PHILADELPHIA—In a surprising ruling by U.S. District Judge Michael Baylson, both plaintiffs and the government in the case of Free Speech Coalition, et al v. Holder, which challenges the federal recordkeeping and labeling law 18 U.S.C. §2257 on several grounds, will have to complete all of their pretrial discovery—interviewing witnesses, answering "interrogatories," exchanging documents and taking depositions—by April 30 at the latest, with trial of the issues to commence just over one month later on June 3.
The court noted, in its Scheduling Order, that each side had said that it expected that it could present its case over five days, with the judge allowing one day each for rebuttal and, if necessary, sur-rebuttal.
The court's Order appears to have been at least partly in response to the government's Motion, filed on March 1, requesting a 90-day extension of time for discovery, and for leave for the defendant to conduct more than the court's previously set limit of ten depositions.
"Because there are twelve plaintiffs in this case, each asserting a separate as-applied First Amendment claim, because one of the organizational plaintiffs also purports to raise a Fourth Amendment claim based on inspections that occurred of at least twelve different companies, and because plaintiffs have identified additional individuals as potential witnesses, leave to conduct depositions of each of these plaintiffs, entities, and potential witnesses is warranted, and additional time is required to complete the contemplated discovery," wrote U.S. Attorney Kathryn L. Wyler and her colleagues.
At that point, according to the judge's Order, no depositions on either side had been taken.
Free Speech Coalition and the other plaintiffs had not opposed this Motion, in part because they have their own discovery to complete—for instance, the government has yet to turn over the FBI's reports of 2257 inspections done of various adult content producers from 2006 and earlier—and in part because the organization is perilously close to running out of money to fund the lawsuit. Also, one of the experts FSC attorney J. Michael Murray had contacted to prepare a report on how much actual child pornography versus how much adult porn with young-looking performers would be affected by 2257's recordkeeping mandates was forced to drop out of the suit, leaving Murray and his associates scrambling to replace her with an equally qualified candidate who could complete the project in the eight days left before the report has to be filed with the judge and opposing counsel!
"This lawsuit is our last bite at the apple," reminded Free Speech CEO Diane Duke. "We can't go back and litigate this issue again, so this is it, folks. We have a strong case, we have strong attorneys, but we are in the midst of discovery, and the government is asking for everything, so it's very expensive, and Free Speech Coalition does not have the funds to fund this litigation without industry support. Right now, with the Obama administration in office, people are feeling comfortable, but if this law were to go into full effect, which it will if we're forced to drop this lawsuit, inspections could happen again at any point, and if producers aren't keeping records now, or not keeping them in the form approved by the government, they're going to be responsible for keeping those records today and for the forseeable future—or they're going to wind up in prison."
Needless to say, this plea for donations comes at a time when the adult industry is being besieged from all sides, the most pressing matter being the lawsuit against Los Angeles County's Measure B, which despite it being pressed by one fairly well-funded company (Vivid), will also likely need additional funds to see the suit to its conclusion.
But the simple fact is, if FSC and the other plaintiffs are forced to abandon their lawsuit at this late date, it will be a disaster for every content producer in the country, not just those in the L.A. area. And as everyone should know by now, lawsuits don't come cheap, easily running into the hundreds of thousands of dollars—as the 2257 suit already has.
Donations to help keep the adult industry's 2257 lawsuit alive can be made here.
