ORDER

LEWIS A. KAPLAN, District Judge

Pending before the Court is a motion to dismiss in which certain defendants, in the most conclusory of terms, seek to raise a defense of qualified immunity. In the wake of unsuccessful prior efforts to stay all discovery in this action pending disposition of the motion, defendants, by letter dated September 10, 2002, have applied for a stay of discovery "against plaintiff and all defendants in regard to claims to which those defendants have asserted that the allegations of the complaint are insufficient as a matter of law to overcome their qualified immunity." (Schulze letter, Sept. 10, 2002, at 1) Plaintiff resists the application.

The first problem with the application, which the parties did not bring clearly to the Court's attention in the previous rounds of this bout, is the fact that the defendants, beginning in July 2001, voluntarily complied with at least some discovery requests for quite some time despite the fact that the failure to assert a defense of qualified immunity on behalf of at least some defendants with respect to some incidents would have been malpractice. By doing so, they arguably waived any immunity from discovery proceedings pending resolution of the defense that subsequently has been asserted. But the application suffers from another serious problem as well.

While it seems reasonably plain that an individual defendant on a claim as to which that defendant has a colorable qualified immunity defense ought not be subjected to discovery on that claim until the defense is resolved, defendants seek a far broader stay. This case involves over 60 defendants and a great many alleged incidents. No qualified immunity defense is asserted on behalf of approximately 18 of the defendants (Def. Mem. Ex. A), so none of them has any basis for avoiding discovery. Quite plainly, the State Department of Correctional Services ("DOCS") has no basis for avoiding discovery either (and defendants, at least now, do not claim otherwise). And the Court perceives no basis on which Defendant A, even if he has asserted a qualified immunity defense with respect to his own actions, should be broadly immune from discovery concerning the actions of other defendants, although the stay that defendants seek, if granted, apparently would preclude such discovery.

In the circumstances, the application is granted to this extent and this extent alone:

Pending the determination of the pending motion to dismiss, no individual defendant who has asserted a defense of qualified immunity shall be required to (a) produce documents that he has not previously agreed to produce or (b) answer deposition questions or interrogatories with respect to his own conduct and mental state, in each case in respect of any incident which is the basis of any claim against him and as to which he has asserted a defense of qualified immunity in Exhibit A to defendants' memorandum in support of the motion to dismiss.

Nothing herein stays any other discovery, whether against the individual defendants, the plaintiff, DOCS or any other person or entity subject to discovery.

SO ORDERED.