Case: 23-50224 Document: 64 Page: 1 Date Filed: 05/10/2023
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`
`
`No. 23-50224
`In the United States Court of Appeals for the Fifth Circuit
`_____________
`
`Leila Green Little; Jeanne Puryear; Kathy Kennedy; Rebecca
`Jones; Richard Day; Cynthia Waring; Diane Moster,
`Plaintiffs-Appellees,
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`
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`
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`
`
`v.
`Llano County; Ron Cunningham, in his official capacity as
`Llano County Judge; Jerry Don Moss, in his official capacity as
`Llano County Commissioner; Peter Jones, in his official
`capacity as Llano County Commissioner; Mike Sandoval, in his
`official capacity as Llano County Commissioner; Linda
`Raschke, in her official capacity as Llano County
`Commissioner; Amber Milum, in her official capacity as Llano
`County Library System Director; Bonnie Wallace, in her
`official capacity as Llano County Library Board Member;
`Rochelle Wells, in her official capacity as Llano County
`Library Board Member; Rhoda Schneider, in her official
`capacty as Llano County Library Board Member; Gay Baskin, in
`her official capacity as Llano County Library Board Member,
`Defendants-Appellants.
`
`
`
`
`
`
`_____________
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`
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`
`
`On Appeal from the United States District Court
`for the Western District of Texas
`Case No. 1:22-cv-424-RP
`_____________
`
`Motion To Stay District-Court Proceedings
`Pending Appeal
`_____________
`
`
`Jonathan F. Mitchell
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
`(512) 686-3940 (phone)
`(512) 686-3941 (fax)
`jonathan@mitchell.law
`
`Counsel for Defendants-Appellants
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`

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`Case: 23-50224 Document: 64 Page: 2 Date Filed: 05/10/2023
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`Certificate of Interested Persons
`Counsel of record certifies that the following persons and entities as described
`in the fourth sentence of Fifth Circuit Rule 28.2.1 have an interest in the outcome
`of this case. These representations are made in order that the judges of this Court
`may evaluate possible disqualification or recusal.
`
`Plaintiffs’ Counsel
`Ellen V. Leonida
`Matthew Borden
`J. Noah Hagey
`Max Bernstein
`Ellis E. Herington
`Marissa Benavides
`BraunHagey & Borden LLP
`
`Ryan A. Botkin
`Katherine P. Chiarello
`María Amelia Calaf
`Wittliff | Cutter PLLC
`
`Defendants’ Counsel
`Jonathan F. Mitchell
`Mitchell Law PLLC
`
`Dwain K. Rogers
`Matthew L. Rienstra
`Llano County Attorney’s Office
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`
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`Plaintiffs
`• Leila Green Little
`• Jeanne Puryear
`• Kathy Kennedy
`• Rebecca Jones
`• Richard Day
`• Cynthia Waring
`• Diane Moster
`
`
`
`Defendants
`• Llano County,
`• Ron Cunningham
`• Jerry Don Moss
`• Peter Jones
`• Mike Sandoval
`• Linda Raschke
`• Amber Milum
`• Bonnie Wallace
`• Rochelle Wells
`• Rhonda Schneider
`• Gay Baskin
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`
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`
`
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`
`
`
`
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`
`
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`
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`
`
` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchell
`Counsel for Defendants-Appellants
`
`i
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`

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`Case: 23-50224 Document: 64 Page: 3 Date Filed: 05/10/2023
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`Table Of Contents
`Certificate of interested persons ............................................................................... i
`Table of contents ..................................................................................................... ii
`Table of authorities ................................................................................................ iii
`Argument ................................................................................................................. 5
`I. The defendants-appellants have made a strong showing of likely
`success on appeal ........................................................................................... 6
`A. The defendants cannot “violate” the plaintiffs’ First Amendment
`rights when the disputed books remain available to them through
`Llano Library’s in-house checkout system ................................................ 6
`B. Content and viewpoint discrimination are permissible and
`inevitable when weeding library materials ................................................. 7
`II. The defendants-appellants will suffer irreparable harm absent a stay of
`district-court proceedings ............................................................................ 10
`III. A stay of the district-court proceedings will not substantially injure the
`plaintiffs or any other party interested in the proceeding ............................. 14
`IV. A stay of the district-court proceedings is in the public interest ................... 15
`Conclusion ............................................................................................................. 17
`Certificate of conference ........................................................................................ 18
`Certificate of service ............................................................................................... 19
`Certificate of compliance ....................................................................................... 20
`Certificate of electronic compliance ....................................................................... 21
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`ii
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`Case: 23-50224 Document: 64 Page: 4 Date Filed: 05/10/2023
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`Table of Authorities
`
`Cases
`Board of Education v. Pico, 457 U.S. 853 (1982) ............................................... 8, 9, 10
`Campbell v. St. Tammany Parish School Board,
`64 F.3d 184 (5th Cir. 1995) ................................................................................ 8, 9
`Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005) ................................................... 1, 8, 9
`Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) ..................................... 10
`Earl v. Boeing Co., 21 F.4th 895 (5th Cir. 2021) .............................................. 5, 13, 15
`Nken v. Holder, 556 U.S. 418 (2009) ......................................................................... 5
`United States v. American Library Ass’n Inc., 539 U.S. 194 (2003) ..................... 1, 8, 9
`
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`
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`
`
`
`
`iii
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`

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`Case: 23-50224 Document: 64 Page: 5 Date Filed: 05/10/2023
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`
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`On Friday, May 5, 2023, a motions panel of this Court granted our motion to
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`expedite the appeal from the district court’s preliminary injunction and instructed
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`the clerk to expedite the appeal “to the next available oral argument calendar.” See
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`Order, ECF No. 58 (attached as Exhibit 1). Now that the appeal has been expedited,
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`the defendants-appellants respectfully ask this Court to stay discovery and further
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`proceedings in the district court until this Court rules on the pending appeal. The
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`defendants-appellants also respectfully request that the Court rule on this motion
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`by Wednesday, May 17, 2023.
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`A stay of the district-court proceedings is appropriate for numerous reasons.
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`First, the parties are in the midst of expensive and costly discovery that is premised
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`on the plaintiffs’ belief that the First Amendment prohibits public librarians from
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`engaging in “content discrimination” or “viewpoint discrimination” when weeding
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`books.1 The district court agreed with the plaintiffs’ stance in its order granting the
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`preliminary injunction. ROA.3523 (“[T]he First Amendment prohibits the removal
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`of books from libraries based on either viewpoint or content discrimination.”). The
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`defendants vigorously dispute this and are asking this Court to hold that the First
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`Amendment allows public librarians to consider the content and viewpoint of books
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`when making weeding decisions. See Chiras v. Miller, 432 F.3d 606, 614 (5th Cir.
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`2005) (“‘Public library staffs necessarily consider content in making collection de-
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`cisions and enjoy broad discretion in making them.’” (quoting United States v.
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`American Library Ass’n Inc., 539 U.S. 194, 205 (2003) (plurality opinion of
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`1. ROA.67 (accusing the defendants of “unconstitutional content-based and view-
`point-based discrimination in violation of Plaintiffs’ First Amendment rights.”).
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`1
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`

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`Case: 23-50224 Document: 64 Page: 6 Date Filed: 05/10/2023
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`Rehnquist, C.J.))); Mot. to Stay Prelim. Inj., ECF No. 14-1, at 10–12. The defend-
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`ants are also asking this Court to rule that the defendants cannot be “violating” the
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`plaintiffs’ First Amendment right to “access and receive information” when each of
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`the 17 disputed books remains available for the plaintiffs to check out at Llano Li-
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`brary through the in-house checkout system. See Mot. to Stay Prelim. Inj., ECF No.
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`14-1, at 7–9.
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`It will serve judicial economy and conserve the parties’ resources if this Court
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`postpones discovery, including expert discovery and Daubert motions, until after
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`the merits panel resolves these issues in the pending expedited appeal. The parties
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`have already spent hundreds of hours in discovery as the plaintiffs attempt to divine
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`Amber Milum’s subjective motivations for weeding the 17 disputed books, and the
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`plaintiffs have retained two expert witnesses who accuse Milum of bad faith and
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`unprofessionalism in her weeding decisions. ROA.3145-3147. But these factual dis-
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`putes could be rendered moot by the pending decision from this Court. And regard-
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`less of how the merits panel rules, it would be better for the parties to conduct dis-
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`covery with knowledge of this Court’s ruling on the disputed legal issues rather
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`than awaiting its decision after the close of discovery. The merits panel’s ruling on
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`the First Amendment issues will determine how the parties conduct their expert
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`depositions and argue their Daubert motions. And it would be wasteful to have the
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`parties barrel ahead with expert discovery when this Court could pull the rug from
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`under the experts’ analysis at any moment between now and the scheduled trial
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`date of October 16, 2023.
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`2
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`

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`Case: 23-50224 Document: 64 Page: 7 Date Filed: 05/10/2023
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`For the same reasons, this Court should postpone summary-judgment briefing
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`and trial until after the merits panel rules on the law. The motions panel has already
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`expedited the appeal “to the next available oral argument calendar,”2 which means
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`that the merits panel’s ruling is likely to drop before the district court enters final
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`judgment. Yet a ruling from the merits panel that disagrees with the district court’s
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`analysis will upend any summary-judgment briefing or trial proceedings premised
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`on the views expressed in the district court’s preliminary-injunction order of March
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`30, 2023. ROA.3507-3532. The sounder approach is to await the merits panel’s rul-
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`ing and allow the parties to litigate summary-judgment issues with knowledge of
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`this Court’s views, and for trial to be conducted after this Court has weighed in on
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`the disputed First Amendment issues.
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`The Court should stay discovery for an additional reason: The parties will be
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`writing their appellate briefs and preparing for oral argument on a highly expedited
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`schedule, and need to devote their attention to those appellate-court tasks during
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`the months of May and June. Proceeding on the current district-court schedule
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`with expert depositions and Daubert motions in May,3 summary-judgment briefing
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`in June and July,4 and trial preparation throughout the summer5 will distract coun-
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`2. Order, ECF No. 58 (attached as Exhibit 1).
`3. ROA.742 (scheduling order requiring parties to complete expert discovery by
`May 19, 2023, with Daubert motions due 11 days after the expert’s deposition).
`4. ROA.742-743 (scheduling order requiring defendants’ motion for summary
`judgment to be filed by June 9, 2023; plaintiffs’ response and cross-motion for
`summary judgment to be filed by June 23, 2023, the defendants’ response to the
`cross-motion and reply brief in support of their motion for summary judgment
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`3
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`

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`Case: 23-50224 Document: 64 Page: 8 Date Filed: 05/10/2023
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`sel from the appeal and hinder their ability to present this Court with a clear, vigor-
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`ous, and adversarial presentation of the facts and law. At the same time, the pend-
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`ing expedited appeal and its tight briefing deadlines will make it difficult for counsel
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`to devote careful attention to their discovery obligations and district-court filings as
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`the appeal quickly unfolds. That is especially true on the defendants-appellants’
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`side, where their lead attorney works as a solo practitioner and is handling all brief-
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`writing and oral-argument responsibilities in this Court as well as motions practice
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`and expert discovery in the district court. See Mitchell Decl., ¶ 10 (attached as Ex-
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`hibit 3).
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`Finally, the plaintiffs will not be prejudiced by a stay of discovery and further
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`proceedings in the district court because they have already obtained a preliminary
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`injunction that restores the 17 disputed books to the library shelves and catalogs,6
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`and the motions panel allowed that preliminary injunction to remain in place while
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`the defendants pursue their expedited appeal. See Order, ECF No. 58 (attached as
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`Exhibit 1) (“IT IS FURTHER ORDERED that Appellants’ Opposed Motion to
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`stay the preliminary injunction pending appeal is CARRIED WITH THE
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`CASE.”). The preliminary injunction eliminates any possibility that the plaintiffs
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`might suffer a violation of their constitutional rights or other forms of irreparable
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`to be filed by July 7, 2023; and the plaintiffs’ reply brief in support of their
`cross-motion to be filed by July 21, 2023).
`5. ROA.743 (scheduling order setting a trial date of October 16, 2023).
`6. ROA.3531-3532.
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`4
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`Case: 23-50224 Document: 64 Page: 9 Date Filed: 05/10/2023
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`harm during the appeal, and our requested stay of proceedings will not disturb the
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`preliminary injunction or its protections in any way.7
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`The defendants-appellants respectfully request that the Court rule on this mo-
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`tion by Wednesday, May 17, if possible, so that the parties will know whether they
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`can cancel the depositions of the plaintiffs’ experts and avoid litigating Daubert mo-
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`tions and ongoing discovery issues. See Mitchell Decl. ¶ 11 (attached as Exhibit 3).
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`A ruling by May 17 will also enable the parties to focus their efforts on briefing and
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`preparing for argument in the expedited appeal. See id. at ¶ 12.
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`ARGUMENT
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`When deciding whether to stay proceedings in the district court pending ap-
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`peal, this Court employs the traditional four-part test from Nken v. Holder, 556 U.S.
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`418 (2009): “(1) whether the stay applicant has made a strong showing that he is
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`likely to succeed on the merits; (2) whether the applicant will be irreparably injured
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`absent a stay; (3) whether issuance of the stay will substantially injure the other par-
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`ties interested in the proceeding; and (4) where the public interest lies.’” Id. at 426
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`(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see also Earl v. Boeing Co.,
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`21 F.4th 895, 898 (5th Cir. 2021) (using the four-part Nken test when deciding
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`whether to stay district-court proceedings pending appeal). All four factors support
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`a stay of proceedings.
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`7. We have already moved in the district court for a stay of discovery and further
`proceedings pending the outcome of this appeal. See Opposed Motion to Stay
`Case, ECF No. 168. We do not, however, expect the district court to grant the
`motion.
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`5
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`

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`Case: 23-50224 Document: 64 Page: 10 Date Filed: 05/10/2023
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`I. The Defendants-Appellants Have Made A Strong
`Showing Of Likely Success On Appeal
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`The facts and procedural history of this case are described in our previous mo-
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`tion to stay the preliminary injunction and expedite the appeal. See Motion to Stay
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`Prelim. Inj., ECF No. 14-1, at 2–6. Our previous motion also explains why the de-
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`fendants-appellants are likely to succeed on appeal. See id. at 6–14. We incorporate
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`that discussion by reference and emphasize two fatal problems with the plaintiffs’
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`First Amendment claims that counsel in favor of staying discovery and summary-
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`judgment briefing while this appeal proceeds. First, the plaintiffs cannot possibly
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`show that the defendants are violating their “right to access and receive infor-
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`mation” under the First Amendment because every one of the 17 disputed books
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`remains available for the plaintiffs to check out through the Llano Library’s in-
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`house checkout system. ROA.3463-3465. Second, the plaintiffs’ (and the district
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`court’s) belief that the First Amendment forbids “viewpoint discrimination” or
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`“content discrimination” in public-library weeding decisions is incompatible with
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`the precedent of this Court and is manifestly untenable, as content and viewpoint
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`consideration are both inevitable and permissible when weeding library materials.
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`A. The Defendants Cannot “Violate” The Plaintiffs’ First
`Amendment Rights When The Disputed Books Remain Available
`To Them Through Llano Library’s In-House Checkout System
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`After the plaintiffs sued and accused the defendants of violating their First
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`Amendment rights by weeding 17 books from the Llano Library shelves, the Llano
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`Library accepted a donation of the 17 disputed books and made them available for
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`the plaintiffs to read and check out through the library’s “in-house checkout” sys-
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`6
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`Case: 23-50224 Document: 64 Page: 11 Date Filed: 05/10/2023
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`tem.8 See Mot. to Stay Prelim. Inj., ECF No. 14-1, at 3–4 (explaining the “in-house
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`checkout” system at Llano Library). The defendants cannot be “violating” the
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`plaintiffs’ supposed First Amendment “right to access and receive information,” as
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`each plaintiff is aware of the in-house checkout system and the availability of the
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`disputed books,9 and the plaintiffs have the same ability to check out the disputed
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`books from Llano Library that they had before the books were weeded.
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`To be sure, the plaintiffs would prefer that the 17 disputed books be returned to
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`the library shelves and catalog rather than offered through the in-house checkout
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`system, which is why they refuse to accept this arrangement and have continued lit-
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`igating in the hope of forcing the defendants to restore the books to their previous
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`location. But the plaintiffs cannot plausibly assert that the defendants are violating
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`their First Amendment rights when each of the disputed books remains available to
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`them at Llano Library through the in-house checkout system.
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`B. Content And Viewpoint Discrimination Are Permissible And
`Inevitable When Weeding Library Materials
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`The district court agreed with the plaintiffs’ claim that the First Amendment
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`prohibits content and viewpoint discrimination in public-library weeding decisions.
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`ROA.3523 (“[T]he First Amendment prohibits the removal of books from libraries
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`based on either viewpoint or content discrimination.”); ROA.3526 (“Content-based
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`8. See First Milum Decl., ECF No. 49-1, at ¶¶ 10–11 (ROA.673-674); Second Mi-
`lum Decl., ECF No. 53, at ¶¶ 3–4 (ROA.720-721); Third Milum Decl., ECF
`No. 100-5, at ¶¶ 5–8 (ROA.2497); Stipulation of Undisputed Facts, ECF No.
`126, at ¶¶ 1–7 (ROA.3463-3465).
`9. See Stipulation of Undisputed Facts, ECF No. 126, at ¶¶ 1–7 (App. 491–493).
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`7
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`

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`Case: 23-50224 Document: 64 Page: 12 Date Filed: 05/10/2023
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`restrictions on speech are presumptively unconstitutional and subject to strict scru-
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`tiny.”). This stance is unlikely to survive appeal, as it contradicts the precedent of
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`this Court and imposes intolerable burdens on librarians, who must occasionally
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`weed books for content or viewpoint reasons.
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`This Court has recognized that “‘[p]ublic library staffs necessarily consider
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`content in making collection decisions and enjoy broad discretion in making
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`them.’” Chiras v. Miller, 432 F.3d 606, 614 (5th Cir. 2005) (quoting United States v.
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`American Library Ass’n Inc., 539 U.S. 194, 205 (2003) (plurality op.)). It has also
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`recognized that “forum analysis and heightened judicial scrutiny are . . . incompati-
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`ble with the discretion that public libraries must have to fulfill their traditional mis-
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`sions.’” Id. (quoting American Library, 539 U.S. at 205 (plurality op.)). The district
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`court’s stance is incompatible with these principles. The plaintiffs have tried to de-
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`fend the district court by citing cases that disapprove of content and viewpoint dis-
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`crimination when the government restricts or regulates speech, but weeding a li-
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`brary book does not restrict or regulate speech; it merely determines the optimal
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`allocation of a library’s limited shelf space.
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`The plaintiffs and the district court rely on Board of Education v. Pico, 457 U.S.
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`853 (1982), and Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir.
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`1995). ROA.3523 (citing Pico to support its claim that “the First Amendment pro-
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`hibits the removal of books from libraries based on either viewpoint or content dis-
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`crimination.”); ROA.3526 (holding that Campbell is incompatible with the defend-
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`ants’ claim that “‘content discrimination is permissible and inevitable in library-
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`book selection.’”). But Justice Brennan’s plurality opinion in Pico acknowledges
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`8
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`Case: 23-50224 Document: 64 Page: 13 Date Filed: 05/10/2023
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`that content discrimination is permissible in library-book selection, and it allows li-
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`braries to remove books that are “pervasively vulgar” or lack “educational suitabil-
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`ity.” Pico, 457 U.S. at 871 (plurality op.). Campbell re-affirms the Pico plurality’s al-
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`lowance for content-based weeding. See Campbell, 64 F.3d at 188–89 (“The Court
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`in its plurality opinion implicitly recognized . . . that an unconstitutional motivation
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`would not be demonstrated if the school officials removed the books from the pub-
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`lic school libraries based on a belief that the books were ‘pervasively vulgar’ or on
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`grounds of ‘educational suitability.’”). The Pico plurality opinion says only that
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`school libraries may not weed books “in a narrowly partisan or political man-
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`ner”10—a far cry from the categorical prohibition on viewpoint or content discrimi-
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`nation that the district court endorsed.
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`More importantly, a prohibition on content-based weeding decisions is incom-
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`patible with Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005), which recognizes that
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`“‘[p]ublic library staffs necessarily consider content in making collection decisions
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`and enjoy broad discretion in making them.’” Id. at 614 (emphasis added) (quoting
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`United States v. American Library Ass’n Inc., 539 U.S. 194, 205 (2003) (plurality
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`op.). The district court and the plaintiffs try to get around Chiras by claiming that it
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`applies only to acquisition (not removal) decisions at school libraries, but nothing in
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`the quoted passages from Chiras support these distinctions. It is also nonsensical to
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`give public libraries “broad discretion” when acquiring new books while forbidding
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`10. See Pico, 457 U.S. at 870 (plurality op.); id. at 872 (“[S]chool boards may not
`remove books from school library shelves simply because they dislike the ideas
`contained in those books.”).
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`9
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`

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`Case: 23-50224 Document: 64 Page: 14 Date Filed: 05/10/2023
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`them to consider content or viewpoints when weeding. Library shelf space is lim-
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`ited, and older books must be weeded so that new materials can be added. A library
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`must determine whether the content of the new material is superior to the content
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`being replaced, and this comparison requires librarians to consider the content and
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`viewpoints of the incoming and existing materials.
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`Finally, neither the plaintiffs nor the district court denies that library-weeding
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`manuals compel librarians to engage in content and viewpoint discrimination when
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`weeding books. See, e.g., Mot. for Stay, ECF No. 14-1, at 12; CREW Manual, ECF
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`No. 117-2 (ROA.3172-3279); id. at 19 (ROA.3191) (listing “poor content” as grounds
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`for weeding, including “[m]aterial that contains biased, racist, or sexist terminology
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`or views” (emphasis added)). Libraries may establish standards for the material on
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`their shelves, and there is nothing problematic (or unconstitutional) with weeding
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`books that deny the Holocaust, declare that the earth is flat, or peddle crackpot or
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`discredited conspiracy theories. Nor is there anything wrong with the content-
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`based weeding of “pervasively vulgar” books, or material that lacks “educational
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`suitability.” Pico, 457 U.S. at 871 (1982) (plurality op.).
`II. The Defendants-Appellants Will Suffer Irreparable
`Harm Absent A Stay Of District-Court Proceedings
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`The defendants-appellants will suffer irreparable harm absent a stay of proceed-
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`ings because they will incur additional litigation costs related to fact discovery, ex-
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`pert discovery, Daubert motions, summary-judgment briefing, and trial prepara-
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`tion—and they cannot recover these costs even if they prevail in the litigation. See
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`Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 (1978) (forbidding defend-
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`10
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`Case: 23-50224 Document: 64 Page: 15 Date Filed: 05/10/2023
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`ants to recover attorneys’ fees under 42 U.S.C. § 1988, even when they qualify as
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`“prevailing parties,” unless the plaintiffs’ action was “frivolous, unreasonable, or
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`without foundation”); Cunningham Decl. ¶ 5 (attached as Exhibit 2).
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`The plaintiffs’ litigation tactics and discovery demands have imposed consider-
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`able costs on Llano County and its taxpayers. See Cunningham Decl. ¶ 4 (“Llano
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`County has already spent more than $150,000 in attorneys’ fees and expenses de-
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`fending this action”); id. at ¶ 6. After filing their complaint, the plaintiffs demand-
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`ed expedited discovery and deposed defendants Amber Milum, Jerry Don Moss,
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`Bonnie Wallace, and Rochelle Wells. ROA.429-440; Mitchell Decl. ¶ 5 (attached as
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`Exhibit 3); Exhibit 7 (notices of deposition). The plaintiffs also demanded e-mails
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`from every conceivable e-mail account, including personal e-mail accounts of for-
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`mer librarians that the defendants do not have passwords for, and they insisted that
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`every e-mail be produced in its native format rather as a PDF. See Mitchell Decl. ¶ 4
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`(attached as Exhibit 3). The plaintiffs’ demands for native-format e-mails over-
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`whelmed the resources of Llano County, which does not have a full-time IT person
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`on staff, and the defendants are still struggling to respond to the plaintiffs’ e-mail
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`demands. See id.
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`On March 1, 2023, shortly before the close of fact discovery on March 31, 2023,
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`the plaintiffs scheduled 19 depositions during the last two weeks of discovery—
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`including second depositions of Milum, Wallace, and Moss. See Mitchell Decl. ¶ 6
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`(attached as Exhibit 3); Exhibit 8 (notices and subpoenas). The plaintiffs did not
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`11
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`Case: 23-50224 Document: 64 Page: 16 Date Filed: 05/10/2023
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`move for leave of court to exceed the ten-deposition limit until March 20, 2023,11
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`and the district court did not grant their motion until March 29, 2023,12 only two
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`days before the close of fact discovery. But the plaintiffs asked the district court to
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`extend the fact-discovery deadline13 and the district court granted their request,14
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`giving the plaintiffs an additional two months to conduct depositions that they were
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`unable to squeeze in before the deadline of March 31, 2023.
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`The defendants will also incur significant costs from the upcoming expert dis-
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`covery. The plaintiffs have proffered not one but two expert reports that accuse
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`Amber Milum of bad faith and unprofessionalism. ROA.3145-3147. One of the ex-
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`perts (Belinda Boon) is located in Kent, Ohio, and the other (David Lankes) is lo-
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`cated in Austin, Texas. The defendants’ lead counsel, who will depose each of the
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`experts, is located on the west coast and will need to travel separately to conduct
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`each deposition. See Mitchell Decl. ¶ 8 (attached as Exhibit 3). The defendants
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`asked the plaintiffs’ attorneys to make their experts available for depositions on
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`back-to-back days to reduce the defendants’ travel burdens and discovery costs, but
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`the plaintiffs refused to accommodate this request. See id.; see also Exhibit 5 (e-mail
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`exchange between plaintiffs’ counsel and defendants’ counsel).
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`The defendants also asked the plaintiffs to reschedule the deposition of the de-
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`fendants’ expert Peter Wood, which was held in New York on May 8, 2023, to May
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`
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`11. ROA.3294-3305.
`12. ROA.3492-3493.
`13. ROA.3569-3580.
`14. See Exhibit 4.
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`12
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`

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`Case: 23-50224 Document: 64 Page: 17 Date Filed: 05/10/2023
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`17 or May 18 because the defendants were seeking a stay of the district-court pro-
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`ceedings and were hoping to obtain a ruling on that request before Dr. Wood’s dep-
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`osition, which could obviate the need for the deposition. See Mitchell Decl. ¶ 9 (at-
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`tached as Exhibit 3). The plaintiffs flatly refused to reschedule the deposition of Dr.
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`Wood, even though they did not claim that they were unavailable to depose him on
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`May 17 or May 18, and even though the defendants offered to pay any non-
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`refundable costs that the plaintiffs might have incurred when preparing for Dr.
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`Wood’s deposition. See id.; see also Exhibit 6 (e-mail exchange between plaintiffs’
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`counsel and defendants’ counsel).
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`We are not suggesting that plaintiffs’ counsel are acting unlawfully or unethical-
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`ly by making discovery expensive and inconvenient for Llano County. The rules of
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`civil procedure establish a liberal discovery regime that enables litigants to impose
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`heavy costs on their adversaries with depositions and document requests—and the
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`duty of zealous representation may occasionally compel an attorney to bombard the
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`other side with extensive discovery demands in the hopes of forcing settlement or
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`capitulation. But this Court must consider the extent of the unrecoverable costs
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`that will be inflicted on Llano County if the district-court proceedings are not
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`stayed pending appeal. See Earl v. Boeing Co., 21 F.4th 895, 900 (5th Cir. 2021)
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`(“[T]he public interest supports staying district court proceedings to avoid poten-
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`tially wasteful and unnecessary litigation costs where, as here, the appellant has
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`shown a substantial likelihood of success on appeal.”). The plaintiffs have sought to
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`maximize the defendants’ litigation costs throughout this litigation, which counsels
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`13
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`Case: 23-50224 Document: 64 Page: 18 Date Filed: 05/10/2023
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`in favor of staying discovery and further proceedings in the district court pending
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`the outcome of this expedited appeal. See id.
`III. A Stay Of The District-Court Proceedings Will
`Not Substantially Injure The Plaintiffs Or Any
`Other Party Interested In The Proceeding
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`A stay of the district-court proceedings will not “substantially injure” the plain-
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`tiffs or any other party interested in the proceeding because the district court’s pre-
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`liminary injunction requires the 17 disputed books to remain in the library shelves
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`and catalog until the appeal is resolved,15 and the motions panel has left that prelim-
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`inary injunction in place while the defendants pursue their expedited appeal. See
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`Exhibit 1 (“IT IS FURTHER ORDERED that Appellants’ Opposed Motion to stay
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`the preliminary injunction pending appeal is CARRIED WITH THE CASE.”). A
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`ruling from this Court that stays the district-court proceedings will not stay the pre-
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`liminary-injunction order, and that injunction will remain in effect until the merits
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`panel issues its ruling.
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`The only conceivable injury that the plaintiffs might encounter from a stay of
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`proceedings is that it will hinder their ability run up the defendants’ costs of de-
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`fending this lawsuit, as well as their attempts to moot the defendants’ expedited ap-
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`peal by fast-tracking the district-court proceedings to final judgment. Neither of
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`these considerations should receive solicitude in deciding whether to stay the dis-
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`trict-court proceedings. This Court has indicated its desire to rule quickly on the
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`defendants’ appeal by expediting it “to the next available oral argument calendar,”16
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`15. ROA.3531-3532.
`16. Order, ECF No. 58 (attached as Exhibit 1).
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`14
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`Case: 23-50224 Document: 64 Page: 19 Date Filed: 05/10/2023
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`and it should not empower a litigant to sabotage the ruling of the motions panel
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`(and waste the resources invested in an appeal) by triggering a race between the dis-
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`trict court and the Fifth Circuit. Nor should a court seek to accommodate tactics
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`that serve no apparent purpose other than to impose avoidable litigation costs on an
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`adversary. See Earl, 21 F.4th at 900 (“[T]he public interest supports staying district
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`court proceedings to avoid potentially wasteful and unnecessary litiga