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A motion for expedited discovery may be decided on a “reasonableness” standard and need not always be analyzed under the stricter test governing a motion for a preliminary injunction, a federal judge has ruled. In his 16-page opinion in Entertainment Technology Corp. v. Walt Disney Imagin-eering, U.S. District Judge Herbert J. Hutton found that the law “is indeed very unclear” on the issue of which standard to apply when deciding a motion for expedited discovery. Until recently, Hutton found, the case law was scant. But in recent years, two schools of thought have emerged. In the first line of cases, Hutton found that trial judges within the 3rd U.S. Circuit Court of Appeals began applying the four-factor test announced in Notaro v. Koch, a 1982 decision from the Southern District of New York. The Notarotest is “akin to the factors used to weigh a motion for preliminary injunction,” Hutton found. Under Notaro, the party seeking expedited discovery must show “irreparable injury,” “probability of success on the merits,” a connection between the expediting of discovery and the avoidance of injury, and evidence that the injury the movant would suffer without the discovery is greater than the injury the non-movant would suffer if the motion were granted. In Notaro, the plaintiffs had requested both a preliminary injunction and an expedited deposition of Edward Koch, who was mayor of New York. Hutton found that the Notarocourt reasoned that a stringent test was needed when deciding such a motion for expedited discovery to protect the defendants at the earliest stage of litigation. In the 3rd Circuit, Hutton found, the Notarotest was first applied by a New Jersey magistrate judge in Gucci America Inc. v. Daffy’s Inc.when Gucci’s lawyers requested expedited discovery of the names of alleged Gucci distributors who were selling Gucci products to the discount chain. The magistrate judge in Guccisuggested that the entire litigation was a sham in which Gucci’s real goal was to learn the identity of, and then punish, the distributors. As a result, the magistrate concluded that the Notarotest was appropriate because of the court’s “darker suspicion” that Gucci was using the motion to root out certain distributors. But Hutton found that a second, “more liberal” line of cases has emerged in recent years that has employed a “reasonableness inquiry” that considers many different factors, including some of the preliminary injunction factors. Unlike Notaro, Hutton said, there is no one case among those employing the reasonableness standard that articulates a comprehensive test. In Philadelphia Newspapers Inc. v. Gannett Satellite Information Network, a 1998 decision from the Eastern District of Pennsylvania, Hutton found that the court rejected the Notarotest as inappropriate and focused instead on the plaintiffs’ need for the discovery in light of an upcoming preliminary injunction hearing. The PNIcourt concluded that a motion for expedited discovery should be granted if it is narrowly tailored to fit the needs of the injunction hearing. Since PNI, Hutton said, judges in the Northern District of Illinois and the Northern District of California have expanded on the PNIreasonableness test by adding a balancing test that looks to whether the movant has shown “good cause” for the discovery that outweighs any prejudice to the non-movant. Taken together, Hutton found that PNIand its progeny called for a “reasonableness inquiry” in which trial judges should decide motions for expedited discovery on a case-by-case basis, considering the reasonableness of the request in light of all the circumstances — unless the circumstances are such that the Notarofactors apply. “Whether a preliminary injunction hearing is pending, then, has become one of the factors to be evaluated among many, rather than an outcome determinative test,” Hutton wrote. Turning to the motion before him, Hutton sided with the plaintiff’s lawyers and found that the reasonableness test should apply. In the suit, plaintiff ETC claims it entered into a contract with Disney to build “Mission: Space,” a new ride for the Epcot theme park in Florida that uses a multiple-arm centrifuge system to simulate the g-force load of space launch and re-entry. The ride opened to the public in August 2003, but by then the two companies were already embroiled in a dispute over the meaning of their contract. ETC claims the contract gave ETC the ultimate responsibility to complete the ride, but Disney claims that agreed-upon changes to the contract gave Disney the final say. In its motion for expedited discovery, ETC’s lawyers — Paul G. Nofer and Ira A. Rosenau of Klehr Harrison Harvey Branzburg & Ellers — asked that Disney be ordered to turn over all documents relating to safety testing of the ride. But Disney’s lawyers — Laurence Z. Shiekman and James D. Hollyday of Pepper Hamilton — argued that the Notarotest should apply because ETC’s motion for expedited discovery seeks essentially the same relief as it seeks in one of the counts of its suit. Hutton agreed that the discovery requests “do have an element of relief to them,” but found that the reasonableness test — and not the Notarotest — was appropriate because ETC was not “using the litigation as a shell game for the sole purpose of discovering the requested documents.” Although the defense lawyers lost the battle over the standard, they won the war over the motion because Hutton decided that the plaintiffs failed to prove their entitlement to the discovery even under the more liberal reasonableness test. Hutton found that since there is no pending preliminary injunction hearing that the parties must prepare for, ETC’s need to expedite discovery is “less urgent.” Hutton also said he was not convinced by ETC’s argument that expedited discovery is necessary to protect the public by allowing ETC immediate review of Disney’s testing data. But Hutton said the most important reason for denying the request was that Disney was correct in arguing that granting the request would effectively provide ETC some of the relief it seeks in the suit. “The court is unwilling to grant plaintiff under this motion for expedited discovery what may amount to specific performance of part of the contested contract,” Hutton wrote. Hutton found that ETC “wants the test data so that it can participate in the safety evaluation of the ‘Mission: Space’ attraction. That is precisely the specific performance that ETC requests in its complaint.” As a result, Hutton concluded, “the expedited discovery request at issue, then, goes to what may be ultimate issues in this case.” (Copies of the 16-page opinion inEntertainment Technology Corp. v. Walt Disney Imagineering , PICS NO. 03-1547, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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