International Refugee Assistance Project et al v. Trump et al

Filing 63

MOTION for Discovery on an Expedited Basis by HIAS, Inc., Allan Hakky, International Refugee Assistance Project, Jane Doe 1, John Doe 1-4, Samaneh Takaloo (Attachments: # 1 Exhibit 1 & 2)(Cox, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

INTERNATIONALREFUGEE
ASSISTANCE PROJECT, et al.,
Civil Action No.: 8:17-CV-00361-TDC
Plaintiffs,
v.
DONALD TRUMP, et al,
Defendants.

PLAINTTIFS’ MOTION FOR EXPEDITED DISCOVERY
AND SUPPORTING MEMORANDUM OF LAW
Plaintiffs respectfully submit this memorandum in support of their Motion for Expedited
Discovery. As alleged in Plaintiffs’ Complaint, the January 27, 2017 Executive Order violates two
core constitutional protections—the guarantee that the government will not establish, favor,
discriminate against, or condemn any religion, and the guarantee of equal protection of the laws—
as well as federal statutes. Defendants have now indicated that they will replace that January 27
Order with another executive order similar in design and effect, but modified to address some of
the problems noted by the Ninth Circuit in its decision declining to stay an injunction of the January
27 Order. See Washington v. Trump, No. 17-35105, Appellants’ Supp. Br. on En Banc
Consideration at 4 (9th Cir. Feb. 16, 2017); see also Gabby Morrongiello, “Miller: ‘Nothing was
wrong’ with Trump’s travel ban,” Washington Examiner, Feb. 21, 2017, available at
http://www.washingtonexaminer.com/miller-nothing-was-wrong-with-trumps-travelban/article/2615418 (senior White House official stating that new executive order will have
“mostly minor technical differences. Fundamentally, you're still going to have the same policy

outcome for the country.”). Based on these statements, Plaintiffs anticipate that the new executive
order will threaten them with immediate irreparable injury and that they will need to swiftly seek
to bar its implementation in its entirety by moving for a temporary restraining order and
preliminary injunction.
Plaintiffs seek narrow and carefully tailored expedited discovery tied directly to the
substance of their constitutional and statutory claims against the January 27 Order and its
replacement executive order. Specifically, Plaintiffs request written discovery only covering: (1)
any memoranda, policies, projections, reports, data, summaries, or similar documents relating to
the development of the January 27 Order; (2) any instructions, guidance, memoranda, policies,
projections, reports, data, summaries, or similar documents developed by or issued to relevant
agencies (e.g., Department of State, Department of Homeland Security and all subcomponents)
regarding the implementation and interpretation of the January 27 Order and subsequent court
orders; (3) instructions, guidance, memoranda, policies, projections, reports, data, summaries, or
similar documents relating to the development of any replacement for the January 27 Order,; and
(4) any instructions, guidance, memoranda, policies, projections, reports, data, summaries, or
similar documents. See Exhibit 1 (Pl.’s Requests for Production), J.R. 1. The requested discovery
is limited in scope and, given the rapidly changing political and legal landscape as well as the
significant ongoing and anticipated harms to Plaintiffs in this case, appropriate to allow at this
time. As set forth herein, this Court can and should authorize this expedited discovery, which is
reasonable under the circumstances and supported by good cause.
FACTUAL BACKGROUND
On February 7, 2017, Plaintiffs filed this case, challenging in its entirety an executive order
signed by President Trump on January 27, 2017, entitled “Protecting the Nation from Terrorist

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Entry into the United States” (hereinafter, the “January 27 Order”), which violates various
constitutional and federal statutory provisions. In particular, the January 27 Order violates two
vital constitutional protections—the guarantee that the government shall make no law respecting
an establishment of religion, and the guarantee of equal protection of the laws. See Washington v.
Trump, No. 17-35105, ___ F.3d ____, 2017 WL 526497 at *7 (9th Cir. Feb. 9, 2017) (noting “the
serious nature of the allegations the States have raised with respect to their religious discrimination
claims”); Aziz v. Trump, No. 17-0116, ___ F. Supp. 3d ____, 2017 WL 580855, at *7-10 (E.D. Va.
Feb. 13, 2017) (holding that the Commonwealth of Virginia is likely to succeed on its claim that
the Executive Order violates the Establishment Clause).
On February 3, 2017, the U.S. District Court for the Western District of Washington issued
a nationwide temporary restraining order enjoining the enforcement of certain sections of the
January 27 Order (Sections 3(c), 5(a)-(c), and 5 (e)). Washington v. Trump, No. 2:17-cv-00141JLR, Temporary Restraining Order, (W.D. Wa. Feb. 3, 2017). Following an appeal, on February
9, 2017, the Ninth Circuit denied Defendants’ motion to stay the injunction pending appeal,
Washington v. Trump, 2017 WL 526497 (refusing to stay the district court’s preliminary
injunction), and subsequently stayed en banc proceedings in anticipation of a new replacement
Executive Order to be issued by President Trump. Washington v. Trump, No. 17-35105, Order
Staying En Banc Proceedings (9th Cir. Feb. 16, 2017).
The Washington v. Trump decision enjoining certain sections of the January 27 Order
remains in effect, but that injunction does not address other constitutionally and statutorily infirm
provisions of the January 27 Order, including Section 5(d), which reduces the number of refugees
permitted to enter the United States and further suspends the entry of refugees until President
Trump “determine[s] that additional admissions would be in the national interest.” For the

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organizational Plaintiffs in the present action—organizations dedicated to helping refugees resettle
in the United States—as well as their clients, the harms they experience due to the January 27
Order have only just begun.
Once the replacement executive order is issued, Plaintiffs anticipate that they will need to
move swiftly for a temporary restraining order and preliminary injunction to enjoin its enforcement
and prevent further irreparable injury. Plaintiffs therefore request expedited discovery in order to
develop the factual record available on the preliminary injunction motion.
ARGUMENT
A. Authority and Standard for Expedited Discovery Requests
District courts have broad discretion over discovery issues arising before them, Carefirst
of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402 (4th Cir. 2003),
including those related to the timing of discovery requests. Hinkle v. City of Clarksburg, W.Va.,
81 F.3d 416, 426 (4th Cir. 1996) (“District courts enjoy nearly unfettered discretion to control the
timing and scope of discovery.”); Dent v. Montgomery Cty. Police Dep’t, 745 F. Supp. 2d 648,
663 (D. Md. 2010) (“District courts have broad discretion to manage the timing of discovery, and
the only formal limitation on this discretion with respect to consideration of motions to amend
scheduling orders is that the moving party demonstrate good cause.”) (internal citations omitted).
The Federal Rules of Civil Procedure also authorize courts to adjust the discovery timeline
and to order expedited discovery. Dimension Data N. Am., Inc. v. Netstar–1, Inc. 226 F.R.D. 528,
530 (E.D.N.C. 2005); Malon v. Franklin Fin. Corp., No. CIVA 3:14cv671, 2014 WL 5795730
(E.D. Va. Nov. 6, 2014); Tribal Casino Gaming, Enterprise v. W.G. Yates & Sons Construction
Co., No. 1:16CV30, 2016 WL 3450829, at *3 (W.D.N.C. June 16, 2010). Fed. R. Civ. P. 26(d)(1)
expressly provides that a party may obtain discovery before a Rule 26(f) scheduling conference

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“when authorized . . . by court order,” as does Local Rule 104.4. Federal Rules of Civil Procedure
30(a), 33(b), 34(b) and 36 also permit the court to adjust the timing requirements imposed under
Rule 26(d) and to expedite the time for responding to discovery requests.
Courts frequently grant expedited discovery in conjunction with preliminary injunction
motions, particularly when plaintiffs are at risk of irreparable harm. See, e.g., Malon v. Franklin
Fin. Corp., CIV A 3:14cv671, 2014 WL 5795730, at *3 (E.D. Va. Nov. 6 2014) (granting
expedited discovery to plaintiff prior to anticipated preliminary injunction motion, where plaintiff
had made showing of irreparable harm); Asheboro Paper & Packaging, Inc. v. Dickinson, 599 F.
Supp. 2d 664, 668 (M.D.N.C. 2009) (noting that the court had granted expedited discovery relating
to issues raised by the plaintiff’s request for injunctive relief before the preliminary injunction
hearing); see also Ciena Corp. v. Jarrard, 203 F.3d 312, 324 (4th Cir. 2000) (remanding to the
lower court with instructions to provide the defendant an opportunity to conduct expedited
discovery in order to file a motion to dissolve a preliminary injunction); Dan River, Inc. v. Unitex
Ltd., 624 F.2d 1216, 1220 (4th Cir. 1980) (describing expedited discovery in the district court in
preparation for preliminary injunction hearing).
Although “specific standards for evaluating expedited discovery motions are not set out in
the Federal Rules of Civil Procedure,” a “standard based upon reasonableness or good cause,
taking into account the totality of the circumstances” is consistent with the Rules and should be
applied when “plaintiff requests expedited discovery in preparation for a preliminary injunction
determination.” NetStar-1, Inc., 226 F.R.D. at 531-32 (collecting cases); accord, e.g., Chryso, Inc.
v. Innovative Concrete Sols. of the Carolinas, LLC, No. 5:15-CV-115-BR, 2015 WL 12600175, at
*3 (E.D.N.C. June 30, 2015) (noting that “[t]he Comments to the Rules of Civil Procedure

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recognize that it may be appropriate to allow expedited discovery when a party seeks preliminary
injunctive relief”).1
B. Plaintiffs’ Narrow Request for Expedited Discovery is Reasonable and Supported
by Good Cause
1. Plaintiff’s Request is Reasonable in Light of the Posture of this Case and the
Timing of Underlying Events.
Plaintiffs’ request for expedited discovery is reasonable given Plaintiffs’ intention to seek
a temporary restraining order and preliminary injunction against the replacement executive order
that government officials have stated will issue this week.2 Plaintiffs are making this motion for
expedited discovery now in order to obtain additional facts directly relevant to that preliminary
injunction motion as quickly as practicable, so that the Court may consider them in deciding on
the motion.
Moreover, there is reason to believe that the replacement executive order will, like the
January 27 Order, include provisions that are time-limited, so that if any relief is to be effective, it
must be obtained quickly. For example, the initial seven-country ban contained in Section 3(c) of

Instead of a reasonableness or good cause standard, some courts have adopted “a formulation of
the preliminary injunction test” to determine whether to grant expedited processing. ForceX, Inc.
v. Tech. Fusion, LLC, No. 4:11CV88, 2011 WL 2560110, at *5 (E.D. Va. June 27, 2011).
However, as the court in Netstar-1 explained, “where . . . a plaintiff seeks expedited discovery in
order to prepare for a preliminary injunction hearing, it does not make sense to use preliminary
injunction analysis factors to determine the propriety of an expedited discovery request.” 226
F.R.D at 531 (quoting Merrill Lynch, Pierce, Fenner & Smith v. O’Connor, 194 F.R.D. 618, 623
(N.D. Ill. 2000)). To do so would simply duplicate the preliminary injunction analysis—except
without the very facts that the expedited discovery motion sought.
1

If this Court finds that a preliminary injunction test is the appropriate one to apply to this
motion, Plaintiffs respectfully request that Plaintiffs’ anticipated motion for a temporary
restraining order—which will address those factors—be incorporated by reference in, and
considered by the Court in deciding, this request.
2

Plaintiffs intend to file a Pre-Motion Conference letter with this Court outlining the scope of the
proposed motion for a Temporary Restraining Order/Preliminary Injunction once the replacement
executive order is issued.

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the January 27 Order was to last for 90 days from the date of the Order; a judgment that the ban is
unlawful issued on day 91 would have allowed a full 90 days of irreparable injury to accrue while
the unlawful ban was being litigated. Plaintiffs’ request for expedited discovery is reasonably
timed in light of this ticking-clock problem.
2. Plaintiffs’ Request is Narrowly Tailored.
The limited expedited paper discovery requested by Plaintiffs is reasonable in its scope and
directly related to the claims upon which Plaintiffs intend to move for an injunction.
The discovery Plaintiffs are seeking on an expedited basis is not burdensome. Plaintiffs
seek documents relating to the creation and implementation of the January 27 Order and the
creation and implementation of the replacement order. These documents are already in the
government’s possession and should not require an extensive search. Moreover, the validity of the
January 27 Order has been challenged in multiple cases around the country, and at least one case—
Washington v. Trump—is proceeding to discovery at this time. See Washington v. Trump, No.
2:17-cv-00141-JLR, Order Regarding Initial Disclosures, Joint Status Report, and Early
Settlement (W.D. Wa. Feb. 15, 2017) (setting the deadline for the Rule 26(f) conference at March
1, 2017 and the deadline for initial disclosures at March 15, 2017) (attached as Exhibit 2, J.R. 8).
Thus, the incremental burden to the government of complying with the limited expedited discovery
requested in this case should be minimal.
Even considered in isolation, the expedited discovery requested here is either in line with,
or less burdensome than, what courts in this and other Circuits have ordered in other cases. See,
e.g., Tribal Casino Gaming, 2016 WL 3450829 at *2, 4 (ordering one week of load testing of a
hotel garage, requiring partial closure of the garage and potentially causing damage to structure);
Chryso, 2015 WL 12600175, at *6 (seven interrogatories and six requests for production directed

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for each of four defendants); Malon, 2014 WL 5795730, at *3-4 (five broad classes of documents);
JTH Tax, Inc. v. M & M Income Tax Serv., Inc., No. 6:13-cv-00265-GRA, 2013 WL 460316, at
*3 (D.S.C. Feb. 6, 2013) (depositions as well as written discovery); Nutrition & Fitness, Inc. v.
Progressive Emu, Inc., No. 5:12-CV-192-F, 2012 WL 1478734, at *5 (E.D.N.C. Apr. 27, 2012)
(five depositions including one Rule 30(b)(6) deposition, 20 document requests, and 10
interrogatories); Laboratory Corp. of Am. Holdings, 2010 WL 3945111, at *2-3 (seven broad
classes of documents and a Rule 30(b)(6) deposition); U.S. Commodity Futures Trading Comm’n
v. Smith, No. 1:10CV00009, 2010 WL 1759542, at *4–5 (W.D. Va. Feb. 23, 2010) (allowing more
than 10 depositions and broad discovery to identify wrongdoing, assets, customers, and customers
and Defendants’ sources of funds); Asheboro Paper and Packaging, , 599 F. Supp. 2d at 676-77
(at least one deposition, in addition to paper discovery); Physicians Interactive v. Lathian Systems,
Inc., No. CA 03-1193-A, 2003 WL 23018270, at *10 (document requests, interrogatories, and
physical access to multiple computer systems for the purpose of forensic mirroring); see also, e.g.,
Doe v. Johnson, CV 15-250 TUC DCB (D. Az. Aug. 14, 2015) (granting Plaintiffs and their experts
access to detention facilities for physical inspection and documentation via video and photography
footage); Bremson v. United States, 459 F. Supp. 121, 124 (W.D. Mo. 1978) (deposition of IRS
agent and interrogatories);.
Furthermore, the requested discovery is directly related to Plaintiffs’ anticipated
preliminary injunction motion because it provides further evidence of the discriminatory purpose
and effect of the executive orders. To be sure, there is already extensive evidence of this unlawful
purpose and effect in publicly available sources. See, e.g., Aziz, 2017 WL 580855, at *3-5 (findings
of fact in opinion granting partial preliminary injunction); Washington, 2017 WL 526497, at *10
(noting that plaintiffs “have offered evidence of numerous statements by the President about his

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intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the Executive
Order was intended to be that ban”); Compl. (doc. # 1) ¶¶ 39-51. That evidence is more than
sufficient to show they are likely to succeed in their claim that the January 27 Order or a similar
successor violates the Constitution. Accord Aziz, 2017 WL 580855, at *7-9 (holding that the
plaintiff had established a likelihood of success on claim that January 27 Order violates the
Establishment Clause). However, the “sensitive inquiry into such circumstantial and direct
evidence of intent as may be available” that the law mandates, Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977),3 can only be enhanced by
obtaining that evidence directly from the defendant. Cf. Washington, 2017 WL 526497, at *10 (“It
is well established that evidence of purpose beyond the face of the challenged law may be
considered in evaluating Establishment and Equal Protection Clause claims.”) (citing, inter alia,
Arlington Heights and Church of the Lukumi Babalu Aye, Inc.); Aziz, *7-9 (discussing intent
evidence).
Finally, evidence regarding the government’s implementation of the executive orders will
shed light on its construction of those Orders and the various injuries, including irreparable
injuries, those Orders cause Plaintiffs. The government’s implementation of the January 27 Order
was chaotic, secretive, and marked by major reversals. See, e.g., Aziz, 2017 WL 580855, at *2
(explaining that lawful permanent residents from banned countries were initially denied entry
under the January 27 Order but that on January 29 and 30, administration officials stated—for

3

Arlington Heights sets forth a non-exclusive list of factors relevant to intent analysis under
equal protection and the Religion Clauses alike, including: the nature and degree of the disparate
impact; the historical background and specific series of events leading to the enactment of the
challenged Orders; the legislative or administrative history, including contemporaneous
statements made by the decisionmaker(s); and any departures from normal processes or
substantive considerations. 429 U.S. at 266-68; see also Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 540 (1993).

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differing reasons—that such individuals would be allowed into the country); Compl. (doc. # 1) ¶¶
76-99. To the extent there is any ambiguity in the replacement executive order, a more complete
evidentiary record regarding what actions the government took to implement the January 27 Order
and why, as well as what, if any, further implementing instructions or interpretations the
government is issuing with respect to the replacement Executive Order, will assist Plaintiffs and
the Court in determining the likely effect of the replacement executive order on the Plaintiffs.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion
for Expedited Discovery to assist Plaintiffs in preparing a motion for a temporary restraining order
and preliminary injunction in connection with the replacement Executive Order.

Respectfully submitted,

/s/ Omar C. Jadwat
Karen C. Tumlin†
Nicholas Espíritu†
Melissa S. Keaney†
Esther Sung†
National Immigration Law Center
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Justin B. Cox (Bar No. 17550)
National Immigration Law Center
1989 College Ave. NE
Atlanta, GA 30317
Tel: [phone]

Dated: February 22, 2017

Omar C. Jadwat†
Lee Gelernt†
Hina Shamsi†
Hugh Handeyside†
Sarah L. Mehta†
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Cecillia D. Wang†
Cody H. Wofsy†
American Civil Liberties Union
Foundation

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Fax: [phone]
[e-mail]
† Appearing pro hac vice

39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
David Cole†
Daniel Mach†
Heather L. Weaver†
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
/s/ David Rocah
David Rocah (Bar No. 27315)
Deborah A. Jeon (Bar No. 06905)
Sonia Kumar (Bar No. 07196)
Nicholas Taichi Steiner (Bar
No. 19670)
American Civil Liberties Union
Foundation of Maryland
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of February, 2017, I caused a PDF version of the
foregoing document to be electronically transmitted to the Clerk of the Court, using the CM/ECF
System for filing and for transmittal of a Notice of Electronic Filing to all CM/ECF registrants.

By: /s/ Justin B. Cox

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