KLAYMAN v. OBAMA et al

Filing 110

Memorandum in opposition to re 103 MOTION to Compel Defendants' Compliance With FRCP Rule 26 filed by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit CMO, # 2 Text of Proposed Order)(Patton, Rodney)

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
_____________________________________
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LARRY KLAYMAN, et al.,
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Plaintiffs,
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v.
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Civil Action No. 13-cv-00851 (RJL)
)
BARACK OBAMA, President of the
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United States, et al.,
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Defendants.
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THE GOVERNMENT DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AMENDED
MOTION TO COMPEL DEFENDANTS’ COMPLIANCE WITH FRCP 26
The Government Defendants 1 oppose Plaintiffs’ amended motion to compel (ECF No.
104) them to attend a Rule 26(f) discovery conference and to serve their initial disclosures
because the governing Case Management Order (CMO) makes clear that it is not yet time to
consult on discovery issues or to make initial disclosures; nor, given the procedural posture of
this and related cases, would it be prudent or efficient to do so at this time.
A Rule 26(f) discovery conference is premature and therefore not required at this time.
Pursuant to Federal Rule of Civil Procedure 26(f)(1) and Local Civil Rule 16.3(a) of this Court,
counsel must confer within 21 days before a scheduling conference is held or a scheduling order
is due under Rule 16(b) unless “the court orders otherwise.” Fed. R. Civ. P. 26(f)(1). Here, the
Court has issued a separate order that provides otherwise. Specifically, on June 12, 2013, the
Court entered a CMO which ordered that the parties shall confer pursuant to Rule 26(f) “within
1

The “Government Defendants” are Barack Obama, President of the United States, Eric
Holder, Attorney General of the United States, General Keith B. Alexander, Director of the
National Security Agency (NSA), insofar as they are sued in their official capacities, together
with defendants NSA and the United States Department of Justice.

30 days of all defendants answering the complaint or filing other motions under Rule 12(b) of
the Federal Rules of Civil Procedure.” CMO at 2 (ECF No. 6) (emphasis added) (Exh. A).
Insofar as they are sued in their individual capacities, President Obama, Attorney General
Holder, NSA Director Alexander, and Judge Vinson (“individual federal defendants”), have not
been properly served and so have neither answered nor filed a Rule 12(b) motion so as to trigger
the timing of the Rule 26(f) conference. See Memorandum of Individual Federal Defendants in
Opposition to Plaintiffs’ “Motion for Entry of Default” (ECF No. 88). Accordingly, Plaintiffs’
motion to compel such a conference is improper. See, e.g., Panowicz v. Hancock, 2013 WL
5442959, at *2 (D. Md. Sept. 27, 2013) (“Because a Rule 26(f) conference is not required,
Plaintiff’s motion to compel such [a] conference will be denied.”).
Relatedly, Plaintiffs cannot seek to compel the Government Defendants to make their
initial disclosures because those disclosures are also not yet due. Under Rule 26 of the Federal
Rules of Civil Procedure, the time for making such disclosures is “at or within 14 days after the
parties’ Rule 26(f) conference.” Fed. R. Civ. P. 26(a)(1)(C). Given that a Rule 26(f) conference
has not yet occurred, and that it is still premature to hold one, it follows that it is not yet time to
make initial disclosures. 2

2

Plaintiffs have moved to compel the Government Defendants to attend a Rule 26(f)
discovery conference and to make their initial disclosures only in Klayman v. Obama, no. 13-cv0851 (Klayman I). The same analysis, however, applies in Klayman v. Obama, no. 13-cv-0881
(Klayman II) and Klayman v. Obama, civ. no. 14-cv-00092 (Klayman III) because this Court has
entered the same CMO in both of these related cases. Klayman II (ECF No. 4); Klayman III
(ECF No. 7). In Klayman II, Plaintiffs not have properly served the individual federal
defendants and so they have neither answered nor responded with a Rule 12(b) motion, making a
discovery conference (and initial disclosures) premature under the CMO. In Klayman III
Defendants are not—contrary to Plaintiffs’ representations to the Court—“intentionally engaging
in more delay and obstructionist tactics” by failing to “return receipts” “for over one month.”
Mot. to Compel at 2 n.1. After diligent efforts, counsel for the Government Defendants have
found no evidence that service was effected on the Government Defendants in any manner
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Even if it were time under the governing CMO to hold a Rule 26(f) conference or to
make initial disclosures, good cause would exist to stay any discovery obligations in light of the
procedural posture of this case. After the Court granted two of the Plaintiffs a preliminary
injunction on their claim that the NSA’s bulk telephony metadata program violates their Fourth
Amendment rights, see Memorandum Opinion (ECF No. 48) and Order (ECF No. 49), 3 the
Government Defendants appealed that order to the Court of Appeals for the District of Columbia
Circuit, see Notice of Appeal (ECF No. 64). 4 Discovery should be deferred until the Court of
Appeals determines, inter alia, whether this Court has subject matter jurisdiction to hear the case
(that is, whether Plaintiffs have standing) and whether, in light of the Supreme Court’s decision
in Smith v. Maryland, 442 U.S. 735 (1979), Plaintiffs have a likelihood of success on their
Fourth Amendment claim (and otherwise met the requirements for issuance of a preliminary
injunction).
Deferring discovery would avoid the potentially unnecessary expenditure of time, effort,
and resources required to resolve discovery disputes, avoid litigation over the disclosure of
sensitive and classified information about the intelligence sources and methods involved in the
telephony metadata program, and would promote judicial efficiency by allowing the parties to
know what, if any, claims remain after appeal to which discovery obligations would attach.
Indeed, for these and other reasons, the Government Defendants have also moved to stay this
before Plaintiffs hand-delivered a copy of the Klayman III summons and complaint to the U.S.
Attorney’s Office for the District of Columbia on April 2, 2014, the day after Plaintiffs filed this
motion to compel.
3

The Court did not reach the merits of Plaintiffs’ other constitutional claims. See
Klayman v. Obama, 957 F. Supp. 2d 1, 9 n.7 (D.D.C. 2013).
4

Plaintiffs cross-appealed the Court’s order granting in part their motion for the issuance
of a preliminary injunction. See Notice of Cross Appeal (ECF No. 67).
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case until the Court of Appeals resolves the appeal of this Court’s preliminary injunction, see
Motion for Stay of Proceedings Against the Government Defendants Pending Appeal of
Preliminary Injunction at 6-9 (ECF No. 66). Good cause therefore would exist to stay discovery
obligations (even if the CMO did not already make clear that a discovery conference is not
required at this juncture) based solely on the procedural posture of this case. See Aygen v.
District of Columbia, 2012 WL 5462994, at *1 (D.D.C. Nov. 8, 2012) (finding that it was
“prudent to stay discovery . . . to avoid the unnecessary expenditure of resources”); Fonville v.
District of Columbia, 766 F. Supp. 2d 171, 174 (D.D.C. 2011) (staying a police officer’s dueprocess challenge to his demotion pending resolution of issue of local law by the D.C. Court of
Appeals that would “likely ‘narrow the issues in the pending cases and assist in the
determination of the questions of law involved’”) (quoting Landis v. N. Am. Co., 299 U.S. 248,
253 (1936)); Allina Health Servs. v. Sebelius, 756 F. Supp. 2d 61, 65 (D.D.C. 2010) (“A district
court has broad discretion to stay a proceeding pending the resolution of proceedings in other
courts [that] may affect the scope and necessity for the litigation.”).
The procedural posture of two other related cases, Klayman II and Klayman III, also
supports staying discovery obligations here. In Klayman II Plaintiffs challenge, in addition to the
bulk telephony metadata program, the targeted collection of the content of communications
under Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the now-defunct
program for the bulk collection of Internet metadata pursuant to the FISA’s pen/trap provision,
50 U.S.C. § 1842. See Amended Compl. (ECF No. 30). The Government Defendants moved to
dismiss Plaintiffs’ challenges to these programs and that motion is still pending. See
Government Defendants’ Partial Motion to Dismiss (ECF No. 51); Reply in Support of the
Government Defendants’ Partial Motion to Dismiss (ECF No. 60). In Klayman III, which raises
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claims identical to those in Klayman II, except that the former purports to be a class action suit, 5
the Government Defendants anticipate filing a dispositive motion responding to the Klayman III
complaint on or before June 2, 2014, which is 60 days from the date they were served with the
summons and complaint. Deferring discovery in Klayman I until the parties know which claims,
if any, will proceed in any of these three related cases promotes efficiency and reduces the
likelihood of duplicative proceedings when many of the same defendants may be subject to the
same or similar discovery requests in each of the cases. See, e.g., Allina Health Servs., 756 F.
Supp. 2d at 65.
For the reasons set forth above, the Court should deny Plaintiffs’ amended motion to
compel the Government Defendants’ compliance with Rule 26 of the Federal Rules of Civil
Procedure.
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5

In a Praecipe filed on January 15, 2014, Plaintiffs notified the Court that they were
withdrawing their class action allegations from Klayman I (ECF No. 71) and Klayman II (ECF
No. 54).

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Dated: April 18, 2014
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
JOSEPH H. HUNT (D.C. Bar No. 431134)
Branch Director
ANTHONY J. COPPOLINO
Deputy Branch Director
/s/ Rodney Patton
JAMES J. GILLIGAN
Special Litigation Counsel
MARCIA BERMAN
Senior Trial Counsel
[e-mail]
BRYAN DEARINGER
Trial Attorney
[e-mail]
RODNEY PATTON
Trial Attorney
[e-mail]
JULIA A. BERMAN (D.C. Bar No. 986228)
Trial Attorney
[e-mail]
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20530
Tel: [phone]
Fax: [phone]
Attorneys for Defendants

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