The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case has been assigned to me for all purposes. On October 29, 2010, I entered a judgment in favor of the petitioner, the Federal Trade Commission ("FTC"). Order of October 29, 2010 [#22]. Before me now are Church & Dwight, Co., Inc.'s Motion to Stay Pending Appeal [#27] and Petitioner Federal Trade Commission's Emergency Motion for an Enforcement Order Requiring Full Compliance with the District Court's October 29 Order or Requiring Church & Dwight Co., Inc. to Show Cause Why It Should Not Be Held in Contempt [#28].
The only portion of my October 29, 2010 order [#22] to which Church & Dwight ("C&D") presently takes exception is my refusal to permit it to produce documents to the FTC that were redacted to obliterate the portion of the documents that C&D claims do not relate to its sale of condoms. The FTC asks me to order C&D to produce the unredacted documents, while C&D asks me to stay my October 29, 2010 order pending the resolution of the appeal it has taken.
I had recent occasion to speak to the standards for granting a stay pending appeal, wherein I stated:
Last year the Supreme Court described the "traditional standards" for the issuance of a stay pending appeal as follows: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder, 129 S.Ct. 1749, 1756 (2009).
Friendship Edison Public Charter School Collegiate Campus v. Nesbitt, 704 F. Supp 2d 50, 51 (D.D.C. 2010).
The court of appeals has emphasized that the traditional factors are "typically evaluated on a 'sliding scale.'" Id. at 52 (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009)). Thus, a strong showing of one factor may excuse a relatively weaker showing on another. Id.
A. Likelihood of Success on the Merits
The first factor concerns the likelihood that the stay applicant will be successful with his appeal. While, as noted above, all factors need not be of equal weight, it is necessary for a petitioner to show "a substantial indication of probable success," to justify "the court's intrusion into the ordinary processes of administration and judicial review." Washington Metro. Area Transit Com. v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). The necessary showing on the merits, in turn, is "governed by the balance of equities as revealed through an examination of the other three factors." Id. at 844. The moving party is not required to show assured success on appeal. Id. Rather, if there ar questions raised that go to the merits of a case that are "so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation," the balance of equities will be in favor of a stay. Id. (quoting Hamilton Watch Co. v. Revlon, Inc., 483 F.2d 953, 954 (2d Cir. 1973) (per curiam)).
1. The Seriousness of the Issues on Appeal
C&D asserts that it has raised serious legal questions on its appeal, such that a stay is warranted. Church & Dwight Co., Inc.'s Reply to Petitioner Federal Trade Commission's Opposition to Church & Dwight Co., Inc.'s Motion to Stay Pending Appeal ("C&D Reply") [#33] at 3. In particular, C&D claims that its appeal "raises serious legal questions concerning the interpretation and continuing validity of Texaco."*fn1 Memorandum in Support of Church & Dwight Co., Inc.'s Motion to Stay Pending Appeal ("C&D Memo.") [#27-1] at 5. C&D alleges that "the Texaco standard and/or its application in the district courts requires clarification by the D.C. Circuit, after thirty years, as to how the 'reasonably relevant' prong of the standard is to be employed--and how far it can be stretched by the government." Id. at 6. C&D adds that "in the current technological age, with the added demands of e-discovery obligations, Texaco needs to be revisited as the burdens on corporations and prevalence of sweeping searches grow." Id. C&D likens this case to Al-Adahi v. Obama, 672 F. Supp. 2d 81 (D.D.C. 2009), wherein the court determined that the appeal "raise[d] serious and difficult issues, including the proper application of the well-established evidentiary standard in habeas corpus to the facts presented in this case." Id. at 83; C&D Reply at 3.
The FTC, in turn, objects to C&D's raising these issues on appeal, because C&D did not raise the issue of Texaco's needing to be "clarified" in this Court. Petitioner Federal Trade Commission's Opposition to Church & Dwight Co., Inc.'s Motion to Stay Pending Appeal ("FTC Opp.") [#29] at 3. The FTC claims that, because C&D failed previously to raise its arguments regarding the interpretation of Texaco, it has waived those arguments on appeal. Id. at 3-4. Indeed, as the FTC points out, C&D relied heavily on Texaco in support of its own position. See, e.g., Church & Dwight Co., Inc.'s Opposition to the Petition of the Federal Trade Commission for an Order Enforcing Subpoena Duces Tecum and Civil Investigative Demand [#17] at 24. In response, C&D claims that its grounds for appeal, "which resulted in serious legal questions," did not arise until the Court issued its opinion. C&D Reply at 4.
It is not my place to decide this question; however, I will note that the argument is compelling enough to raise significant questions concerning C&D's likelihood of success on appeal. As for the seriousness of the issues to be addressed, I find C&D's equating a reconsideration of Texaco with the substantial issues at stake in Al-Adahi to be questionable. Al-Adahi concerned the delicate balance of habeas corpus and national security; furthermore, had the stay not been granted, and the case reversed on appeal, it was likely the government ...