Discovery

The thing about discovery is you don’t even know I’m doing it, do you?  This mystical part of being a lawyer that shows up in movies as the scenes with great music as Julia Roberts, Tom Cruise, and Matt Damon and Danny DiVito knock on peeling paint screen doors and take notes standing up with a pen and paper, click photos with the Argus manual focus lens slung around their neck, and meet up in single-story Main Street USA diners with stand-up-spoon coffee poured by a waitress giving the wink that she knows what’s going down is big. And maybe even sexy.

In real life, it’s less glamorous, but it does have its Christmas-like moments when the other side says something you didn’t even suspect but that goes some distance of helping you push your case closer to the finish line.

Gazzola v. Hochul has been my life, now for just more than two years.  A lawyer in private practice with one case.  Behind us, a 17-month run on a motion for preliminary injunction, from which the words of Judge Lynch of the Second Circuit Court of Appeals in Manhattan haunt and propel the work of the Plaintiffs and I.

“Say-so.” 

It was that sing-song, playground taunt that probably hurt us, emotionally, worse than the denial.  It wasn’t that the State or the 3-judge appellate panel had anything evidentiary or even tangible to contradict what we submitted, but Judge Lynch – with his half glasses half way down his nose and his gaze steadily upon me during oral arguments – came to life off the page of the written decision with just that:  “say-so.”

“Other than the say-so of the Plaintiffs…”

And with that would-be-snide-except-he’s-a-New-Yawker, what he said was: come back after you get your evidence admitted.  I don’t want forecasts and estimates of the impact of the new laws upon federally-licensed dealers in firearms with business premises here in the Empire State.  I want evidence.  If you can produce it, then I’m going to give the rather significant relief you seek my full consideration.

Like every school teacher the Plaintiffs and I ever had growing up, Judge Lynch’s words got right between our ribs.  The teacher who said, “I know you can do better than this.  Try harder next time. B+”  The coach who said, “I know you can run faster than that!  What did you eat for breakfast?  Rocks?”  The secretary, staged in front of the principal’s office, with that sweet, closed-lip smile of encouragement that there would be a dressing-down, but it would be okay, if we could just hang our head today and pick up our chin, tomorrow.

I am proud of the Plaintiffs.  Nadine, Seth, Craig, Nick, Michael, Jim, Christopher, John A., and Bob.  I lucked out when they said yes to the blind date of civil litigation, fall of 2022.  I got the Chicago Bulls dream team with Jordan.  They have been working non-stop on every ask I have made of them since July, when our case turned the corner from the motion into discovery.

They’ve had to find receipts, some from years ago.  Call contractors.  Talk contractors into written estimates that would get circulated in litigation.  Do math and more math.  Go out and find things like the unbreakable display case with steel framing, and then get that priced out the specifications of their stores.  Track down customers who constantly say they’re not going to do a background check for ammunition and ask if they would say that in a court of law.

We’ll be on discovery for about nine months.  Our first transmission of papers will go to the State’s attorneys in a matter of days.  Then, in general, you can think of us on 30-day cycles of either making demands or responding to demands.  With any luck, if counsel for both parties can stay level-headed about it all, depositions of the Plaintiffs might start in February, which would make Defendants perhaps April.

We still need money.  What litigant doesn’t?  I bought a third printer last month for $5, a Lexmark behemoth of office sell-off, and Bubba (literally) my tech guy at the beach, got it humming for $80.  It came with three new-in-box, industrial grade toners.  Good thing, too.  Yesterday, my newer Xerox came to a hard STOP because it was out of toner, with only about 30 pages of warning.  An hour later, I spent $402 on the high-capacity toner via Staples.  (Xerox has it on their website at $313, but they’re “out of stock.”)  Just in two weeks of producing probably half of the first round of discovery, I’m three reams of paper down. (I do still have seven reams in the ready, and expect to use it all by end September.)

None of this will be filed into the court system.  Discovery goes on quietly, unless there’s a motion, which, I would point out, federal court rules and local court supplemental rules and judges through their own clear voices emphasize is not to be done unless absolutely necessary.

Once this first round goes out, I can start to tell you more about how these new (2022) laws are hurting our industry of small, independent retail shop owners with federal licenses, here in New York.  How nearly 300 such shops have either prematurely terminated or otherwise not renewed their federal licenses through the ATF since the new laws were signed in June 2022.  And who those men and women are and what this will mean for you, the individual, if this pace of losing approximately 15 dealers per month, continues.

For now, it’s time to turn on the Lexmark, and progress discovery production, here in the ADK mountains, where the word “say-so,” has its echo.