U.S. WeChat Users Alliance et al v. Trump et al
Filing
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Order by Magistrate Judge Laurel Beeler. In the attached order, the court denies the plaintiffs' request for expedited discovery. (lblc5S, COURT STAFF) (Filed on 9/10/2020)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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San Francisco Division
United States District Court
Northern District of California
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U.S. WECHAT USERS ALLIANCE, et al.,
Case No. 20-cv-05910-LB
Plaintiffs,
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DISCOVERY ORDER
v.
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Re: ECF No. 18
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DONALD J. TRUMP, et al.,
Defendants.
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INTRODUCTION
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The plaintiffs, who use the mobile-messaging application WeChat, challenge the
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constitutionality of Executive Order 13943, which — according to the plaintiffs — prohibits the
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use of WeChat starting on September 20, 2020.1 (The defendants contend at least in part that the
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issues are not ripe until the Secretary of Commerce issues a final order.2) The plaintiffs moved for
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a preliminary injunction that is noticed for a hearing on September 17, 2020.3 The parties dispute
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Compl. – ECF No. 1. The plaintiffs are U.S. WeChat Users Alliance, a nonprofit formed to challenge
the Executive order, and individual and business users. Id. at 7–9 (¶¶ 19–25). Citations refer to
material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page
numbers at the top of documents.
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Discovery Letter – ECF No. 18 at 2, 4–5; Opp’n – ECF No. 22 at 28–30, 51 (any preliminary
injunction should be limited to a stay of the Executive Order pending the Secretary’s action).
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Mot. – ECF No. 17.
ORDER – No. 20-cv-05910-LB
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the plaintiffs’ entitlement to early discovery about the factual bases for the executive order.4 The
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court can decide the issue without oral argument. Civ. L. R. 7-1(b). On this record, the court
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denies the request.
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STATEMENT
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WeChat is a popular mobile application used in the United States and around the world.5 It
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allows its users to send text and voice messages, make phone calls, have video conference, share
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photos and posts, comment on other users’ posts, make payments, and use other integrated apps.6
On August 6, 2020, President Donald J. Trump issued Executive Order 13943, “Addressing
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the Threat Posed by WeChat, and Taking Additional Steps to Address the National Emergency
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United States District Court
Northern District of California
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with Respect to the Information and Communication Technology and Services Supply Chain.”7 It
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prohibits “any transaction that is related to WeChat by any person, or with respect to any property,
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subject to the jurisdiction of the United States.”8 It says the following about its effective date:
Section 1. (a) The [] actions shall be prohibited beginning 45 days after the date of
this order, to the extent permitted under applicable law . . .
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....
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(c) 45 days after the date of this order, the Secretary [of Commerce] shall identify
the transactions subject to subsection (a) of this section.9
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In their complaint, the plaintiffs claim that the Executive Order violates the First
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Amendment’s guaranty of freedom of speech, the Fifth Amendment’s equal-protection and due-
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process clauses, and the Religious Freedom Restoration Act, and they also challenge the Executive
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Discovery Letter – ECF No. 18.
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Compl. – ECF No. 1 at 2 (¶¶ 1–2).
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Id. at 10–11 (¶¶ 29–33).
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Id. at 17 (¶ 45).
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Id. at 17–18 (¶¶ 46–47); see also Exec. Order No. 13943, 85 Fed. Reg. 48641 (Aug. 6, 2020).
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Compl. – ECF No. 1 at 17–18 (¶ 47), 18 (¶ 49).
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ORDER – No. 20-cv-05910-LB
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Order as ultra vires on several grounds, including the President’s allegedly exceeding his authority
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under the International Economic Emergency Powers Act and not complying with other statutes.10
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The plaintiffs want expedited discovery for “all evidence that support[s] the factual bases for
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the issuance of Executive Order 13943,” and the government opposes the discovery.11 All parties
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have consented to the court’s jurisdiction.12
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GOVERNING LAW
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A court may authorize expedited discovery before the Rule 26(f) conference for the parties’
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and witnesses’ convenience and in the interest of justice. Fed. R. Civ. P. 26(d). Courts within the
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Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
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United States District Court
Northern District of California
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See, e.g., IO Grp., Inc. v. Does 1–65, No. 10-CV-4377-SC, 2010 WL 4055667, at *2 (N.D. Cal.
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Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal.
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2002); Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. 10-CV-0035, 2010 WL 2353520, at
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*2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612,
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613–14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may be found where the
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need for expedited discovery, in consideration of the administration of justice, outweighs the
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prejudice to the responding party.” Semitool, 208 F.R.D. at 276.
Courts weigh five factors to determine whether good cause exists for expedited discovery: “(1)
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whether a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the
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purposes for requesting the expedited discovery; (4) the burden on the defendants to comply with
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the requests; and (5) how far in advance of the typical discovery process the request is was made.”
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Hudson Martin Ferrante St. Witten & Demaria, PC v. Forsythe, No. 16-06551-BLF (SVK), 2017
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WL 550242, at *1 (N.D. Cal. Feb. 10, 2017) (cleaned up). In weighing the five factors, the court
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considers “the reasonableness of the request in light of all the surrounding circumstances.” Id.
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Id. at 24–31 (¶¶ 63–108).
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Discovery Letter – ECF No. 18 at 1–2.
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Consents – ECF Nos. 6, 8.
ORDER – No. 20-cv-05910-LB
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ANALYSIS
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The plaintiffs’ request is broad: “all evidence that support the factual bases for the issuance of
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Executive Order 13943.”13 They then limited the request to “documents” that were “generated
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through August 6[, 2020].”14 They want the discovery to respond to the government’s opposition,
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in part because the First Amendment claim requires the government to justify the restriction, and
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they anticipate that the government will argue that threats to national security justify the Executive
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Order.15 The defendants oppose the discovery on grounds that include the following: (1) the
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President’s reasons for issuing the Executive Order are not reviewable and are likely to be
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privileged, and (2) the proper approach is to wait for the Secretary’s final action and challenge that
final action under the Administrative Procedures Act.16 The defendants also agreed that they
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United States District Court
Northern District of California
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would not rely on any documents in their opposition that are not publicly available.17
On this record and argument, the court does not find good cause for early discovery. The
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defendants filed their opposition, and on quick review, it relies on public information (as
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promised). Navigating issues of privilege on the current schedule is not practicable. The interplay
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between the Executive Order and final agency action also militates in favor of this approach.
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Finally, the existing record allows consideration of the issues at the September 17, 2020 hearing.
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CONCLUSION
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The court denies the plaintiff’s request for expedited discovery. This disposes of ECF No. 18.
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IT IS SO ORDERED.
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Dated: September 10, 2020
______________________________________
LAUREL BEELER
United States Magistrate Judge
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Swearingen Letter, Ex. A to Discovery Letter – ECF No. 18 at 8.
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Discovery Letter – ECF No. 18 at 5.
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Id. at 3.
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Id. at 2, 4–5.
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Id. at 5.
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ORDER – No. 20-cv-05910-LB
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