Brody v. Fox Broadcasting Company, LLC

Document and request

The provided document is a September 19, 2022 letter from Fox Broadcasting Company, LLC, identified as the defendant, to Judge Denise L. Cote. Fox requested an order staying, or pausing, discovery under Federal Rule of Civil Procedure 26(c) until the court resolved Fox’s pending motion to dismiss under Rule 12(b)(6). Fox also asked to postpone the initial pretrial conference scheduled for September 30, 2022. In the alternative, Fox asked the court to postpone both the initial pretrial conference and the parties’ conference under Rule 26(f) until after the dismissal motion was fully briefed and reviewed.

Fox stated that the parties had not yet held the Rule 26(f) conference and that discovery had not begun. The letter cited factors courts consider when deciding whether there is good cause to stay discovery, including the scope and burden of discovery, possible prejudice, and the strength of the pending motion.

Fox’s stated arguments

Fox argued that its dismissal motion raised substantial issues, principally under the fair-use doctrine in the Copyright Act. According to Fox, a Fox 35 news report used the plaintiff’s image while reporting on the criminal indictment of an Oath Keeper connected to the January 6 insurrection. Fox argued that the image had become news and that the use was therefore transformative. Fox also argued that the court could resolve fair use by comparing the image as described in the complaint with the original image, without merits discovery.

Fox further argued that the plaintiff would not be prejudiced because the case had been filed recently and there was no reason to believe evidence or important witnesses would disappear. Fox asserted that discovery would impose significant and potentially unnecessary burdens on Fox and Fox 35 personnel. The letter also stated that Fox had argued in its motion that the plaintiff had sued the wrong defendant.

Plaintiff’s position

Fox stated that it had consulted with the plaintiff’s counsel, R. Terry Parker, Esq. According to the letter, the plaintiff did not consent to staying discovery or postponing the conferences and argued that doing so would unnecessarily delay resolution of the plaintiff’s rights.

Disposition

The provided text contains Fox’s request letter but no order or other ruling by Judge Denise L. Cote. It therefore does not show whether the court granted, denied, or otherwise decided the requested stay or postponements.