I have posted the documents related to the Fairholme case discovery schedule order made Friday beginning with the original order for discovery. This was the conclusion from Judge Sweeneys order for discovery-
“Conclusion-Plaintiffs are be entitled to conduct fact discovery for the purposes of addressing whether this court possesses jurisdiction and responding to defendant’s motion to dismiss for failure to state a claim. Briefing on defendant’s dispositive motion is STAYED pending the conclusion of fact discovery. The parties shall file, by no later than Friday, March 20, 2014, a joint status report proposing a discovery schedule. IT IS SO ORDERED. s/ Margaret M. Sweeney MARGARET M. SWEENEY Judge”
Generally in a legal case when a judge orders the plaintiff and defendant to file a joint status report proposing a discovery schedule both sides spend the time allowed negotiating a schedule that they both agree to. Usually somewhere in the middle of their initial proposals. In my post on April 2nd, I predicted that Judge Sweeney would side with Fairholme on this. The fact that she went completely with Fairholmes schedule is huge. There are only two likely reasons why the government gave up their chance to negotiate a better deal and focused instead on taking one more futile attempt to get discovery dis-allowed. One is that they know that, through discovery, their case will be destroyed.The other is that the attorneys handling this for the government are totally inept. Although both seem true to some extent, I would side with the former. Once you study up on the case, you will clearly see that much of the government defense borders on the absurd. I have yet to hear one qualified legal mind saying the government stands a chance on this at trial, if you have heard otherwise please post I would love to hear an opposing opinion.
Its very clear that the government strategy was to try and stall the case out in the hopes congress could pass a bill before a decision could be made regarding the sweep. The accelerated pace of discovery has killed this strategy. By filing a motion to dismiss and pretty much laying their case on the line to justify it, we are about to see a good portion of the trial before the trial. I predict that as discovery moves along it will become clear and clearer to the world that the government stands no chance of keeping the sweep in place, and we may see huge gains in the stock prices. I caution though that those forces in government that have been working for our demise will not go down without a fight.
In closing, I want to share one of my personal favorites from the order- “In addition, by no later than Thursday, August 14, 2014, the parties shall file a joint status report (“JSR”) suggesting future proceedings in this case. If the parties cannot agree on a specific course of action, they must set forth their respective positions in the JSR, and not in separate status reports. Separate status reports shall be stricken from the docket. IT IS SO ORDERED.” Judge Sweeney let the government know that she was not amused by their gamesmanship and insists that the next joint report will be just that! I am sure there will be much to analyze this coming week, but I hope to get the time to offer a summary of possibilities regarding our future. Keep the faith!