International Refugee Assistance Project et al v. Trump et al

Filing 117

RESPONSE in Opposition re 92 Supplemental MOTION to Expedite Discovery filed by Michael Dempsey, Department of Homeland Security, Department of State, John F. Kelly, Office of the Director of National Intelligence, Rex W. Tillerson, Donald J. Trump.(Garg, Arjun)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
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Plaintiffs,
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v.
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DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
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Defendants.
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INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,

No. 8:17-cv-00361-TDC

DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ RENEWED MOTION FOR EXPEDITED DISCOVERY
Plaintiffs have filed a renewed motion for expedited discovery, seeking evidence for use
in relation to their now-pending motion for a preliminary injunction challenging the President’s
recently issued Executive Order No. 13,780, titled “Protecting the Nation From Foreign Terrorist
Entry Into the United States.” But “[e]xpedited discovery is not the norm,” and is not permitted
absent a showing “of the need for the expedited discovery.” Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. O’Connor, 194 F.R.D. 618, 623 (N.D. Ill. 2000); accord Guttenberg v. Emery, 26
F. Supp. 3d 88, 97 (D.D.C. 2014).
Plaintiffs here have failed to make the requisite showing of a need for the expedited
discovery they seek. Contrary to establishing any need, throughout this litigation Plaintiffs have
consistently stated they believe they already have sufficient evidence to prevail on their motion
for a preliminary injunction.

These statements alone preclude Plaintiffs from conducting

expedited discovery now rather than (potentially) at some future point in the litigation.

Moreover, the discovery Plaintiffs seek here is unjustifiably burdensome and should be
rejected on its face: the four potential document requests are extremely broad in scope; they seek
to intrude into sensitive privileged material; and they would raise significant separation-ofpowers concerns given their apparent breadth and applicability to the highest levels of the
Executive Branch. See generally Defs.’ Opp’n to Mot. for Expedited Discovery (ECF No. 81)
at 8-15. Rather than respond to these arguments or narrow their discovery requests, Plaintiffs’
renewed motion instead demands that Defendants and this Court be required to perform the
narrow tailoring for them—i.e., by having Defendants produce responsive documents,
objections, and a privilege log within the impossibly short timeframe of seven days, followed by
negotiation between the parties and then motions practice in this Court. See Pls.’ Renewed Mot.
(ECF No. 92) at 6-7.
This is not accepted practice. Indeed, Plaintiffs’ preferred approach is fundamentally
unworkable, and wholly ignores that Plaintiffs bear the burden of demonstrating that expedited
discovery is reasonable and appropriate now. Moreover, Plaintiffs’ approach is contrary to the
Supreme Court’s instructions regarding limiting discovery into the highest levels of the
Executive Branch. See Cheney v. U.S. Dist. Court for District of Columbia, 542 U.S. 367, 388
(2004) (the Executive Branch does not “bear the onus of critiquing the unacceptable discovery
requests line by line”). Thus, even apart from Plaintiffs’ failure to demonstrate the need for
expedited discovery, the burden Plaintiffs seek to impose on Defendants and this Court is an
independent reason for denying Plaintiffs’ motion.

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ARGUMENT
I.

Plaintiffs Fail to Demonstrate Exceptional or Unusual Circumstances That Would
Justify Expedited Discovery.
As discussed in Defendants’ opposition to Plaintiffs’ prior expedited discovery motion,

see ECF No. 81 at 3, Plaintiffs seek an exception to the requirement under Federal Rule of Civil
Procedure 26(d) that discovery typically shall not commence until the parties to an action meet
and confer as prescribed by Rule 26(f). Expedited discovery is available only in limited, unusual
circumstances. See Dimension Data N. Am., Inc. v. NetStar-1, Inc., 226 F.R.D. 528, 530
(E.D.N.C. 2005); ForceX, Inc. v. Tech. Fusion, LLC, No. 4:11-cv-88, 2011 WL 2560110, at *4
(E.D. Va. June 27, 2011).
Courts analyze requests for expedited discovery under two separate tests.

See

Guttenberg, 26 F. Supp. 3d at 97. Some courts apply a “reasonableness or good cause” test. Id.
at 98; see also Dimension Data, 226 F.R.D. at 531. “Under that test, a court facing a motion for
expedited discovery in connection with a request for preliminary injunction may consider the
timing of the motion, whether the party seeking discovery has narrowly tailored its requests to
gather information relevant to the preliminary injunction determination, and whether the
requesting party has shown a likelihood of irreparable harm without access to expedited
discovery.” Lewis v. Alamance Cty. Dep’t of Soc. Servs., No. 1:15-cv-298, 2015 WL 2124211,
at *1 (M.D.N.C. May 6, 2015) (citing Dimension Data, 226 F.R.D. at 531-32). Other courts
have analyzed requests for expedited discovery “under a similar standard as to the preliminary
injunction standard.” ForceX, 2011 WL 2560110, at *5. Under this test, a party seeking early
discovery must make a strong showing of success on the merits as well as likely irreparable harm
in the absence of obtaining discovery. See id. Plaintiffs’ request for expedited discovery fails
both tests.

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A.

Plaintiffs Cannot Demonstrate a Compelling Need or Irreparable Harm That
Would Justify Expedited Discovery.

Fundamentally, expedited discovery is designed for the unusual circumstance in which a
party would suffer irreparable harm if discovery were postponed until after the parties’
Rule 26(f) conference.

Thus, regardless of which test is applied, Plaintiffs “must show a

likelihood of irreparable harm without access to early discovery.” Lewis, 2015 WL 2124211,
at *2. Plaintiffs have failed to demonstrate why their requested discovery is necessary now,
particularly because they have expressed the contrary throughout this litigation.
Plaintiffs argue their requested discovery would provide “additional evidence bearing on
the central question of the March 6 [Executive] Order’s discriminatory intent.” Pls.’ Renewed
Mot. at 2. But Plaintiffs have not established that their requested evidence is even relevant to the
Court’s consideration of the Executive Order’s alleged discriminatory purpose. Plaintiffs’ four
discovery requests here seek purely internal Government documents related to Executive Order
Nos. 13,769 and 13,780. As discussed in detail in the Government’s forthcoming opposition to
Plaintiffs’ motion for a preliminary injunction, however, the purpose of a Government policy
must be determined in this context by reference to official public acts, not by scrutinizing
internal Government documents. The Government hereby incorporates those arguments by
reference. See also, e.g., McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 863 (2005) (in deciding
whether “a religious objective permeated the government’s action,” courts consult “openly
available data”). By definition, therefore, Plaintiffs cannot establish an urgent, present need for
discovery because the evidence they are seeking is not relevant to the issues confronting the
Court in connection with Plaintiffs’ motion for a preliminary injunction.*

Plaintiffs’ renewed motion cites two cases purportedly addressing what courts may
review when analyzing the purpose of government action. See Pls.’ Renewed Mot. at 4 (citing
Hunter v. Underwood, 471 U.S. 222, 227-28 (1985); Vill. of Arlington Heights v. Metro. Hous.
*

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Moreover, even assuming Plaintiffs’ requested evidence were relevant, Plaintiffs fail to
demonstrate a need for the discovery. Indeed, Plaintiffs have repeatedly stated throughout this
litigation that they do not need any additional discovery to prove a likelihood of success on their
claim. In their prior motion for expedited discovery, Plaintiffs asserted that the evidence they
already have “is more than sufficient to show that they are likely to succeed in their claim that
the . . . successor [order] violates the Constitution.” ECF No. 62 at 8-9. And in Plaintiffs’ latest
motion for a preliminary injunction, Plaintiffs again assert that they already have “[v]oluminous”
and “overwhelming” evidence as to the new Executive Order’s purported illegality. ECF No. 91
at 2, 5. Given that Plaintiffs themselves do not view discovery as necessary to prove their
claims, there is accordingly no basis for permitting expedited discovery here.
Plaintiffs’ renewed motion argues generally that expedited discovery would “facilitate a
prompt and well-informed preliminary injunction ruling.” Pls.’ Renewed Mot. at 5. But that is
not the standard governing their request for expedited discovery. Plaintiffs must show not only
that they would suffer irreparable harm in the absence of a preliminary injunction—which they
cannot do for the reasons explained in Defendants’ forthcoming opposition to that motion—but
also that they would suffer irreparable harm without the opportunity to conduct expedited
discovery. See Lewis, 2015 WL 2124211, at *2 (denying a motion for expedited discovery
because “Plaintiff’s instant filings otherwise fail to address the issue of irreparable harm as it
concerns access to expedited discovery”). Similarly here, Plaintiffs do not even attempt to make
this showing of irreparable harm in the absence of expedited discovery, and therefore their
renewed motion must be denied.

Dev. Corp., 429 U.S. 252, 266-68 (1977)). But those cases arose against state and local actors in
the race-discrimination context—not in the immigration context, and not about assessing the
alleged motive of the President of the United States.
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B.

Plaintiffs’ Requested Discovery Is Not Narrowly Tailored.

Plaintiffs’ motion for expedited discovery should also be denied because their discovery
requests are not narrowly tailored. See Guttenberg, 26 F. Supp. 3d at 98 (denying motion for
expedited discovery where, inter alia, plaintiffs sought “relatively broad discovery on issues
going to the merits” rather than “narrowly tailored [requests] to reveal information related to the
preliminary injunction as opposed to the case as a whole”). Despite a lengthy discussion of this
flaw in Defendants’ opposition to Plaintiffs’ prior discovery motion—which Defendants
incorporate by reference here for this opposition, see ECF No. 81 at 8-11—Plaintiffs nonetheless
fail to defend the scope of their discovery requests.
To summarize the defects, all four of Plaintiffs’ discovery requests are exceedingly broad
and intrusive. Two of those requests seek tremendous amounts of information related to the
implementation of both Executive Order Nos. 13,769 and 13,780, as well as related court orders.
See ECF No. 63-1 at 6 (Requests for Production of Documents Nos. 2 and 4). Those requests
could very well encompass every U.S. Customs and Border Protection officer’s decision to grant
or deny entry, for every national of the seven countries, occurring from January 27, 2017, to the
present. Those requests could also extend to privileged internal Justice Department documents
providing advice about the meaning and implementation of court orders entered in pending
cases—including court orders entered in cases not under this Court’s jurisdiction, and thus
lacking in relevance to this particular lawsuit.
Plaintiffs’ two other requests extend to all data, memoranda, and other documents
“relating to the development” of the two Executive Orders. See ECF No. 63-1 at 6 (Requests for
Production of Documents Nos. 1 and 3). These requests could extend to countless documents
that are highly sensitive, such as: data relating to decisions on visa applications and entry of
foreign nationals; intelligence reports regarding potential future terrorist attacks; summaries of
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prior terrorism investigations and prosecutions; and numerous other sensitive documents related
to our Nation’s foreign relations, national security, and immigration activities. Indeed, these
requests on their face seek a tremendous amount of privileged material, as discussed further
below.
Under no circumstances could these requests be described as narrowly tailored, which
requires the denial of Plaintiffs’ renewed motion for expedited discovery. See ForceX, 2011 WL
2560110, at *5 n.3 (denying motion because “[t]hese requests are not narrowly tailored to obtain
relevant information necessary for expedited discovery purposes”); see also ELargo Holdings,
LLC v. Doe–68.105.146.38, 318 F.R.D. 58, 61 (M.D. La. 2016) (“The party seeking expedited
discovery has the burden of establishing good cause and the scope of the requests must be
narrowly tailored to the necessary information they seek.”); Philadelphia Newspapers, Inc. v.
Gannett Satellite Info. Network, Inc., No. 98-CV-2782, 1998 WL 404820, at *2 (E.D. Pa. July
15, 1998) (collecting cases for the proposition that “courts generally deny motions for expedited
discovery when the movant’s discovery requests are overly broad”). Because Plaintiffs have not
carried their burden of demonstrating that their discovery requests are sufficiently narrowly
tailored, Plaintiffs’ motion should be denied.
C.

Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits
Sufficient to Justify Expedited Discovery.

The above discussion demonstrates why Plaintiffs cannot satisfy the “good cause” or
“reasonableness” standards for expedited discovery. See Lewis, 2015 WL 2124211, at *1-2.
Should this Court instead apply the preliminary injunction standard to Plaintiffs’ motion for
expedited discovery, Plaintiffs’ request would fail for an additional reason: Plaintiffs cannot
make a strong showing of success on the merits. See ForceX, 2011 WL 2560110, at *5. As
discussed in the Government’s forthcoming opposition to Plaintiffs’ pending motion for a

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preliminary injunction, there are numerous obstacles precluding Plaintiffs’ success: Plaintiffs
lack standing, and they challenge a lawful exercise by the President of broad discretionary
authority granted to him by statute. For these reasons, too, Plaintiffs’ renewed motion should be
denied.
II.

The Discovery Requests Here Implicate Significant Privilege Concerns, and
Plaintiffs’ Proposed Approach Is Wholly Unworkable.
Plaintiffs’ requested discovery should also be rejected because it would raise significant

privilege issues, including potentially intruding into the highest levels of the Executive Branch.
Plaintiffs offer no justification for this intrusion into core Executive Branch privileges, and their
proposal for Defendants to assert privileges in response to their discovery requests—and for
further motions practice before this Court to resolve these issues—is not only unworkable but
veers into the impossible.
A.

Plaintiffs’ Requested Discovery Implicates Core Governmental Privileges.

As discussed in the Government’s opposition to Plaintiffs’ prior motion, Plaintiffs’
discovery requests, on their face, seek a significant amount of undoubtedly privileged material.
See ECF No. 81 at 12-15.

Specifically, Plaintiffs’ requests seek a significant number of

documents that would certainly qualify as pre-decisional and deliberative and thus be subject to
the Government’s deliberative process privilege. Furthermore, by requesting all documents
relating to the development of the two Executive Orders, Plaintiffs’ requested discovery is
clearly directed at least in part at the Executive Office of the President and implicates the
presidential communications privilege.
Plaintiffs’ renewed motion again says remarkably little about this clash with executive
privileges. In terms of the deliberative process privilege, for example, Plaintiffs respond that
“the privilege does not protect any documents that are ‘peripheral to actual policy formation[.]’”

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Pls.’ Renewed Mot. at 7. But even taking that limitation at face value, it is inapplicable to
Plaintiffs’ discovery requests which are expressly tied to policy formation—i.e., seeking
documents “relating to the development” of the two Executive Orders. The Supreme Court has
made clear that the deliberative process privilege is broad in scope and protects the type of
documents Plaintiffs seek here:
Our emphasis on the need to protect pre-decisional documents does not mean that
the existence of the privilege turns on the ability of an agency to identify a
specific decision in connection with which a memorandum is prepared. Agencies
are, and properly should be, engaged in a continuing process of examining their
policies; this process will generate memoranda containing recommendations
which do not ripen into agency decisions; and the lower courts should be wary of
interfering with this process.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n.18 (1975). Thus, Plaintiffs’ attempt to
downplay concerns associated with their intrusive discovery is unpersuasive; their discovery
requests plainly encompass expansive swaths of privileged material.
B.

Plaintiffs’ Proposal for Resolving Privilege Issues Is Inappropriate and
Wholly Unworkable.

Instead of narrowing their requested discovery or even acknowledging the legitimacy of
Defendants’ privilege concerns, Plaintiffs’ renewed motion seeks to further increase the burden
on Defendants and the Court—by requiring Defendants to fully respond to the discovery requests
within seven days, followed by negotiation between the parties and then motions practice before
the Court. This proposal is clearly unfeasible, and further underscores why Plaintiffs’ motion
should be denied.
As an initial matter, the premise of Plaintiffs’ argument is that “[t]here is no reason to
diverge from th[e] typical discovery dispute resolution process here[.]” Pls.’ Renewed Mot. at 6.
But it is Plaintiffs who advocate departing from typical discovery practices, by seeking expedited
discovery, and moreover by framing broad and intrusive requests that sweep in highly privileged

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material. In any event, Plaintiffs’ premise is directly contrary to the Supreme Court’s express
statement that district courts must account for separation-of-powers and privilege concerns when
setting the timing and scope of civil discovery implicating the Executive Office of the President.
See Cheney, 542 U.S. at 385 (“The high respect that is owed to the office of the Chief Executive
. . . is a matter that should inform the conduct of the entire proceeding, including the timing and
scope of discovery.”).

Plaintiffs’ suggestion that Defendants should raise their privilege

objections “in responding to Plaintiffs’ discovery requests,” Pls.’ Renewed Mot. at 6, is likewise
contrary to the Supreme Court’s instructions.

See Cheney, 542 U.S. at 388 (discovery is

permissible “only after the party requesting the information . . . ha[s] satisfied his burden of
showing the propriety of the requests,” because the Executive Branch does not “bear the onus of
critiquing the unacceptable discovery requests line by line”); United States v. McGraw-Hill Cos.,
No. 13-cv-0779-DOC (JCGx), 2014 WL 8662657, at *8 (C.D. Cal. Sept. 25, 2014) (“The
Supreme Court has been crystal clear: courts must ensure that the invocation of executive
privilege is the last resort.” (citing Cheney, 542 U.S. at 384-90)).
Plaintiffs’ failure to reconcile (or even acknowledge) Cheney’s holdings makes their
proposed future proceedings all the more remarkable. In Plaintiffs’ view, the appropriate course
here is for Defendants to respond to their discovery requests (including production of documents
and a privilege log) within just seven days. See Pls.’ Renewed Mot. at 6-7. After that, the
parties can negotiate about withheld documents, followed by motions practice. See id. at 6 (“If
the parties are unable to reach an agreement about certain categories of documents, the parties
can make any appropriate motions to the Court for resolution.”).
This proposed discovery schedule is unworkable. For one thing, it would be impossible
for the Government to comprehensively respond to Plaintiffs’ four expansive discovery requests

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within a mere seven days—less than 25% of the time typically provided for a party to respond
with objections to a request for production of documents, see Fed. R. Civ. P. 34(b)(2)(A).
Complying with Plaintiffs’ requested deadline would require collection, review, and production
of voluminous material within an extremely short timespan. Even in the unlikely event it were
possible for the Government to comply with that timeline, it would at a minimum be incredibly
burdensome. Cf. In re Fannie Mae Derivative Litig., 227 F.R.D. 142, 143 (D.D.C. 2005)
(relevant factors regarding whether to grant expedited discovery include “the burden on the
defendants to comply with the requests” (citing Entertainment Tech. Corp. v. Walt Disney
Imagineering, No. 03-3546, 2003 WL 22519440, at *3-5 (E.D. Pa. Oct. 2, 2003)).
This proposed schedule highlights why it is unreasonable for Plaintiffs to demand such
expansive discovery prior to a hearing on their motion for a preliminary injunction, see Pls.’
Renewed Mot. at 3 n.2, which they have previously requested to be scheduled for March 28. It is
wholly unrealistic to expect the discovery process to be completed prior to that date (or any
similar date). The Government would have to respond to Plaintiffs’ expansive requests; the
parties would then need time to negotiate; the parties would then need time to brief any
discovery-related motions; and finally the Court would need time to review and rule upon those
motions.

Because Plaintiffs’ discovery requests are expansive, implicate the Executive Office

of the President, and seek highly privileged material, it is simply not possible to conclude the
necessary discovery process prior to any hearing on Plaintiffs’ motion for a preliminary
injunction.
Ultimately, Plaintiffs had the burden to submit discovery requests that were narrowly
tailored and did not unjustifiably intrude upon core Executive Branch privileges. Plaintiffs
cannot rely on Defendants and this Court to perform that narrow tailoring for them, through a

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highly burdensome and time-consuming process of discovery motions practice.

Because

Plaintiffs’ renewed motion for expedited discovery is not only practically unworkable but also
legally unjustified, Plaintiffs’ renewed motion should be denied.
CONCLUSION
For the foregoing reasons, the Government respectfully requests that the Court deny
Plaintiffs’ motion for expedited discovery.
Dated: March 13, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
ROD J. ROSENSTEIN
United States Attorney
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Arjun Garg
ARJUN GARG (Bar No. 806537)
MICHELLE R. BENNETT (Bar No. 806456)
DANIEL SCHWEI
BRAD P. ROSENBERG
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on March 13, 2017, I electronically filed the foregoing Defendants’
Opposition to Plaintiffs’ Motion for Expedited Discovery using the Court’s CM/ECF system,
causing a notice of filing to be served upon all counsel of record.

/s/ Arjun Garg
ARJUN GARG