International Refugee Assistance Project et al v. Trump et al

Filing 92

Supplemental MOTION to Expedite Discovery by HIAS, Inc., Allan Hakky, International Refugee Assistance Project, Jane Doe 1, John Doe 1-4(Jadwat, Omar)

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

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,

Plaintiffs,

v.

DONALD TRUMP, et al,

Defendants.

Civil Action No.: 8:17-CV-00361-TDC

PLAINTIFFS’ RENEWED MOTION FOR
EXPEDITED DISCOVERY

I. Introduction
On February 22, 2017, Plaintiffs filed a motion to conduct limited expedited discovery,
see ECF No. 63, along with a preliminary injunction motion challenging the January 27
Executive Order’s change to the annual level of refugee admissions. Plaintiffs’ discovery motion
anticipated that the government would soon issue a new executive order and that Plaintiffs would
challenge the replacement. Because, as expected, the replacement order shares the same core
constitutional problems as its predecessor, Plaintiffs are filing, concurrently with this Renewed
Motion for Expedited Discovery, a motion for a temporary restraining order and/or preliminary
injunction (“Preliminary Injunction Motion”) seeking to enjoin the March 6 Order.
Plaintiffs’ Preliminary Injunction Motion further demonstrates that good cause exists for
the Court to order Defendants to respond to Plaintiffs’ limited discovery requests on an expedited
basis so that the Court may have the benefit of additional evidence bearing on the central
question of the March 6 Order’s discriminatory intent.
II . Plaintiffs’ Preliminary Injunction Motion Confirms There Is Good Cause for Limited
Expedited Discovery.
The Court “has wide latitude in controlling discovery,” such that “its rulings will not be
overturned absent a showing of clear abuse of discretion.” Ardrey v. United Parcel Service, 798
F.2d 679, 682 (4th Cir. 1986); see also ECF No. 63, Pls.’ Mot. for Expedited Disc. at 4.
Specifically, Federal Rules of Civil Procedure 26(d), 30(a), 33(b), 34(b), and 36 give the Court
authority to advance the timing of discovery under Rule 26 and expedite the response to the
requested discovery. See ECF No. 63, Pls.’ Mot. for Expedited Disc. at 4. Where, as here, a
plaintiff seeks expedited discovery related to a preliminary injunction, courts in this Circuit
exercise their broad discretion by applying a flexible “reasonableness or good cause” standard,

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which “tak[es] into account the totality of the circumstances.” Dimension Data N. Am., Inc. v.
NetStar-1, Inc., 226 F.R.D. 528, 531 (E.D.N.C. 2005). 1 Plaintiffs have shown good cause for the
Court to order Defendants to respond on an expedited basis to Plaintiffs’ limited discovery
requests, which are narrowly tailored to the core question of the revised March 6 Order’s
discriminatory purpose. Plaintiffs should have the opportunity to present not only evidence in
the public record, but also documents in the government’s possession that bear on this central
merits issue, in support of Plaintiffs’ request for injunctive relief.
III. The Requested Discovery Will Provide Further Evidence of the Order’s Discriminatory
Purpose and Effect and Is Narrowly Tailored to That Purpose.
Plaintiffs’ Preliminary Injunction Motion, incorporated by reference herein, amply
demonstrates the need for the requested discovery prior to the Court’s ruling on Plaintiffs’
requested injunctive relief. 2 In order to obtain an injunction, Plaintiffs must show likelihood of
success on the merits of their claims. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20
(2008). The limited set of documents Plaintiffs request, which target the background, design,
and implementation of the two executive orders, are directly relevant to this question.

1

The Court should reject Defendants’ suggestion to use a “formulation of the preliminary
injunction test” to determine the appropriateness of Plaintiffs’ request. See ECF No. 81, Defs.’ Opp’n at
4; 11. Courts have widely rejected this test as inapplicable to these circumstances – i.e., where a plaintiff
seeks to expedite discovery to support a preliminary injunction. See Sunflower Elec. Power Corp. v.
Sebelius, No. 08-2575-EFM-DWB, 2009 WL 774340, at *2 (D. Kan. Mar. 20, 2009) (collecting cases)
(“More recent cases have rejected the [preliminary injunction formulation] in favor of a reasonableness
test, particularly in cases were the expedited discovery is related to a motion for a preliminary
injunction.”). As courts have 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.” Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. O’Connor, 194 F.R.D., 624 (N.D. Ill. 2000). In any event, Plaintiffs’ preliminary injunction
motion demonstrates that Plaintiffs can also meet this more stringent burden.

2

Plaintiffs recognize that, given the March 6 Order’s short fuse, they and the Court will not have
results of the requested discovery before the Order’s stated implementation date. However, the discovery
would aid the Court in any subsequent ruling on a preliminary injunction or other relief.

3

Plaintiffs’ core claim is that, like the January 27 Order, the March 6 Order discriminates
on the basis of religion and nationality, violating the Constitution and the INA. As explained
more fully in Plaintiffs’ Preliminary Injunction Motion, determining whether invidious
discriminatory purpose was a motivating factor requires assessment of circumstantial and direct
evidence of the government’s intent. Courts look to a number of sources of evidence, including,
among others, the nature and degree of disparate impact; the historical background and specific
series of events leading to enactment; the legislative or administrative history, contemporaneous
statements made by the decisionmakers; previous versions of the policy; and any departures from
normal processes or substantive considerations. See Hunter v. Underwood, 471 U.S. 222, 22728 (1985); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977).
The Supreme Court has explained that the “development of the . . . [challenged policy] should be
considered when determining its purpose.” McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 846
(2005); see also Wallace v. Jaffree, 472 U.S. 38, 56-60 (1985). Plaintiffs’ four limited discovery
requests are narrowly tailored to seek precisely the documents in the government’s possession
that will illuminate the well-established factors used to prove discriminatory purpose. See ECF
No. 63-1 (requesting documents related to the development and implementation of the two
executive orders, including data and implementation instructions).
Defendants erroneously suggest that documents related to the now-replaced January 27
Order are irrelevant to the question of the March 6 Order’s legality because the new order differs
in some respects. This argument simply ignores the progression of the two policies and public
statements about the connection between them. See generally Pls.’ Prelim. Inj. Mot. Indeed, as
Plaintiffs’ motion demonstrates, the revised order is merely an attempt to re-package the January
27 Order to achieve the same discriminatory purpose. Id. Accordingly, evidence related to the

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design and implementation of the original order provide important context for the March 6 Order
Plaintiffs seek to enjoin.
Defendants suggest that, because Plaintiffs have pointed to compelling publicly-available
evidence to support their claim that the March 6 Order has a discriminatory purpose and effect,
Plaintiffs should not be able to seek further evidence to support a preliminary injunction through
discovery. See Defs.’ Opp’n at 8. Defendants provide no support for that assertion, and the fact
that there is already substantial evidence of the Order’s illegality in the public record actually
demonstrates that Plaintiffs’ discovery request is well-founded.

Likewise, Defendants’

contention that Plaintiffs would have no need for additional discovery because the government
has made public “numerous documents” related to agency implementation must be rejected. Id.
at 9. Plaintiffs should not be limited to proving their entitlement to an injunction based solely on
the selected documents the government has chosen to release.
In addition to the direct relevance of the requested evidence to Plaintiffs’ preliminary
injunction showing, the fact that, like the January 27 Order, the March 6 Order contains certain
features that are time-limited, also supports the reasonableness of expedited discovery.
Specifically, the March 6 Order enacts the same basic 90- and 120-day travel bans. See Sections
2(c), 6. As before, if relief is to be effective, it must be obtained as quickly; accordingly, there is
good cause to order expedited discovery to facilitate a prompt and well-informed preliminary
injunction ruling. See Pls.’ Mot. for Expedited Disc. at 6-7.
IV. Defendants’ Privilege Objections to Plaintiffs’ Discovery Requests Are Overstated and
Misplaced.
Defendants’ devote much of their opposition to discussing the objections they anticipate
raising in response to Plaintiffs’ discovery requests.

5

See Defs.’ Opp’n at 12-14.

These

objections are not only irrelevant to whether discovery should be expedited, but Defendants
overstate the protection they provide.
First, any anticipated privilege objections to Plaintiffs’ requests do not bear on the
question presented here – that is, whether there is good cause to expedite discovery so that
resulting evidence may considered at the preliminary injunction hearing.

Rather, these

objections are properly raised in responding to Plaintiffs’ discovery requests. At that point, the
parties can meet and confer about any disputes regarding the appropriate scope of Defendants’
document production. Defendants would be required to timely produce any documents not
subject to its privilege objections and provide Plaintiffs with a sufficiently detailed privilege
index for any documents that are withheld. See Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1248
(4th Cir. 1994) (evaluating agency’s claims of deliberative process privilege based on privilege
index in response to request for order compelling production of withheld documents); Heyer v.
U.S. Bureau of Prisons, No. 5:11-CT-03118-D, 2014 WL 4545946, at *2 (E.D.N.C. Sept. 12,
2014) (defendant produced log describing documents withheld on the basis of deliberative
process privilege on which court evaluated plaintiffs’ motion to compel). 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. There is no reason to diverge from this typical
discovery dispute resolution process here, and nothing undermines Plaintiffs’ showing of good
cause that it should occur on an accelerated basis to accommodate the Order’s imminent
implementation and Plaintiffs’ request to enjoin it.
Second, Defendants have overstated the protection of the privileges they assert.

In

addition to protecting only a limited set of “decisional” and “predecisional” documents, the
deliberative process privilege is a qualified privilege that may be overcome on a showing of a

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sufficient need for the information that outweighs any harm from its production. See Scott v.
PPG Indus., Inc., 142 F.R.D. 291, 294 (N.D.W. Va. 1992). In addition, Defendants bear the
burden of proving that the privilege applies. See Tafas v. Dudas, 530 F. Supp. 2d 786, 801 (E.D.
Va. 2008). Finally, even assuming that the privilege would apply to certain documents covered
by Plaintiffs’ requests, there are categories of potentially responsive documents relevant here that
are plainly not subject to even the qualified privilege. For example, the privilege does not
protect any documents that are “peripheral to actual policy formation” or that contain “purely
factual material.” Ethyl Corp., 25 F.3d at 1248; City of Virginia Beach, 995 F.2d at 1253 (4th
Cir. 1993).
Similarly, a broad range of responsive information is likely to exist that does not
implicate the Executive Privilege. Moreover, none of the cases cited by Defendants on this
point, see Defs.’ Opp’n at 13-14, involved a request for expedited discovery and, as recognized
in United States v. McGraw-Hill Companies, Inc., No. CV 13-0779-DOC JCGX, 2014 WL
8662657, at *8 (C.D. Cal. Sept. 25, 2014), the result in Cheney v. U.S. Dist. Court for D.C., 542
U.S. 367 (2004), was based in part on the Court’s finding that the subpoenas at issue were
unnecessarily broad. See Cheney, 542 U.S. at 386 (describing the “overly broad discovery
requests” approved by the district court, which included a request for any documents even
identifying or referencing certain individuals).
V.

Conclusion
Plaintiffs respectfully request that the Court order Defendants to respond to Plaintiffs’

discovery requests, see ECF No. 63-1, including producing responsive documents, within seven
days of the Court’s order.

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Dated: March 10, 2017

Respectfully submitted,
/s/ Omar Jadwat
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]

Justin B. Cox (Bar No. 17550)
National Immigration Law Center
1989 College Ave. NE
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]
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]

Cecillia D. Wang
Cody H. Wofsy
American Civil Liberties Union
Foundation
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]
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[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]

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on March 10, 2017, I electronically filed this Motion for Plaintiffs
with the Court Clerk using the ECF system, which will send notification to Defendants’
registered counsel.
Dated: March 10, 2017

/s/ Omar Jadwat
Omar Jadwat