UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Robert J. Camm, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 85-3844 ) Ralph E. Kennickell, Jr., et al., ) ) Defendants. ) ____________________________________) OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE Now before the Court is plaintiffs' motion to compel defendants to comply with their discovery requests. Upon consideration of the motion, the supporting and opposing legal memoranda, and the underlying law, the Court will grant plaintiffs' motion. Plaintiffs filed this suit charging defendants with several common law torts and violations of their rights under the First and Fifth Amendments as a result of their suspension and disbarment from doing business with the Government Printing Office. Thereafter, Anthony McMahon, one of the defendants, filed a counterclaim against plaintiffs, charging them with abuse of process, intentional infliction of emotional distress, and malicious prosecution. Very soon after the filing of this suit, the Court granted a motion filed by defendants for a protective order prohibiting all discovery in this case until the Court ruled on their immunity from suit. Thereafter, the Court dismissed all of the common law and constitutional tort claims against defendants on the ground that defendants were entitled to immunity. In addition, the Court dismissed McMahon's counterclaim for malicious prosecution because of his failure to plead special injury. As such, McMahon's counterclaims for abuse of process and intentional infliction of emotional distress are the only remaining live issues in this suit. The Court modified the protective order it had entered at the beginning of the case so as to allow discovery relevant to McMahon's counterclaim. On May 4, 1988, plaintiff served interrogatories on Charlie Peel, Jr., one of the defendants to this suit, and requested that he produce certain documents. Defendants did not comply with these discovery requests for several reasons. First, defendants contend that they need not respond to these discovery requests as the Court has already dismissed them from the suit. Second, defendants maintain that they are not obligated to respond to plaintiffs' discovery requests because they pertain to a counterclaim arising out of a Bivens action that was dismissed because of their immunity from suit. Finally, defendants assert that the discovery requests at issue are not relevant to McMahon's counterclaims and are, therefore, in violation of the Court's protective order. The Court will address each of these arguments in turn. To determine whether defendants are still parties to this suit, it is necessary to turn to Fed. R. Civ. P. 54(b) which provides: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment. In the absence of such determination and direction, any order or other form of decision, however, designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of the parties. Fed. R. Civ. P. 54(b)(emphasis added). The language of Rule 54 explicitly covers the scenario which is presently before the Court, namely whether a defendant remains a party to a suit even though all the claims against that defendant have been dismissed. The Rule clearly answers that question in the affirmative with one exception-the Court's express determination that there is no reason for delay in entering a judgment as to those claims. The Court has previously determined that several factors counsel against the entry of a judgment as to these claims at this juncture; these factors include the absence of economic injury to defendants, an appeal's inevitable interruption of the counterclaim proceedings, and the preference against piecemeal appeals.1 Accordingly, the Court concludes that defendants remain parties to this suit. As another ground for noncompliance with plaintiffs' discovery request, defendants assert that the reasoning underpinning the Court's protective order prohibiting discovery prior to the Court's determination of defendants' immunity from suit is equally applicable to the discovery that plaintiffs are now seeking. The Court disagrees. In general, qualified immunity shields "government officials performing discretionary functions...from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional standards of which a reasonable person would have known." Harlow v. Fitzgerald. 457 U.S. 800, 818 (1982). As a matter of general practice, courts should not allow the parties to engage in discovery prior to the resolution of the immunity question. Id. This is because deferral of discovery prior to the resolution of the immunity question "avoid[s] excessive interruption of government and permit[s] the resolution of many insubstantial claims on summary judgment." Id. The Court entered a protective order in the very early stages of this case in order to avoid potentially needless discovery prior to the Court's resolution of whether defendants were immune from suit. Immunity from suit is not a relevant consideration in examining the permissibility of the discovery plaintiffs are seeking in defending against McMahon's counterclaim; this is because the counterclaim is, in effect, a suit brought by a public official rather than a suit against a public official. The language in Harlow and its progeny explaining that "broad- ranging discovery" could be "peculiarly disruptive of effective government" does not suggest that public officials should be immune from discovery in all instances. Instead, Harlow and its progeny stand for the proposition that subjecting public officials to discovery on claims brought against them should be avoided when these claims can be resolved on summary judgment. Harlow's admonition against unnecessary discovery was not directed to instances where a public official is suing rather than being sued. Accordingly, the Court finds that the protective order in this case does not preclude the discovery that is being sought by plaintiffs. Finally, defendants assert that the discovery that plaintiffs are seeking is not relevant to the counterclaim and is, therefore, in violation of the Court's amended protective order. The Court is without a basis to evaluate defendants' concerns as to the relevancy of the requested discovery because defendants have only make a bald assertion that plaintiffs' discovery is not relevant. It has occurred to the Court that the amended protective order now in effect, which limits discovery to matters relevant to the counterclaim, is superfluous. The protective order does nothing more than give effect to the commands of Rule 26 of the Federal Rules of Civil Procedure which limits parties' discovery to matters that are relevant to the claims at issue.2 Accordingly, the Court will lift the protective order which is currently in effect. The Court will issue an Order of even date herewith memorializing these findings. February 24, 1989 CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE _______________ 1 See Court's Order of June 6, 1988. 2 Rule 26 provides in pertinent part: Parties may obtain discovery regarding any matter, no privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party... Fed. R. Civ. P. 26(b)(1) (emphasis added). Case law interpreting the meaning of the term "relevant," as used in Rule 26, will govern any disputes between the parties over whether particular discovery requests are relevant to McMahon's counterclaim.