I believe that Sammons would be the party to file an interlocutory appeal because his complaint is jurisdictional in nature. Jurisdiction is often the rationale for many such predecisional appeals because any concluded end-ruling could prejudice an appeal's outcome. This effectively would serve to stall all other actions until the jurisdiction question is resolved. The U.S. could not file such an appeal because it never raised jurisdiction, but would fare better by letting Sammons take the lead on this. I say that because should Sammons prevail, it would be like hitting the reset button all over again and place a new court and judge in the discovery debate and possibly more favorable ruling than a rubber stamp of the plaintiff's original motion.
Besides jurisdictional basis, interlocutory appeals also can be favored when a defendant is citing immunity claims which certainly could be applied to disallowance of judicial review under the law as specified under HERA. I think this government option would be held in reserve for round #2, though only a portion of the motion to dismiss seems to hinge on any immunity claim under HERA. Much tougher sell to the court.
I still believe a stay motion will be the next development, unless a reply on the order regarding plaintiff legal costs on the Motion to Compel comes out first. Very interesting to watch this play out. This playbook is not out of freshman year law study.
JMHO.
