This is why Orly believes that she has permission to begin discovery. http://www.scribd.com/doc/19548434/KEYES-v-OBAMA-57-ORDER-SETTING-SCHEDULING-CONFERENCE-FOR-1052009-at-830-AM
Yes, the Motion to Dismiss is an attempt to derail the following passage in the order Orly is attempting to go forward with:
“Unless there is a likelihood that upon motion by a party the Court would order that any or all discovery is premature, the Court encourages the parties to begin discovery before the Scheduling Conference. The parties shall comply fully with the letter and spirit of Rule 26(a) and thereby obtain and produce most of what would be produced in the early stages of discovery.”
It looks like this order is a boilerplate order for this court that authorizes Orly to “begin” full-bore discovery now. Judge Carter said in open court that there is NOT a likelihood for dismissal which I interprete as also meaning there is NOT “a likelihood that upon motion by a party the Court would order that any and all discovery is premature”.