COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 69

REPLY to opposition to motion re 62 MOTION for Discovery filed by ROY COCKRUM, SCOTT COMER, ERIC SCHOENBERG. (Berwick, Benjamin)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROY COCKRUM, SCOTT COMER, and
ERIC SCHOENBERG,
Plaintiffs,
v.
DONALD J. TRUMP FOR PRESIDENT,
INC., and ROGER STONE,
Defendants.

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) Civil Action No. 1:17-cv-1370-ESH
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PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR LEAVE TO CONDUCT
LIMITED JURISDICTIONAL DISCOVERY

TABLE OF CONTENTS
INTRODUCTION ...................................................................................................................... 1
ARGUMENT.............................................................................................................................. 1
I.

Plaintiffs’ Allegations Provide Ample Reason to Believe that Limited
Discovery Would Confirm that this Court Has Jurisdiction .................................. 1
A. The Campaign Transacted Business in D.C ..................................................... 1
B. Plaintiffs Have Plausibly Alleged that the Campaign’s Conduct in D.C.
Was in Furtherance of the Conspiracy that Harmed Plaintiffs .............................. 3
C. Plaintiffs’ Allegations Concerning Defendant Stone Are At Least
Sufficient to Support Jurisdictional Discovery...................................................... 5

II.

Plaintiffs’ Motion for Jurisdictional Discovery Is Timely ..................................... 6

III.

Plaintiffs’ Proposed Jurisdictional Discovery Is Focused and Reasonable ............ 6

i

Plaintiffs have alleged that the Trump Campaign and Roger Stone entered into an
unlawful agreement with Russian agents and WikiLeaks, whereby Russia would help Mr. Trump
get elected in exchange for policy favors, and which included a plan to release stolen DNC
emails. Even without discovery, Plaintiffs have alleged specific facts that show the existence of
this conspiracy, including important conduct in furtherance of the conspiracy by Defendants and
their co-conspirators in D.C. In response, the Campaign argues that the Court lacks jurisdiction
even if Defendants colluded with the Kremlin to interfere in a U.S. presidential election
(Campaign Opp’n at 9), and even if Defendants and their co-conspirators held “dozens of
meetings in the District where the participants conspired to disclose private information” (id. at
7). Defendants err. Such a conspiracy is unlawful, and Plaintiffs have alleged that it was planned
and executed at least in part in D.C. These allegations are sufficient to establish jurisdiction in
this forum. At the very least, they warrant jurisdictional discovery.1
ARGUMENT
I.

Plaintiffs’ Allegations Provide Ample Reason to Believe that Limited Discovery
Would Confirm that this Court Has Jurisdiction
A.

The Campaign Transacted Business in D.C.

Defendants do not contest that the D.C. long-arm statute’s “arise from” standard requires

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Defendants raise several premature and irrelevant issues. They worry that Plaintiffs might seek
to depose the President, but Plaintiffs have not proposed that, and any and all objections can be
resolved in due course. Defendants also speculate that jurisdictional discovery might interfere
with the Special Counsel’s investigation. Plaintiffs agree that investigation is of the utmost
importance. While it is common for criminal and civil cases to proceed in parallel, were the
Special Counsel to indicate that discovery would interfere, Plaintiffs would work with the parties
and the Court to resolve any issues. Finally, Plaintiffs’ counsel have never described this case as
a “vehicle for discovery.” Campaign Opp’n at 1. The Campaign’s attribution of this quote to
“Plaintiffs’ lawyers,” id., is misleading. The quote is from an article by a law professor with no
connection to this case, see Andy Wright, DNC Hack Victims Sue Trump Campaign and Roger
Stone, Just Security, July 12, 2017, https://www.justsecurity.org/43077/dnc-hack-lawsuit/, which
was later excerpted in a compilation of reactions to the case from several legal experts.
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only a “discernible relationship” between the conduct and the claims. See Pls.’ Mot. at 4-5. Nor
do Defendants contest that under this flexible standard, conspiracy-based liability can arise from
in-forum conduct in furtherance of that conspiracy—even if the conduct did not directly cause
the plaintiff’s harm. See id. at 5-8. Plaintiffs’ claims in this case bear more than a “discernible
relationship” to the alleged acts of Defendants and their co-conspirators in the forum. See
Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 335 (D.C. 2000). So the Campaign now
shifts its focus to the “transaction of business” clause of Section 13-423(a)(1). It contends, for
the first time, that “[c]ommitting or conspiring to commit a tort is not a commercial activity”
within that section. See Campaign Opp’n at 6-8. That is wrong.
The jurisdictional question is whether Plaintiffs’ claims are discernibly related to any
business transacted by Defendant in the District, not whether committing a tort is a business
activity. It is beyond dispute—as Defendants have admitted—that the Campaign transacted
business in the District. See 5/17/18 Tr. at 44 (“We are transacting business in the District. The
business was to elect Donald Trump president.”). Plaintiffs have alleged, with specific facts, that
some of the Campaign’s meetings in D.C. were part of the conspiracy that gave rise to Plaintiffs’
claims. See Pls.’ Mot. at 10-11. That these meetings furthered the conspiracy does not change
their character as meetings at which the business of the Campaign was conducted. Indeed, the
business of the Campaign—the very reason for its existence—was identical to one of the goals of
the alleged conspiracy: to help Mr. Trump get elected. Thus, this case is similar to Dooley v.
United Technologies Corp., 786 F. Supp. 65 (D.D.C. 1992), where the conspiracy at issue
advanced the defendants’ business purpose of selling helicopters.2

2

Crane v. Carr, 814 F.2d 758 (D.C. Cir. 1987), and West v. Holder, 60 F. Supp. 3d 190 (D.D.C.
2014) are inapposite, because in neither case did the defendant conduct any business in D.C.
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The D.C. Circuit has long recognized that “[p]ersons who enter the forum and engage in
conspiratorial acts are deemed to ‘transact business’ there.” Second Amendment Found. v. U.S.
Conf. of Mayors, 274 F.3d 521, 523 (D.C. Cir. 2001). The Campaign’s argument that actions in
furtherance of a conspiracy (to the extent they result in torts) cannot also be business activity is
entirely without foundation.3 To the extent that Defendants intend to resurrect their earlier
argument that Section 13-423(a)(1) never applies in the tort context, Plaintiffs have previously
explained why that is incorrect as a matter of law. See Pls.’ Surreply (ECF 50) at 1-2. Indeed,
counsel for the Campaign rightly conceded that “[w]hat (a)(1) says quite explicitly and what
Shoppers [Food Warehouse] says the decision is, if the tort in this case arises from transacting
business in the District, then you are under (a)(1).” 5/17/18 Tr. at 44. Plaintiffs’ claims are
discernibly related to the business conducted by the Campaign in the District—the business of
trying to get Donald Trump elected President by any means necessary, including unlawful means
that caused harm to Plaintiffs.
B.

Plaintiffs Have Plausibly Alleged that the Campaign’s Conduct in D.C. Was
in Furtherance of the Conspiracy that Harmed Plaintiffs

The Campaign also wrongly seeks to redefine the scope of the alleged conspiracy.
Campaign Opp’n at 10-12. Defendants misunderstand conspiracy liability and, consequently,
which acts in furtherance of a conspiracy are relevant to the Court’s jurisdictional analysis.4 It is

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This Court has rejected narrowing the “transacting business” clause to commercial business.
“Not only does this argument fly in the face of the actual language of the long-arm statute—
which speaks of ‘transacting any business,’ . . . it is flatly contradicted by case law.” Rochon v.
FBI, 691 F. Supp. 1548, 1559-60 (D.D.C. 1988); see also Doe v. Islamic Salvation Front, 993 F.
Supp. 3, 5-7 (D.D.C. 1998) (acting as spokesperson for terrorist group constitutes transacting
business); Heroes v. Heroes Found., 958 F. Supp. 1, 3-5 (D.D.C. 1996) (charitable organization
“soliciting donations in the District's local newspaper” constitutes transacting business).
Defendants’ narrow characterization ignores long-standing substantive conspiracy law. E.g.,
U.S. ex rel. Miller v. Bill Harbert Int’l Const., Inc., 608 F.3d 871, 900 (D.C. Cir. 2010) (“[A]
4

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not necessary for the agreement between the co-conspirators to have explicitly contemplated
dissemination of the DNC emails—although, to be clear, Plaintiffs have alleged that such
dissemination was part of the explicit agreement (Pls.’ Mot. at 9; Am. Compl. ¶¶ 13-15, 139159)—as long as the dissemination was done by a co-conspirator in order to further the
conspiracy. Participants in a conspiracy are civilly liable not only for agreed-upon unlawful acts,
but also for other overt acts in furtherance of the conspiracy. See Halberstam v. Welch, 705 F.2d
472, 477, 481 (D.C. Cir. 1983); Pls.’ Opp’n to Defs.’ Mots. to Dismiss (ECF25) at 27 n.10.
Even if the conspiracy involved only an express agreement to influence the election by
disseminating the stolen DNC emails, Plaintiffs have alleged sufficient facts to warrant
discovery. See Pls.’ Mot. at 12-13. The Campaign’s assertion that Plaintiffs have not shown that
the known meetings in D.C. had “anything to do with WikiLeaks’ release of DNC emails,”
Campaign Opp’n at 10, ignores both the discussion at those meetings of contacts with the
Kremlin and the timing of those meetings vis-à-vis known facts regarding the Campaign’s
attempts to obtain “dirt” on Clinton from the Russians. Pls.’ Mot. at 12-13.5 The Campaign also
has no response to allegations demonstrating the plausibility of potential additional contacts with
the forum, such as the presence in the District of the Campaign and important Campaign

conspiracy’s purpose should not be defined in too narrow or specific terms.”) (citation omitted);
Hobson v. Wilson, 737 F.2d 1, 55 (D.C. Cir. 1984) (“The essence of a civil conspiracy is
participation in a common and unlawful plan whose goals are known to all members—even if all
parties are not privy to each individual act taken in furtherance of the scheme.”), overruled on
other grounds by Abdelfattah v. U.S. Dept. of Homeland Sec., 787 F.3d 524 (D.C. Cir.2015); 737
F.2d at 51 (“The conspirators must share the general conspiratorial objective.”).
Plaintiffs cannot be expected to know precisely what was discussed at those meetings, given
that the relevant information is in Defendants’ possession and Plaintiffs have not yet taken
discovery. See Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., 81 F. Supp. 1, 11
(D.D.C. 2015) (“It is difficult for the Court to surmise what more Oxbow could offer before
discovery has commenced.”).
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employees, including the foreign policy team. See Am. Compl. ¶¶ 35-37.
Thus, Defendants would be liable regardless of whether disseminating the DNC emails
was the express and only purpose of the conspiracy, an explicitly agreed-upon part of a broader
conspiracy (as Plaintiffs have alleged), or an overt act in furtherance of a broader conspiracy.
Accordingly, acts in furtherance of the conspiracy are relevant to this Court’s jurisdictional
analysis, see Pls.’ Mot. at 10 n.7, and Plaintiffs have at least cleared the relatively low bar for
obtaining jurisdictional discovery. See Pls.’ Mot. at 2-3; Crane, 814 F.2d at 760.6
C.

Plaintiffs’ Allegations Concerning Defendant Stone Are At Least Sufficient
to Support Jurisdictional Discovery

As to Mr. Stone, Plaintiffs rely primarily on a conspiracy theory of jurisdiction, where
jurisdiction is based on overt acts in the District by Mr. Stone’s co-conspirators, see Pls.’ Mot. at
13-14, supplemented by Mr. Stone’s own contacts with the forum (contacts which resolve any
due process concern), see Am. Compl. ¶¶ 41, 216. Plaintiffs have pleaded specific facts from
which the Court can plausibly conclude that Mr. Stone was part of the conspiracy (properly
understood) or, at the very least, that Plaintiffs are entitled to jurisdictional discovery. Mr. Stone
was a close advisor to Mr. Trump and the Campaign and remained so after leaving his official
position. Am. Compl. ¶ 41. Mr. Stone was critical to bringing Mr. Manafort, who had extensive
and ongoing ties with the Russian regime, on to the Campaign. Id. Mr. Stone had direct contact
with both Russian intelligence and WikiLeaks during the campaign, and he had advanced

Defendant’s argument that there is nothing unlawful about an agreement to collude with a
hostile foreign power to interfere with a U.S. presidential election, as long as that agreement did
not explicitly contemplate the release of private information, is specious (and refuted by the
ever-increasing number of criminal indictments arising from this campaign). Regardless of
whether there are any lawful scenarios involving “an agreement to release emails to embarrass
Secretary Clinton or the DNC,” Campaign Opp’n at 9, such an agreement certainly is unlawful
(and thus sufficient to support civil-conspiracy liability) when a political campaign accepts such
support from a foreign national. See Pls.’ Mot. at 10 n.7; 52 U.S.C. § 30121; 11 C.F.R. § 110.20.
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knowledge of the timing of WikiLeaks’ email dumps. Id. ¶¶ 162-164, 170-179. Taken together,
these facts create a more-than-plausible inference that Mr. Stone was a party to the conspiracy.
II.

Plaintiffs’ Motion for Jurisdictional Discovery Is Timely
No rule bars this Court from granting a motion for jurisdictional discovery filed after

briefing or argument on a motion to dismiss. Rather, this Court has held that “[t]o get discovery,
. . . one must ask for it . . . before the resolution of the motion to which the discovery would be
relevant.” GSS Grp. Ltd. v. Nat’l Port Auth., 2011 WL 13121428, at *6 (D.D.C. Aug. 10, 2011)
(quotation omitted; emphasis added). Accordingly, Defendants’ in-circuit cases deny requests for
discovery made after an adverse dismissal order, e.g., id.; City of Moundridge v. Exxon Mobil
Corp., 244 F.R.D. 10, 14-15 (D.D.C. 2007), or where the plaintiffs never requested discovery
prior to appeal, e.g., Second Amendment Found., 274 F.3d at 525; but see Edmond, 949 F.2d at
417 (remanding for discovery where no request was made below).7 Neither Defendant identifies
any actual prejudice arising from the timing of Plaintiffs’ motion. Accepting Defendants’
argument would encourage inefficient litigation, forcing plaintiffs to file early, overly broad, and
unnecessary discovery motions in response to every 12(b)(2) motion. Plaintiffs filed a targeted
motion addressing the concerns raised at the May 17 hearing regarding the Defendants’ contacts
with the forum. That motion is now appropriately before this Court.
III.

Plaintiffs’ Proposed Jurisdictional Discovery Is Focused and Reasonable
Plaintiffs have proposed jurisdictional discovery narrowly targeting evidence of

“Relevant Forum Contacts,” which they have carefully defined. Pls.’ Mot. at 15-18. Mr. Stone

The Campaign’s out-of-circuit cases are neither binding nor persuasive, as Defendants have
identified no prejudice or substantive insufficiency with Plaintiffs’ motion. Defendant’s selective
quotations notwithstanding, each of those cases rejected discovery on grounds other than timing.
Campaign Opp’n at 3-5; e.g., Kelly v. Syria Petro. Dev. B.V., 213 F.3d 841, 850, 855 (5th Cir.
2000) (no discovery where plaintiffs did not diligently seek discovery after Rule 26 conference).
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largely accedes to Plaintiffs’ proposals (except for those concerning depositions); the Campaign
asserts it is not subject to any discovery, as to jurisdiction or the merits. Each of its reasons fails.
(1) The Campaign’s argument that no discovery should be granted regarding contacts
occurring after July 22, 2016 is wrong for at least three reasons. First, the July 22 email dump
did not mark the end of the conspiracy to interfere with the election or the harm to Plaintiffs. The
conspiracy included using the emails to harm candidate Clinton and her supporters, which the
Defendants continued to do every time they called public attention to the emails through Election
Day 2016, driving home the message that support and advocacy for Secretary Clinton could
result in loss of privacy and exposure to identity theft—and causing these very injuries to the
Plaintiffs. See Am. Compl. ¶ 168. Second, due process and the “arises from” standard do not
require a showing that Defendants’ forum contacts caused Plaintiffs’ injuries. The relevant
standard is a “discernible relationship.” See Pls.’ Mot. at 7-8. Third, under the conspiracy-payoff
theory discussed in Plaintiffs’ motion, post-July 22, 2016 conduct was sufficiently related to
Plaintiffs’ claims to create a further basis for jurisdiction. Id. at 11 n.9.
(2) The Campaign has no legal support for the novel assertion that its communications
are non-discoverable unless made between two or more conspirators. Under that absurd and
incorrect theory, a Campaign document entitled “Memo to File: Remember to Schedule Next
Email Conspiracy Meeting at the Trump Washington D.C. Hotel” would be non-discoverable.
(3) The Campaign also has no authority for its claim that internal communications are
entirely exempt from civil discovery based on an absolute First Amendment privilege. Campaign
Opp’n at 13. Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), held no such thing.
Instead, the Ninth Circuit engaged in a multipart interest-balancing test that the Campaign
doesn’t even try to describe, let alone satisfy. See id. at 1159–65. In any event, discovery can be

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made subject to a protective order, thus “ameliorat[ing]” any claimed “harms of disclosure.” In
re Anonymous Online Speakers, 661 F.3d 1168, 1178 (9th Cir. 2011) (discussing Perry).
(4) The Campaign asserts that Plaintiffs have identified “no reason to believe” that any
Campaign person said anything about the emails at the March 31 and April 27, 2016 meetings.
Campaign Opp’n at 13. Actually, the plaintiffs have alleged facts suggesting that there is good
reason to believe the emails were discussed. Pls.’ Mot. at 9-11. Moreover, those discussions
could have furthered the conspiracy’s objectives even if the emails weren’t specifically
mentioned. Id. at 10-11. In any event, this discovery does not aim definitively to prove the
conspiracy, only to locate the conduct that later will be proved to have constituted it. See, e.g.,
Jung v. Ass’n of Am. Med. Colleges, 300 F. Supp. 2d 119, 142 (D.D.C. 2004).
(5) Defendants seek to prematurely litigate whether depositions of high-ranking
Executive-branch officials would violate the separation of powers or “greatly impede the Special
Counsel’s work.” Campaign Opp’n at 13-14; Stone Opp’n at 6-9. The need for depositions will
be determined by document discovery; and if Plaintiffs later seek to depose any high-ranking
Executive-branch officials, the scope and propriety of those requests can be resolved in response
to objections or protective motions. And if the Special Counsel indicates that discovery threatens
to interfere with his investigation, that issue also can be addressed at that time.
(6) As other exchanges with the Court make clear, see, e.g., 5/17/18 Tr. at 7-8, Plaintiffs
did not disclaim reliance on the in-forum acts of Defendants’ co-conspirator (Campaign Opp’n at
14), but merely pointed out that the Campaign had its own contacts with the forum in furtherance
of the conspiracy. Discovery regarding Defendants’ co-conspirators’ contacts with D.C. is
appropriate.

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Date: June 4, 2018

Respectfully submitted,
By: /s/ Benjamin L. Berwick
Counsel for Plaintiffs
BENJAMIN L. BERWICK
(D.D.C. Bar No. MA0004)
United to Protect Democracy
10 Ware St.
Cambridge, MA 02138
[phone]
[e-mail]

IAN BASSIN
(NY Attorney Reg. No. 4683439)
United to Protect Democracy
222 Broadway
19th Floor
New York, NY 10038
[phone]
[e-mail]

RICHARD PRIMUS
(D.C. Bar No. 472223)
The University of Michigan Law School*
625 S. State Street
Ann Arbor, MI 48109
[phone]
[e-mail]
* For identification purposes

JUSTIN FLORENCE
(D.C. Bar No. 988953)
ANNE TINDALL
(D.C. Bar. No. 494607)
United to Protect Democracy
2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
[phone]
[e-mail]
[e-mail]

STEVEN A. HIRSCH
(CA Bar No. 171825)
Keker, Van Nest & Peters LLP
633 Battery Street
San Francisco, CA 94111-1809
[phone]
[e-mail]
STEPHEN P. BERZON
(CA Bar No. 46540)
BARBARA J. CHISHOLM
(CA Bar No. 224656)
DANIELLE LEONARD
(CA Bar No. 218201)
Altshuler Berzon LLP
177 Post Street Suite 300
San Francisco, CA
[phone]
[e-mail]
[e-mail]
[e-mail]

NANCY GERTNER
(MA Bar No. 190140)
Fick & Marx
100 Franklin Street, 7th floor
Boston, MA 02110
[phone]
[e-mail]

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