MR. CONLEY: Your Honor, on the discovery issue, the petitioner's motion for limited discovery is inappropriate for multiple reasons. Setting aside the particulars of the discovery that is actually being sought as a procedural matter, discovery is presumptively improper in Article 78 proceedings. And under the CPLR an automatic stay is put in place when a party files a dispositive motion to dismiss under CPLR 3211. So, here, to direct discovery, the moving party, the petitioner, would have to demonstrate an ample need for the requested discovery that was both material and necessary to the claims being raised. The claims being raised here are that the Department of Financial Services exceeded the scope of its regulatory authority in promulgating challenge regulation and that that and that the regulation, certain aspects of its scope and design are arbitrary and capricious. In other words, the petitioner is raising pure questions of law that this Court can fully and fairly review by looking at the challenged regulation itself, the enabling legislation, the Financial Services Law and applicable precedent. Yet the petitioner is seeking a wide range of irrelevant information, including an order from the Court
compelling Paul Krugman, the Nobel Prize winning economist and New York Times columnist, to testify on the economic nature of Bitcoin; an order compelling the Department to produce an assortment of emails and other written documentation that was internally circulated over a three-year period; and an order directing the former superintendent, the head of the Department of Financial Services, to attend a deposition to be deposed on his internal thought processes leading up to the promulgation of the regulation. These requests are facially improper and inappropriate, Your Honor. And it's a quintessential example of a party seeking permission to go on a fishing expedition and find something of possible relevance that could salvage their claims. And the petitioner's request here should be denied.
What do you think ? Should it be denied ?Source Page 43 :
http://www.article78againstnydfs.com/docs/Index-101880-15/18-Hearing/01-Transcript-version.pdf
