developed by defendants without the benefit of the
information sought by plaintiffs in this case. In some instances, final
actions have already been taken. As time proceeds, the value of the
information sought by plaintiffs and the public declines substantially,
thereby effectively denying plaintiffs the relief to which they contend
they are entitled. Additionally, both Congress and the Judicial Branch
have recognized the public interest in avoiding "piecemeal" litigation
occasioned by stays and interlocutory appeals. See, e.g., United States
v. Nixon, 418 U.S. 683, 690 (1974).
Therefore, upon balancing of relevant factors, this Court concludes
that there exists no factual or legal predicate for granting defendants a
stay pending appeal. Accordingly, defendants' motion for stay pending
appeal is hereby DENIED; and it is
FURTHER ORDERED that defendants' alternative motion for an extension of
time in which to respond to plaintiffs' first request for document
production is GRANTED; and it is
FURTHER ORDERED that defendants shall fully comply with this Court's
outstanding Orders by no later than November 29, 2002.
Additionally, pursuant to the hearing held on defendant's motion for
stay on October 31, 2002, and for the reasons given in open court, it is
by the Court hereby
FURTHER ORDERED that plaintiffs shall file their response to
defendants' motion for certification pursuant to 28 U.S.C. § 1292(b)
by no later than November 6, 2002 and defendants shall file their reply
by no later than November 8, 2002; and it is
FURTHER ORDERED that defendants' motion for certification pursuant to
28 U.S.C. § 1292(b) shall be considered at the currently scheduled
November 13, 2002 hearing on all pending motions; and it is
FURTHER ORDERED that plaintiffs shall file a reply in support of their
motions to compel by no later than November 7, 2002; and it is
FURTHER ORDERED that the Order of Court dated November 1, 2002 is
VACATED and superseded by this amended Order, with technical revisions
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