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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS
LEAGUE, et al.,
Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Hon. Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

Statement Regarding Concurrence
Pursuant to E.D. Mich. L.R. 7.1(a) and L.R. 37.1, Plaintiffs’ counsel conferred
with Defendants’ counsel on May 23, 2017, regarding Defendants’ objections to the
requested discovery and to seek concurrence in Plaintiffs’ motion to compel.
Counsel for Defendants stated that they do not concur in this motion for the reasons
set forth in their written objections.
PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Plaintiffs, by and through their undersigned counsel, move to compel the
production of the document sought in Plaintiffs’ Document Request No. 1. The
grounds for this Motion are set forth more fully in the attached supporting
Memorandum.

Dated: May 26, 2017

Respectfully submitted,

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Counsel for Arab American Civil Rights League
AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad
Nabih H. Ayad (P59518)
645 Griswold St., Ste. 2202
Detroit, MI 48226
(313) 983-4600
nayad@ayadlaw.com

/s/ Rula Aoun
Rula Aoun (P79119)
4917 Schaefer Rd.
Dearborn, MI 48126
(313) 633-0231
rula@acrlmich.org

HAMMOUD, DAKHLALLAH &
ASSOCIATES, PLLC
/s/ Kassem M. Dakhlallah
Kassem Dakhlallah (P70842)
6050 Greenfield Rd., Suite 201
Dearborn, MI 48126
(313) 551-3038
kd@hdalawgroup.com

VIDA LAW GROUP, PLLC
/s/ Mona Fadlallah
/s/ Natalie C. Qandah
Mona Fadlallah (P64197)
Natalie C. Qandah (P58434)
43050 Ford Road, Suite 160
Canton, MI 48187
Phone: (734) 456-9004
Facsimile: (734) 456-9003
Mona@vidalawpllc.com
Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce
FARHAT & ASSOCIATES, PLLC
/s/ Helal Farhat
Helal Farhat (P64872)
Counsel for the American Arab
Chamber of Commerce
6053 Chase Rd.
Dearborn, MI 48126
(313) 945-5100
hfarhat@saflegal.com

AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad
Nabih H. Ayad (P59518)
Attorney for Plaintiffs
645 Griswold St., Ste. 2202
Detroit, MI 48226
(313) 983-4600
nayad@ayadlaw.com

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Counsel for Hend Alshawish, Salim Alshawish, Yousef Abdullah, Fahmi
Jahaf, and Mohamed Alshega
AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad
Nabih H. Ayad (P59518)
Attorney for Plaintiffs
645 Griswold St., Ste. 2202
Detroit, MI 48226
(313) 983-4600
nayad@ayadlaw.com

/s/ Rula Aoun
Rula Aoun (P79119)
4917 Schaefer Rd.
Dearborn, MI 48126
(313) 633-0231
rula@acrlmich.org

HAMMOUD, DAKHLALLAH &
ASSOCIATES, PLLC
/s/ Kassem M. Dakhlallah
Kassem Dakhlallah (P70842)
6050 Greenfield Rd., Suite 201
Dearborn, MI 48126
(313) 551-3038
kd@hdalawgroup.com

VIDA LAW GROUP, PLLC
/s/ Mona Fadlallah
/s/ Natalie C. Qandah
Mona Fadlallah (P64197)
Natalie C. Qandah (P58434)
43050 Ford Road, Suite 160
Canton, MI 48187
Phone: (734) 456-9004
Facsimile: (734) 456-9003
Mona@vidalawpllc.com
Natalie@vidalawpllc.com

/s/ Ali K. Hammoud
Ali K. Hammoud (P73076)
6050 Greenfield Rd., Suite 201
Dearborn, MI 48126
(313) 551-3038
ah@hdalawgroup.com

3

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Counsel for American Civil Liberties Union of Michigan, Arab American and
Chaldean Council, Arab American Studies Association, Adeeb Saleh,
Sofana Bella, Hilal Alkatteeb and S.A., a minor through her
Parent and Next Friend, Hilal Alkatteeb
/s/ Miriam Aukerman
Miriam Aukerman (P63165)
American Civil Liberties Union Fund
of Michigan
1514 Wealthy SE, Suite 242
Grand Rapids, MI 49506
(616) 301-0930
maukerman@aclumich.org

/s/ Samuel R. Bagenstos
Samuel R. Bagenstos (P73971)
Cooperating Attorney,
American Civil Liberties Union
Fund of Michigan
625 South State Street
Ann Arbor, Michigan 48109
(734) 647-7584
sbagen@gmail.com

/s/ Michael J. Steinberg
Michael J. Steinberg (P43085)
Daniel S. Korobkin (P72842)
Kary L. Moss (P49759)
American Civil Liberties Union Fund
of Michigan
2966 Woodward Avenue
Detroit, MI 48201
(313) 578-6814
msteinberg@aclumich.org

/s/ Margo Schlanger
Margo Schlanger (N.Y. Bar
#2704443 (3d Dept))
Cooperating Attorney,
American Civil Liberties Union
Fund of Michigan
625 South State Street
Ann Arbor, Michigan 48109
(734) 615-2618
margo.schlanger@gmail.com

/s/ Jason C. Raofield
Jason C. Raofield (D.C. Bar #463877)
Nishchay H. Maskay (D.C. Bar
#998983)
Covington & Burling LLP
One City Center
850 10th Street, NW
Washington, D.C. 20001
(202) 662-5072
jraofield@cov.com

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS
LEAGUE, et al.,
Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Hon. Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION TO COMPEL PRODUCTION OF DOCUMENTS

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TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1
STATEMENT OF FACTS ....................................................................................... 2
I.

Candidate Trump’s Call for an Explicit Muslim Ban .................................... 2

II.

The Giuliani Memo......................................................................................... 3

III.

Statements From Another Giuliani Commission Member Confirm the
Direct Link Between the Giuliani Memo and the Executive Order. .............. 5

IV.

The Single Document at Issue in This Motion ............................................... 6

PROCEDURAL BACKGROUND AND DEFENDANTS’ OBJECTIONS ........... 6
STANDARD OF REVIEW .................................................................................... 10
ARGUMENT .......................................................................................................... 10
THE GIULIANI MEMO IS RESPONSIVE AND HIGHLY
RELEVANT TO PLAINTIFFS’ CLAIMS. ................................................. 10
A.

The Discovery Request Is Factually Relevant and Proportional. ...... 11

B.

The Giuliani Memo Is Relevant to the Establishment Clause
Claim. ................................................................................................. 12

C.

The Giuliani Memo Is Also Relevant to Plaintiffs’ Other Claims..... 14

THE COURT SHOULD ORDER DEFENDANTS TO COMPLY
WITH THEIR DISCOVERY OBLIGATIONS. .......................................... 15
A.

The President Is Not Immune from Discovery. ................................. 16

B.

Defendants Must Conduct a Reasonable Search for the Giuliani
Memo. ................................................................................................. 22

C.

The Court Has Already Considered and Rejected Defendants’
Arguments for Perpetual Delay. ......................................................... 26

CONCLUSION ....................................................................................................... 27
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TABLE OF AUTHORITIES
Page(s)
Cases
ACLU of Ky. v. Mercer Cnty.,
432 F.3d 624 (6th Cir. 2005) ..............................................................................13
Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J.,
760 F.3d 227 (2d Cir. 2014) ...............................................................................13
Aziz v. Trump,
No. 17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ..............................20
In re Bankers Trust Co.,
61 F.3d 465 (6th Cir. 1995) ..........................................................................22, 24
In re CareSource Mgmt. Grp.,
289 F.R.D. 251 (S.D. Ohio 2013) .......................................................................25
Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367 (2004) ................................................................................19, 20, 21
Citizens United v. FEC,
558 U.S. 310 (2010) ............................................................................................15
Clinton v. Jones,
520 U.S. 681 (1997) ............................................................................................16
Coleman v. Ann Arbor Transp. Auth.,
904 F. Supp. 2d 670 (E.D. Mich. 2012) .............................................................15
Dairyland Power Co-op v. United States,
79 Fed. Cl. 659 (2007) ........................................................................................21
Fish v. Kobach,
No. 16-cv-2105, 2017 WL 1929010 (D. Kan. May 10, 2017) ...........................18
Flagg v. City of Detroit,
252 F.R.D. 346 (E.D. Mich. 2008) .....................................................................22

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Flagstar Bank v. Fed. Ins. Co.,
No. 05-cv-70950, 2006 WL 6651780 (E.D. Mich. Aug. 21, 2006) ...................11
Hansen Beverage Co. v. Innovation Ventures, LLC,
No. 09-cv-50630, 2009 WL 2351769 (E.D. Mich. July 29, 2009) ....................25
Haw. v. Trump,
No. 17-cv-0050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) ..........................20
Haworth, Inc. v. Herman Miller, Inc.,
998 F.2d 975 (Fed. Cir. 1993) ............................................................................24
IRAP v. Trump,
No. 17-1351, 2017 WL 2273306 (4th Cir. May 25, 2017) ................................20
JPMorgan Chase Bank v. Winget,
No. 08-cv-13845, 2016 WL 7242136 (E.D. Mich. Dec. 15, 2016) ....................10
Jud. Watch, Inc. v. Nat’l Energy Policy Dev. Grp.,
230 F. Supp. 2d 12 (D.D.C. 2002) ......................................................................16
Khami v. Ortho-McNeil-Janssen Pharm., Inc.,
No. 09-cv-11464, 2011 WL 1045545 (E.D. Mich. Mar. 17, 2011) ................... 22
Lilly Invs., LLC v. City of Rochester,
No. 14-cv-10712, 2015 WL 753491 (E.D. Mich. Feb. 23, 2015) ......................15
Marie v. Am. Red Cross,
771 F.3d 344 (6th Cir. 2014) ..............................................................................27
McCreary Cnty. v. ACLU of Ky.,
545 U.S. 844 (2005) ................................................................................12, 13, 14
Metavante Corp. v. Emigrant Sav. Bank,
No. 05-cv-1221, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008) ........................25
Modrovich v. Allegheny Cnty.,
385 F.3d 397 (3d Cir. 2004) ...............................................................................13
Page v. Va. State Bd. of Elections,
15 F. Supp. 3d 657 (E.D. Va. 2014) ...................................................................14

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Perry v. Schwarzenegger,
591 F.3d 1147 (9th Cir. 2010) ............................................................................26
Salazar v. Buono,
559 U.S. 700 (2010) ............................................................................................13
Satawa v. Macomb Cnty. Rd. Comm’n,
689 F.3d 506 (6th Cir. 2012) ..............................................................................13
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ............................................................................18
United States v. Blue Cross Blue Shield of Mich.,
No. 10-cv-14155, 2012 WL 4513600 (E.D. Mich. Oct. 1, 2012) ......................24
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ............................................................................................14
Weinbaum v. City of Las Cruces,
541 F.3d 1017 (10th Cir. 2008) ..........................................................................13
Other Authorities
Fed. R. Civ. P. 16(b)(1)(B) ........................................................................................8
Fed. R. Civ. P. 16(b)(2)..............................................................................................8
Fed. R. Civ. P. 26(b)(1)............................................................................................11
Fed. R. Civ. P. 26(b)(2)(C)(i) ..................................................................................25
Fed. R. Civ. P. 26(f) .............................................................................................8, 27
Fed. R. Civ. P. 34(b)(2)(A) ........................................................................................7
Fed. R. Civ. P. 37 .....................................................................................................10

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INTRODUCTION
During the presidential campaign, Candidate Trump called for an explicit ban
on Muslims entering the United States. The Government does not deny this fact. Nor
does it deny that a Muslim ban is unconstitutional. Instead, the Government insists
Candidate Trump jettisoned his plan for a Muslim ban and decided to bar individuals
from certain countries that allegedly present a high risk of terrorism (and which
happen to be overwhelmingly Muslim). At the heart of this case is a factual dispute:
did President Trump abandon his goal of a Muslim ban and adopt the Executive
Order for national security reasons, or is the Executive Order in fact a disguised
version of Candidate Trump’s Muslim ban motivated by the same religious animus?
This Motion seeks production of a single document that is directly relevant to
this factual dispute. In numerous interviews since July 2016, Rudolph Giuliani has
insisted that Candidate Trump changed his proposal –– from a Muslim ban to one
focused on individuals from specific countries –– because of a memorandum
prepared by a “commission” Mr. Giuliani put together during the campaign.
Defendants argue that this memorandum is irrelevant, because the Executive Order
was “signed by the President many months later in his official capacity, after he took
the oath of office and formed his Administration.” Raofield Decl., ¶ 4, Ex. B, at 2.
To the contrary, in a televised interview the day after President Trump signed
the original Executive Order, Mr. Giuliani defended the Order as “perfectly legal,”
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saying it was “based on” the recommendations of the Giuliani commission. Id., ¶ 18,
Ex. P. The next day, the spokesperson for another member of the Giuliani
commission said the Executive Order was “based in part” on the memorandum of
the Giuliani commission. Id., ¶ 16, Ex. N. Plaintiffs seek to compel production of
that memorandum.
STATEMENT OF FACTS
I.

Candidate Trump’s Call for an Explicit Muslim Ban
On December 7, 2015, Candidate Trump declared that as President he would

implement “a total and complete shutdown of Muslims entering the United States.”
He insisted this Muslim ban was necessary to prevent “horrendous attacks” on U.S.
soil because “there is great hatred towards Americans by large segments of the
Muslim population.” See Raofield Decl., ¶ 6, Ex. D.
In an interview in March 2016, Candidate Trump explained his rationale: “I
think Islam hates us.” Id., ¶ 7, Ex. E. When asked during a debate whether his
comments were meant to refer to all 1.6 billion Muslims worldwide, he responded,
“I mean a lot of them!” Id., ¶ 8, Ex. F. He characterized the threat to national security
as involving “large portions of a group of people, Islam, large portions want to use
very, very harsh means.” Id. In an interview later that month, he asserted: “Frankly,
look, we’re having problems with the Muslims, and we’re having problems with
Muslims coming into the country.” Id., ¶ 9, Ex. G.
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II.

Pg ID 1647

The Giuliani Memo
In May 2016, following widespread condemnation of his proposed Muslim

ban, Candidate Trump announced that he was turning to one of his campaign
advisors, Rudolph Giuliani, for assistance. In numerous public comments since that
time, Mr. Giuliani has explained that he responded by putting together a
“commission” to advise Candidate Trump.
In early July 2016, Mr. Giuliani described a memorandum (the “Giuliani
Memo”) his commission had prepared for Candidate Trump, “spelling out sort of
what you can do, and what you can’t do, and what you could do with legislation.”
Id., ¶ 11, Ex. I. Mr. Giuliani explained that this Memo had caused the candidate’s
proposal to shift from a “general ban” based on religion to “very specific, targeted
criteria” focusing on specific countries. Id. When Candidate Trump was asked later
that month whether this reflected a rollback of his blanket ban on Muslims, he said,
“you could say it’s an expansion.” Id., ¶ 12, Ex. J. One month before the election,
he claimed that: “The Muslim ban is something that in some form has morphed into
extreme vetting from certain areas of the world.” Id., ¶ 13, Ex. K.
In a television interview one week after the election, on November 13, 2016,
Mr. Giuliani again insisted that the Giuliani Memo had caused Candidate Trump to
abandon his call for a Muslim ban:

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Actually, within a day or two of his saying that, he called
me and asked me to put a little group together that included
Congressman McCaul, General Flynn 1 ― I can’t
remember who else, a few other people. We wrote a paper
for him. And he amended it to the ban would be restricted
to particular countries, and it would not be a ban.
Id., ¶ 14, Ex. L. 2
On January 27, 2017, President Trump signed Executive Order 13769 (the
“Original Executive Order”). The very next day, during a televised interview, Mr.
Giuliani gave the following response when asked whether the Executive Order had
“anything to do with religion” and why it focused on seven specific countries:
I’ll tell you the whole history of it. So, when he first
announced it, he said “Muslim ban.” He called me up. He
said, “Put a commission together. Show me the right way
to do it legally.”
I put a commission together…. And what we did was, we
focused on, instead of religion, danger. The areas of the
world that create danger for us. Which is a factual basis,
not a religious basis. Perfectly legal, perfectly sensible.
And that’s what the ban is based on. 3

1

During the campaign, General Flynn described “Islamism” as a “vicious cancer
inside the body of 1.7 billion people on this planet.” Id., ¶ 10, Ex. H.
2

In yet another interview just two weeks ago, Mr. Giuliani again credited the advice
of the Giuliani commission with having convinced Candidate Trump to move away
from his proposal for an explicit Muslim ban. Id., ¶ 17, Ex. O.
3

Interview with Rudy Giuliani, Justice with Judge Jeanine, at 3:26 (Fox News
television broadcast Jan. 28, 2017), available at http://www.nydailynews.com/
news/politics/rudy-giuliani-trump-tasked-craft-muslim-ban-article-1.2958588.
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Thus, after the Executive Order was signed, Mr. Giuliani confirmed that the
President’s decision to focus on seven specific countries was “based on” the
recommendations of the Giuliani commission.
III.

Statements From Another Giuliani Commission Member Confirm the
Direct Link Between the Giuliani Memo and the Executive Order.
According to Mr. Giuliani, a key member of his commission was

Congressman McCaul, Chairman of the House Committee on Homeland Security.
In an interview on January 30, 2017, Susan Phelan, the spokesperson for Rep.
McCaul’s committee, confirmed that “the [Executive Order] was based in part on a
memo McCaul and former New York mayor Rudolph Giuliani submitted to the
Trump campaign last fall.” Id., ¶ 16, Ex. N. Similarly, Defendant Kelly has
confirmed this. Id., ¶ 19, Ex. Q.
One week later, Rep. McCaul himself confirmed in an interview that the
Giuliani commission “drafted a memo back last May or June to advocate to
candidate Trump why a Muslim ban was unconstitutional and to look at vetting in
high threat areas.” Id., ¶ 15, Ex. M. He described the Giuliani Memo as “advocating
a shift from a Muslim ban, which [Trump] was campaigning on, which we thought
was unconstitutional, rather to an enhanced vetting process of immigrants and
refugees based on risk — not religion — from high-threat areas.” Id.

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IV.

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The Single Document at Issue in This Motion
Document Request No. 1 seeks production of the Giuliani Memo:
A copy of the “memorandum” (or “white paper”) that
Rudolph Giuliani and others provided to Donald J. Trump
or others working for or on behalf of the Trump Campaign
in approximately May to July 2016, which was discussed
extensively by Mr. Giuliani during public appearances on
or about July 8, 2016, November 13, 2016, and January
28, 2017, by Rep. Michael McCaul in public appearances
in late January and early February 2017, and by Susan
Phelan, Spokeswoman for the House Committee on
Homeland Security, on or about January 30, 2017.4

Id., ¶ 3, Ex. A, at 8. Defendants have refused to produce the Giuliani Memo based
on a laundry list of objections. Id., ¶ 4, Ex. B.
PROCEDURAL BACKGROUND AND DEFENDANTS’ OBJECTIONS
Defendants’ objections reflect their latest attempt to delay production of the
Giuliani Memo or any other discovery in this case.
It has been ten weeks since Plaintiffs first sought production of the Giuliani
Memo in their motion for expedited discovery, filed on March 16, 2017. ECF #43.
The Government opposed, and the Court denied the motion without prejudice,
finding that Plaintiffs had not shown “good cause” to permit discovery prior to entry
of a scheduling order, and suggesting Plaintiffs narrow some of their other requests.
In its Order, however, the Court: (i) said it was “prepared to enter a scheduling order

4

The footnote to the Document Request cited the sources attached as Exhibits I, L,
M, N, and P to the Raofield Declaration.
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under Rule 16(b) that contemplates reasonably expedited discovery,” (ii) suggested
the parties proceed with a Rule 26(f) conference and initial disclosures which “could
well reveal much of the information requested by Plaintiffs,” 5 and (iii) said it would
“soon” schedule a conference with the parties. ECF #69 at Pg. ID 978.
On April 6, 2017, Plaintiffs attempted for a second time to seek production of
the Giuliani Memo. As suggested by the Court, Plaintiffs arranged a Rule 26(f)
conference with counsel for the Government. However, when Plaintiffs indicated at
the start of the call that they were serving document requests (responses to which
were due within 30 days of the Rule 26(f) conference under Rule 34(b)(2)(A)),
counsel for the Government took the position that the conference was something
other than a Rule 26(f) conference and insisted that, as a result, Plaintiffs’ attempt to
pursue discovery and/or initial disclosures was premature. Raofield Decl., ¶ 4, Ex.
B at Ex. 2, pp. 7-9 (April 13, 2017 conference transcript).
One week later, on April 13, 2017, the Court held a telephonic conference
with the parties. Plaintiffs informed the Court that counsel for Defendants were
unilaterally delaying discovery by refusing to proceed with a Rule 26(f) conference.
Plaintiffs asked the Court to enter a scheduling order, noting that a Rule 26(f)

5

In their initial disclosures, Defendants have now refused to identify any witnesses
or documents (other than the Executive Order and associated “guidance documents
formally issued by Defendants”). Raofield Decl., ¶ 5, Ex. C.
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conference would serve no purpose since the Government’s “position is simply that
there should be no discovery at all.” Id., ¶ 4, Ex. B at Ex. 2 at 7-13. At that point,
however, Defendants informed the Court that they would be filing a motion to
dismiss along with a motion to stay entry of a scheduling order. Id.
On April 17, 2017, Defendants filed their motion asking the Court to delay
entry of a scheduling order, insisting discovery was premature because they had now
filed a “thoroughly dispositive Motion to Dismiss.” ECF #77, at Pg. ID 1051.
Defendants also argued that discovery would raise complicated issues of executive
privilege. Id. at Pg. ID 1052. Plaintiffs filed a response four days later in which they
noted that, based on the April 13 conference, the Court could now enter a scheduling
order under Rule 16(b)(1)(B). ECF #78, at Pg. ID 1087-89. In their reply, Defendants
did not dispute that the Court had the power to do that. ECF #82. Now, however, in
an attempt to forestall discovery that is reminiscent of their procedural
gamesmanship with respect to the Rule 26(f) conference, Defendants’ objections to
Document Request 1 attack the Court for entering a scheduling order, 6 even though
the Court was required to do so under Rule 16(b)(2), absent good cause for delay.

6

Ex. B at 14 (insisting the Court’s May 11 Order violated the Federal Rules of Civil
Procedure because the Court “did not hold a Rule 16 Scheduling conference, but
instead re-characterized an April 13, 2017, Status Conference as a Rule 16(a)(1)(B)
Scheduling Conference, after that status conference had already occurred”).
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In its May 11, 2017 Order denying Defendants’ motion to stay, the Court
pointed to Defendants’ argument that statements during the campaign were “made
outside the formal government decisionmaking process” and concluded that
“Defendants cannot repeatedly make that argument, only later to assert an executive
privilege objection to discovery” regarding pre-inauguration evidence. ECF #89 at
Pg. ID 1224-25. In addition, the Order stated: “The Court believes Defendants
exaggerate the number of legitimate objections they will have and the complexity of
the issues those objections will raise.” Id.
The Court ordered the parties to exchange initial disclosures, and it set a
schedule for Defendants to respond to Plaintiffs’ limited discovery requests. Finally,
to ensure efficient briefing of any discovery disputes, the Order provided: “If
Defendants object to any discovery request, they must set forth their reasoning and
legal justification, with full citation and argument, in the response to Plaintiffs.” Id.
at Pg. ID 1226. Plaintiffs were directed to attach Defendants’ response to their
motion to compel.
Defendants have refused to produce a copy of the Giuliani Memo in response
to Document Request 1. Instead, Defendants have asserted a laundry list of
objections; purported to “reserve[] the right to assert additional objections” in the
future; and refused to make any effort to locate a copy of the Giuliani Memo. In
addition, even though the Giuliani Memo was created before the Republican
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National Convention (and therefore could not possibly be covered by executive
privilege), Defendants refused, either in their objections or in the parties’ meet and
confer, to take a position at this time on whether the Memo is covered by executive
privilege. Despite the Court’s clear instruction to set out all objections now,
Defendants state that only after the Court rejects their current laundry list of
objections will they take a position as to whether the Giuliani Memo is “potentially
subject to a variety of privilege claims.” Ex B., at 33.
STANDARD OF REVIEW
“The scope of discovery under the Federal Rules of Civil Procedure is
traditionally quite broad.” JPMorgan Chase Bank v. Winget, No. 08-cv-13845, 2016
WL 7242136, at *2 (E.D. Mich. Dec. 15, 2016). If a party fails to produce documents
as required by the Rules, Rule 37 permits a motion to compel production. Id.
ARGUMENT
THE GIULIANI MEMO IS RESPONSIVE AND HIGHLY RELEVANT
TO PLAINTIFFS’ CLAIMS.
Defendants do not dispute that the Giuliani Memo is responsive to Document
Request 1. Rather, they question its relevance to Plaintiffs’ claims.
The standard for relevance in discovery disputes is well known. Plaintiffs are
entitled to “discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.
26(b)(1). “The determination of ‘relevance’ is within the court’s sound discretion,”
10

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Pg ID 1655

and “should be broadly and liberally construed.” Flagstar Bank v. Fed. Ins. Co., No.
05-cv-70950, 2006 WL 6651780, at *2 (E.D. Mich. Aug. 21, 2006) (citations
omitted). In considering proportionality, the Court should consider, inter alia, “the
importance of the issues at stake in the action,” “the parties’ relative access to
relevant information,” “the importance of the discovery in resolving the issues,” and
“the burden or expense of the proposed discovery.” Fed. R. Civ. P. 26(b)(1).
However, a document “need not be admissible in evidence to be discoverable.” Id.
A.

The Discovery Request Is Factually Relevant and Proportional.

As a factual matter, the Government questions the Memo’s relevance because
it was created “some five months before” the election. Ex. B at 2. But there is no
serious question that the Memo is relevant. Just one day after the first Executive
Order was signed, Mr. Giuliani underscored its relevance when, in response to a
question of whether the Executive Order had “anything to do with religion,” he said
the Executive Order “is based on” the work of the Giuliani commission. Supra at 4.
Similarly, on multiple prior occasions, Mr. Giuliani had insisted that
Candidate Trump abandoned his call for a Muslim ban and focused on specific
countries because of the Giuliani Memo. Supra at 3-5. Another one of the authors of
the Giuliani Memo, Rep. McCaul, has also confirmed the relationship between the
Memo and the Executive Orders. Supra at 5. That is how Plaintiffs know about the
Memo, and it is why Plaintiffs first requested it in discovery ten weeks ago.
11

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Pg ID 1656

Given that the Memo is central to Plaintiffs’ claims, and that searching for one
document involves virtually no burden, the discovery sought is clearly proportional
to the needs of the case. Defendants’ insistence that it would be too burdensome to
search for a single document is laughable given that this objection –– which will
now consume the Court’s resources as well –– appears in a 34-page brief that would
have been unnecessary had they simply located and produced the document.
B.

The Giuliani Memo Is Relevant to the Establishment Clause Claim.

In arguing that only “official government actions” are relevant to an
Establishment Clause inquiry, Ex. B at 26, the Government conflates two inquiries.
Plaintiffs do not contend that the Giuliani Memo, or other nonpublic preinauguration documents, create an Establishment Clause violation on their own. The
Executive Order itself does that. But when the Government insists that its action had
a “secular purpose,” McCreary says that courts may not take the Government at its
word, and must instead determine whether this stated purpose was “genuine, not a
sham, and not merely secondary to a religious objective.” McCreary Cnty. v. ACLU
of Ky., 545 U.S. 844, 864 (2005). Contrary to Defendants’ assertions, it does not
require “judicial psychoanalysis of a drafter’s heart of hearts” to review an advisory
memo written for the purpose of guiding policy decisions. Id. at 862.
To the contrary, McCreary cautions that courts should not “turn a blind eye to
the context in which [the] policy arose” or be a “pushover for any secular claim.” Id.
12

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Pg ID 1657

at 864, 866. The McCreary inquiry relies on an objective observer who “knows all
of the pertinent facts and circumstances.” Salazar v. Buono, 559 U.S. 700, 721
(2010) (emphasis added); see also Weinbaum v. City of Las Cruces, 541 F.3d 1017,
1031 n.16 (10th Cir. 2008) (“[T]he ‘objective observer’ is presumed to know far
more than most actual members of a given community.”). And courts considering
Establishment Clause claims routinely rely on information obtained in discovery
about the purpose of government actions. See, e.g., Satawa v. Macomb Cnty. Rd.
Comm’n, 689 F.3d 506, 527 (6th Cir. 2012) (deposition testimony of government
officials); ACLU of Ky. v. Mercer Cnty., 432 F.3d 624, 627, 631 (6th Cir. 2005)
(affidavit of government official about the purpose of a religious display); Am.
Atheists, Inc. v. Port Auth. of N.Y. & New Jersey, 760 F.3d 227, 241 (2d Cir. 2014)
(communications from defendants to religious groups); Modrovich v. Allegheny
Cnty., 385 F.3d 397, 411-12 (3d Cir. 2004) (deposition testimony of county official);
see also ECF #89, at Pg. ID 1223 (“[T]his Court finds that it is not limited to the
four corners of the Executive Order in determining its constitutionality.”).
In suggesting that the Court should ignore a memorandum commissioned to
explain how to impose a policy motivated by religious discrimination without
judicial scrutiny, Defendants ask this Court “to ignore perfectly probative evidence;
they want an absentminded objective observer, not one presumed to be familiar with
the history of the government’s actions and competent to learn what history has to
13

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show.” McCreary, 545 U.S. at 866. The Giuliani Memo is an important link in that
history: Candidate Trump announced a facially unconstitutional “Muslim Ban”;
after receiving pushback, he sought guidance on how to institute the ban in a way
that would survive legal challenges; he received the Giuliani Memo and other
guidance; he converted his Muslim Ban into the first Executive Order and was still
unable to avoid judicial disapproval; and so he devised the Revised Executive Order,
describing it as “a watered-down version of the first [order].” Raofield Decl., ¶ 20,
Ex. R. The fact that the Government has attempted to disguise the religious intent of
the Revised Executive Order only reinforces that Plaintiffs are entitled to discovery
to establish that the stated secular purpose is a “sham.”
C.

The Giuliani Memo Is Also Relevant to Plaintiffs’ Other Claims.

As the Court has pointed out, Plaintiffs “seek only limited discovery that will
be relevant to any claim.” ECF #89, at Pg. ID 1222 (emphasis added).
Defendants do not even address the relevance of the Giuliani Memo to
Plaintiffs’ equal protection claim. Courts routinely allow discovery as part of the
equal protection “inquiry into such circumstantial and direct evidence of intent as
may be available.” Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 266 (1977). Thus, courts assessing claims under strict scrutiny rely on
“documents containing the opinions and subjective beliefs of [government officials]
or their key advisors.” Page v. Va. State Bd. of Elections, 15 F. Supp. 3d 657, 666
14

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(E.D. Va. 2014). Courts applying rational basis review also permit discovery that is
“relevant to the issue of potential animus.” Lilly Invs., LLC v. City of Rochester, No.
14-cv-10712, 2015 WL 753491, at *10 (E.D. Mich. Feb. 23, 2015).
Defendants also ignore Plaintiffs’ free speech claim, on which Plaintiffs are
similarly entitled to “full discovery.” Coleman v. Ann Arbor Transp. Auth., 904 F.
Supp. 2d 670, 699 n.17 (E.D. Mich. 2012). The purpose of the Executive Orders is
clearly relevant to this claim, because the First Amendment prohibits “restrictions
distinguishing among different speakers, allowing speech by some but not others.”
Citizens United v. FEC, 558 U.S. 310, 340 (2010).
Finally, although Mandel does not apply here, discovery would be appropriate
to establish whether the Government’s proffered justification for the Revised
Executive Order is “bona fide” within the meaning of Mandel. See ECF #86, at Pg.
ID 1191-95.
THE COURT SHOULD ORDER DEFENDANTS TO COMPLY WITH
THEIR DISCOVERY OBLIGATIONS.
The Government is engaged in a shell game to keep the Giuliani Memo out of
reach of Plaintiffs and the Court, variously resorting to breathtaking assertions of
presidential immunity, threats of future claims of privilege, and bizarre contortions
of normal discovery practice, all while refusing even to search for a single document
or respect this Court’s May 11 Order. All of the rationales advanced by the
Government to avoid discovery should be summarily rejected.
15

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A.

Pg ID 1660

The President Is Not Immune from Discovery.

The Government takes the extraordinary (and constitutionally concerning)
position that this Court “could not compel the President to comply with a civil
discovery request.” Ex. B, at 23. The Government also appears to take the position
that whenever the President is named as a defendant in litigation, the entire federal
government is immunized from discovery. This is utterly inconsistent with the most
basic principles of tripartite government, and is not supported by the case law
Defendants cite.
“The fact of the matter is that the offices of the President and Vice President
currently respond to discovery requests on a regular basis, asserting executive
privilege with respect to specific requests for particular items when necessary.”
Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 230 F. Supp. 2d 12, 15
(D.D.C. 2002). The Government “errs by presuming that interactions between the
Judicial Branch and the Executive, even quite burdensome interactions, necessarily
rise to the level of constitutionally forbidden impairment of the Executive’s ability
to perform its constitutionally mandated functions.” Clinton v. Jones, 520 U.S. 681,
702 (1997). To the contrary, “[s]itting Presidents have responded to court orders to
provide testimony and other information with sufficient frequency that such
interactions between the Judicial and Executive Branches can scarcely be thought a
novelty.” Id. at 704-05 (reviewing instances where past Presidents have complied
16

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Pg ID 1661

with discovery). “It is settled law that the separation-of-powers doctrine does not bar
every exercise of jurisdiction over the President of the United States.” Id. (quoting
Nixon v. Fitzgerald, 457 U.S. 731, 753-754 (1982)).
Defendants assert that this Court has no power to order document production
from the President, while simultaneously refraining from asserting executive
privilege over the Giuliani Memo at this time. Instead, they demand that they be
allowed to assert any applicable privileges at a later time.
If Defendants wished to assert executive privilege over the Giuliani Memo,
they should have afforded the Court the respect of doing so explicitly. The Court
ordered Defendants to “set forth their reasoning and legal justification” for any
objections to discovery they wish to assert. ECF #89 at Pg. ID 1226. Defendants
have likely not asserted executive privilege over the Giuliani Memo because it would
be frivolous to assert this privilege over a document provided to a political candidate
months before he took office — and, indeed, before even the Republican National
Convention. If Donald Trump could retrospectively assert executive privilege under
these circumstances, so too could Ted Cruz and Mike Huckabee. And the
Government does not need to review the document to reach this conclusion.
The Government likewise cannot show that the Giuliani Memo is protected
by either species of executive privilege, i.e., the “presidential communications”
privilege,

which

protects

certain

“materials
17

that

reflect

presidential

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Pg ID 1662

decisionmaking,” or the “deliberative process” privilege, which protects
predecisional documents that “reveal the government’s deliberations.” In re Sealed
Case, 121 F.3d 729, 744, 737 (D.C. Cir. 1997).
The presidential communications privilege must be “narrowly construed,” and
“the government bears the burden of proving that the communications occurred in
conjunction with the process of advising the President” on “official government
matters.” Id. at 749, 752. “[N]o court has ever recognized that this privilege applies
before a president takes office.” Fish v. Kobach, No. 16-cv-2105, 2017 WL
1929010, at *5 (D. Kan. May 10, 2017). This makes perfect sense, as the privilege
is rooted in “the President’s Article II powers and responsibilities” and protects
“materials that reflect presidential decisionmaking.” In re Sealed Case, 121 F.3d at
748, 744. As a candidate, Mr. Trump had no power under Article II. Nor are we
aware of any case where the deliberative process privilege has been applied to a
communication that does not involve the government.7
As the Court has recognized, the Government’s executive privilege objection
is particularly inappropriate here, because the Government is currently arguing to

7

Even if the privilege applied, however, the Court should order production because
the Giuliani Memo is “directly relevant to issues that are expected to be central” to
the case and “is not available with due diligence elsewhere.” In re Sealed Case, 121
F.3d at 754-55. The next step would be for the Court “to review the document[] in
camera to excise non-relevant material” and then release the document. Id. at 745.
18

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Pg ID 1663

courts around the country that statements made by Trump as a candidate are legally
irrelevant because he was a private citizen. ECF #89 at Pg. ID 1224-25. Defendants
are trying to avoid choosing between a frivolous argument that the Giuliani Memo
is privileged and the necessary concession that it is not. The Court should not allow
Defendants to prolong this litigation indefinitely to delay making that choice.
To avoid having to argue that pre-election materials are subject to executive
privilege (which would undermine the Government’s argument that pre-election
statements are irrelevant), the Government instead tries to invoke the privilege
obliquely. The Government relies on Cheney, a case that concerns when in the
discovery process high-level Executive Branch officials must evaluate a trove of
documents for potential executive privilege, not whether officials can refuse to
produce documents that are not privileged. Cheney requires litigants seeking
extensive discovery to show a real need for an “intrusion into the operation of the
Office of the President” before requiring the Government to catalog which
documents may be privileged. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 387
(2004) (quotation marks omitted). Cheney does not apply unless the Government is
prepared to assert executive privilege, which it conspicuously failed to do here.
Indeed, the circumstances of Cheney are completely unlike those in this case.
The Cheney Court was concerned about the possibility of “insubstantial legal
claims” triggering broad discovery obligations. Id. at 386. The decisions of other
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courts considering similar challenges to the Executive Orders make clear that the
legal claims here are anything but “insubstantial.” See, e.g., IRAP v. Trump, No. 171351, 2017 WL 2273306 (4th Cir. May 25, 2017); Hawaii v. Trump, No. 17-cv0050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017); Aziz v. Trump, No. 17-cv-116,
2017 WL 580855 (E.D. Va. Feb. 13, 2017).
The Government misleadingly characterizes “the discovery being sought
[here as] similarly broad in scope to that sought in Cheney.” Ex. B at 21 n.7. But in
Cheney, the Court was concerned about “overly broad discovery requests” that
“ask[ed] for everything under the sky,” and suggested that the District Court should
have “narrow[ed] . . . the subpoenas” to allow the Government to “invoke executive
privilege with respect to a possibly smaller number of documents.” 542 U.S. at 38687, 390 (citation and alteration omitted). Here, the Court has permitted Plaintiffs to
proceed with only “limited discovery,” ECF #89 at Pg. ID 1224, after previously
requiring Plaintiffs to narrow their requests, ECF #69 at Pg. ID 977. And Defendants
are refusing to decide whether to assert executive privilege over a single document
–– a document that was created months before the election and has been discussed
publicly on numerous occasions.8 As other courts have held, the showing required

8

Defendants also suggest that the document request is vague because they might
find it too difficult to identify the “final” version of the Memo in the files of possible
recipients of the document. Ex. B, at 31-32. Given their refusal to even search for
the document, this complaint is entirely speculative and should not be credited.
20

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in Cheney is not needed in cases involving a “very narrow and specific document
production.” Dairyland Power Co-op v. United States, 79 Fed. Cl. 659, 667 (2007).9
For these reasons, Cheney does not apply here. But even in circumstances
where the principles of Cheney do apply, a plaintiff need only show that the
documents sought “contain important evidence and that this evidence is not available
with due diligence” using other documents “in the public domain.” Id. at 668. As
discussed above, it is beyond question that the Giuliani Memo “contain[s] important
evidence” regarding the link between Candidate Trump’s proposed Muslim Ban and
the Executive Orders that followed, and there is no basis for believing that the
document is available in the public domain or that it could be readily obtained from
some other source.10

However, Defendants are of course free to produce all copies of the document that
they are able to locate after a reasonable search.
9

Defendants misleadingly cite the recent order in Washington v. Trump where the
court stayed discovery based, in part, on concerns about “potentially complex
privilege” issues and the need to protect the President from “the burden of
discovery.” Ex. B at 3. There, unlike here, the requested discovery was not limited
to the period prior to the inauguration, and was expansive in scope; the plaintiffs had
sought “up to 30 depositions of government officials, including White House staff
and Cabinet-level officers.” Ex. B at Ex. 1, pg. 10.
10

Moreover, the fact that other courts have issued injunctions of the Executive Order
does not lessen Plaintiffs’ need for the evidence here. Those injunctions are under
appeal and may be lifted at any time. See Raofield Decl. Ex. S (Justice Department
statement announcing intent to appeal Fourth Circuit decision affirming IRAP
injunction). And as this Court has pointed out, “Plaintiffs are entitled to litigate their
own case.” ECF #89, at 6.
21

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B.

Pg ID 1666

Defendants Must Conduct a Reasonable Search for the Giuliani Memo.

The Justice Department has not bothered to fulfill its most basic obligation in
discovery to conduct a reasonable search for the Giuliani Memo. Defendants in this
case, like every other litigant, have the obligation to “make reasonable efforts” to
locate and “produce those documents that are within Defendants’ possession,
custody, or control.” Khami v. Ortho-McNeil-Janssen Pharm., Inc., No. 09-cv11464, 2011 WL 1045545, at *2 (E.D. Mich. Mar. 17, 2011).
Defendants must produce documents if they have “actual possession, custody
or control, or ha[ve] the legal right to obtain the documents on demand.” In re
Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995). “[L]egal ownership of the
document is not determinative,” id., and “‘control’ is to be broadly construed.”
Khami, 2011 WL 1045545, at *2 (citation omitted). Thus, a “party responding to a
Rule 34 production request cannot furnish only that information within his
immediate knowledge or possession; he is under an affirmative duty to seek that
information reasonably available to him from his employees, agents, or others
subject to his control.” Flagg v. City of Detroit, 252 F.R.D. 346, 353 (E.D. Mich.
2008). Control exists in a “variety of circumstances,” including when a document is
in the possession of an officer, employee, or agent of a party. Id.
It defies reason to believe that not a single employee or agency of the United
States Government has a copy of the Giuliani Memo. In an attempt to cover for its
22

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Pg ID 1667

willful refusal to make any effort to search for the document, the Government argues
that “if the memo even exists,” the “Plaintiffs have not provided any reason to think
that a document that is allegedly a campaign document would be located in the
official government files.” Ex. B at 20 (emphasis added). The law does not permit a
party to refuse to search for a document based on a speculative objection that it might
not have the document.
In any event, Plaintiffs have shown that Defendants likely possess the
document. For example, the United States is a Defendant in this case, and Document
Request No. 1 identified published articles in which two federal employees discussed
the Memo’s contents publicly after the first Executive Order was signed. In addition,
Defendant Kelly and others have stated that the first Executive Order was based in
part on the Giuliani Memo. 11 And when asked whether “Trump had received his
memorandum,” Mr. Giuliani said not only that Trump had received the Memo, but
that “I know he absorbed the memo.” Raofield Decl., ¶ 11, Ex. I (cited in Document
Request No. 1). There is little doubt that the Memo is available to Defendants.

11

Raofield Decl., ¶ 19, Ex. Q (reporting that John Kelly informed Rep. McCaul that
the Original Executive Order was based on the “memo [McCaul] helped prepare for
then-candidate Trump on extreme vetting”); id., ¶ 16, Ex. N (citing comments from
Susan Phalen—spokeswoman for the House Committee on Homeland Security—
that “the order was based in part on a memo McCaul and former New York mayor
Rudolph Giuliani submitted to the Trump campaign last fall”).
23

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Although Defendants try to create an artificial distinction between the files a
government official obtained while in office and those he obtained before taking
office, they cite no case for that proposition, and such a distinction makes little sense.
If a Defendant has possession, custody, or control of a responsive document, he must
produce it, regardless of how he happened to obtain it. This is Discovery 101, and
was precisely the point of Bankers Trust, the case that Defendants identify as
providing “the Sixth Circuit standard.” Ex. B at 6. There, the court found that
“parties in possession of documents forwarded to them by a federal agency have
‘possession, custody or control’ within the meaning of Rule 34,” even if “the agency
by regulation retains ownership and restricts disclosure.” 61 F.3d at 469. Similarly
here, if a Defendant has a copy of the Giuliani Memo provided by Giuliani or the
Trump Campaign, that Defendant is obligated to produce the document. As the Sixth
Circuit noted, “federal agencies are bound by discovery rules in the same manner as
any other litigant,” and “judicial control over the evidence in a case cannot be
abdicated to the caprice of executive officers.” Id. at 470 (citations omitted).
The Government’s shell game of directing Plaintiffs and the Court to get
discovery from third parties flips normal discovery practice on its head. It is well
understood that a party should obtain “discovery from its party opponent before
burdening [a] nonparty.” Haworth, Inc. v. Herman Miller, Inc., 998 F.2d 975, 978
(Fed. Cir. 1993); see also United States v. Blue Cross Blue Shield of Mich., No. 1024

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Pg ID 1669

cv-14155, 2012 WL 4513600, at *6 (E.D. Mich. Oct. 1, 2012) (declining to compel
discovery because of the “nonparty status” of the subpoenaed entities, even though
the Court would have ordered production if they “were parties to the action”);
Hansen Beverage Co. v. Innovation Ventures, LLC, No. 09-cv-50630, 2009 WL
2351769, at *2 (E.D. Mich. July 29, 2009) (discovery would be “more appropriately
pursued through Plaintiff” than a third party); In re CareSource Mgmt. Grp., 289
F.R.D. 251, 253-54 (S.D. Ohio 2013) (A party “must first establish that it cannot
obtain the discoverable information from its party-opponent before subpoenaing
those documents from a non-party.”).
Contrary to Defendants’ suggestion, Cheney does not alter this system.
Defendants have not even attempted to explain why it would be “more convenient,
less burdensome, or less expensive,” see Fed. R. Civ. P. 26(b)(2)(C)(i), to obtain the
Giuliani Memo from a non-party than from one of the many Defendants in this
action. In the only case Defendants found to cite for their argument, the court found
that “the issue is now moot” because the documents being sought were either already
produced by the non-party or no longer existed. Metavante Corp. v. Emigrant Sav.
Bank, No. 05-cv-1221, 2008 WL 4722336, at *7 (E.D. Wis. Oct. 24, 2008). Here, of
course, the Giuliani Memo has never been produced.
Moreover, Defendants reveal that they are not sincere about third-party
discovery, all but confessing that they would “assert any applicable privileges” if
25

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Pg ID 1670

Plaintiffs sought to obtain the Giuliani memo from the Trump Campaign. Ex. B at
17 n.5. Litigation to enforce a nonparty subpoena, in another district, over the
Government’s inevitable intervention and dilatory objections, would surely not be
“more convenient, less burdensome, or less expensive” than simply requiring
Defendants to comply with their discovery obligations in this case.
This is particularly so because Defendants expect the “third party” (i.e., the
Trump Campaign) to assert its own (baseless) “potential privileges.” Id. at 30.
Defendants point in their brief to one privilege, which they characterize as an
unlimited protection for “the internal deliberative materials of a political campaign.”
Id. at 17 (citing Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010)).
Defendants again overstate matters. Perry merely rejected a broad document request
for “any . . . communications . . . [with] any third party,” while recognizing that
“internal campaign communications may be discoverable” in response to a
“carefully tailored request for the production of highly relevant information that is
unavailable from other sources.” 591 F.3d at 1153, 1165 n.13.
C.

The Court Has Already Considered and Rejected Defendants’
Arguments for Perpetual Delay.

Defendants are improperly seeking reconsideration of the Court’s May 11
Order under the guise of discovery objections. The Court has already considered and
rejected the litany of reasons offered by Defendants to delay discovery further. As
the Court properly ruled, discovery can proceed while the Court addresses
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Pg ID 1671

Defendants’ motion to dismiss (which is now fully briefed), particularly given that
the same arguments raised by Defendants have been rejected in other cases. ECF
#89, at Pg. ID 1222. As the Court has already determined, neither logic nor law
warrants holding another Rule 26(f) or Rule 16 conference when Defendants’
position is there should be no discovery. See ECF #78, at 9-10; see also, e.g., Marie
v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014) (“District courts have broad
discretion under the rules of civil procedure to manage the discovery process and
control their dockets.”). The Court is not required to countenance Defendants’ delay
tactics, particularly when it has appropriately concluded that Plaintiffs are likely to
have standing and meritorious claims. As long as the Court believes that at least one
plaintiff has standing and at least one claim will survive, it is absurd for Defendants
to insist discovery must be delayed until the Court has issued a reasoned opinion.
CONCLUSION
The Giuliani Memo is responsive to Document Request 1, and it is directly
relevant to Plaintiffs’ claims. It is also clear that Defendants have no good faith basis
for any potential future assertion of executive privilege. The Court should deny
Defendants the endless delay they seek.
Instead, Plaintiffs respectfully propose the following steps to advance this
litigation while still protecting any potential executive privilege claim by Defendant
Trump or any other theoretical privileges held by third parties.
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First, the Court should find that the Giuliani Memo is responsive, relevant,
and likely to contain important information needed by the Plaintiffs.
Second, the Court should order Defendants to search for the Giuliani Memo
and, within five days of the Court’s order, submit a copy of the document to the
Court for in camera review. To the extent Defendants claim that they have not
located a copy of the document, counsel should be required to file an affidavit
detailing the specific steps taken to fully comply with their legal obligations to
search for the document, and representing to the Court that no Defendant has
possession, custody, or control of the document, or the legal right to obtain the
document on demand.
Third, if Defendants wish to assert that the document is covered by executive
privilege, that assertion of privilege should be made and supported in a legal brief
submitted to the Court within ten days of the Court’s order (i.e., five days after the
deadline for Defendants to submit the document to the Court).
Fourth, Defendants should be required to immediately provide a copy of the
Court’s order to the Trump Campaign (and any other third party the Defendants
believe may have a right to assert privilege over the document) and notify them that
any third-party assertion of privilege must be made and supported in a legal brief

28

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submitted to the Court within ten days of the Court’s order (i.e., five days after the
deadline for Defendants to submit the document to the Court).12
Finally, within fifteen days of the Court’s order (i.e., five days after the
deadline for any claims of privilege to be asserted), Plaintiffs should be required to
file a brief responding to any assertions of privilege that have been made. No further
briefing should be permitted absent a request from the Court.

Dated: May 26, 2017

Respectfully submitted,

12

If neither the Defendants nor a third party assert privilege, the Defendants should
be required to produce the Giuliani Memo to the Plaintiffs on the day that the
privilege assertions would have been due (i.e. ten days after the Court’s order).
29

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Pg ID 1674

Counsel for Arab American Civil Rights League
AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad
Nabih H. Ayad (P59518)
645 Griswold St., Ste. 2202
Detroit, MI 48226
(313) 983-4600
nayad@ayadlaw.com

/s/ Rula Aoun
Rula Aoun (P79119)
4917 Schaefer Rd.
Dearborn, MI 48126
(313) 633-0231
rula@acrlmich.org

HAMMOUD, DAKHLALLAH &
ASSOCIATES, PLLC
/s/ Kassem M. Dakhlallah
Kassem Dakhlallah (P70842)
6050 Greenfield Rd., Suite 201
Dearborn, MI 48126
(313) 551-3038
kd@hdalawgroup.com

VIDA LAW GROUP, PLLC
/s/ Mona Fadlallah
/s/ Natalie C. Qandah
Mona Fadlallah (P64197)
Natalie C. Qandah (P58434)
43050 Ford Road, Suite 160
Canton, MI 48187
Phone: (734) 456-9004
Facsimile: (734) 456-9003
Mona@vidalawpllc.com
Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce
FARHAT & ASSOCIATES, PLLC
/s/ Helal Farhat
Helal Farhat (P64872)
Counsel for the American Arab
Chamber of Commerce
6053 Chase Rd.
Dearborn, MI 48126
(313) 945-5100
hfarhat@saflegal.com

AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad
Nabih H. Ayad (P59518)
Attorney for Plaintiffs
645 Griswold St., Ste. 2202
Detroit, MI 48226
(313) 983-4600
nayad@ayadlaw.com

30

 2:17-cv-10310-VAR-SDD Doc # 104 Filed 05/26/17 Pg 40 of 42

Pg ID 1675

Counsel for Hend Alshawish, Salim Alshawish, Yousef Abdullah, Fahmi
Jahaf, and Mohamed Alshega
AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad
Nabih H. Ayad (P59518)
Attorney for Plaintiffs
645 Griswold St., Ste. 2202
Detroit, MI 48226
(313) 983-4600
nayad@ayadlaw.com

/s/ Rula Aoun
Rula Aoun (P79119)
4917 Schaefer Rd.
Dearborn, MI 48126
(313) 633-0231
rula@acrlmich.org

HAMMOUD, DAKHLALLAH &
ASSOCIATES, PLLC
/s/ Kassem M. Dakhlallah
Kassem Dakhlallah (P70842)
6050 Greenfield Rd., Suite 201
Dearborn, MI 48126
(313) 551-3038
kd@hdalawgroup.com

VIDA LAW GROUP, PLLC
/s/ Mona Fadlallah
/s/ Natalie C. Qandah
Mona Fadlallah (P64197)
Natalie C. Qandah (P58434)
43050 Ford Road, Suite 160
Canton, MI 48187
Phone: (734) 456-9004
Facsimile: (734) 456-9003
Mona@vidalawpllc.com
Natalie@vidalawpllc.com

/s/ Ali K. Hammoud
Ali K. Hammoud (P73076)
6050 Greenfield Rd., Suite 201
Dearborn, MI 48126
(313) 551-3038
ah@hdalawgroup.com

31

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Pg ID 1676

Counsel for American Civil Liberties Union of Michigan, Arab American and
Chaldean Council, Arab American Studies Association, Adeeb Saleh,
Sofana Bella, Hilal Alkatteeb and S.A., a minor through her
Parent and Next Friend, Hilal Alkatteeb
/s/ Miriam Aukerman
Miriam Aukerman (P63165)
American Civil Liberties Union Fund
of Michigan
1514 Wealthy SE, Suite 242
Grand Rapids, MI 49506
(616) 301-0930
maukerman@aclumich.org

/s/ Samuel R. Bagenstos
Samuel R. Bagenstos (P73971)
Cooperating Attorney,
American Civil Liberties Union
Fund of Michigan
625 South State Street
Ann Arbor, Michigan 48109
(734) 647-7584
sbagen@gmail.com

/s/ Michael J. Steinberg
Michael J. Steinberg (P43085)
Daniel S. Korobkin (P72842)
Kary L. Moss (P49759)
American Civil Liberties Union Fund
of Michigan
2966 Woodward Avenue
Detroit, MI 48201
(313) 578-6814
msteinberg@aclumich.org

/s/ Margo Schlanger
Margo Schlanger (N.Y. Bar
#2704443 (3d Dept))
Cooperating Attorney,
American Civil Liberties Union
Fund of Michigan
625 South State Street
Ann Arbor, Michigan 48109
(734) 615-2618
margo.schlanger@gmail.com

/s/ Jason C. Raofield
Jason C. Raofield (D.C. Bar #463877)
Nishchay H. Maskay (D.C. Bar
#998983)
Covington & Burling LLP
One City Center
850 10th Street, NW
Washington, D.C. 20001
(202) 662-5072
jraofield@cov.com

32

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Pg ID 1677

CERTIFICATE OF SERVICE
This Motion, Memorandum, and the Declaration of Jason Raofield in
Support of this Motion, were filed on May 26, 2017, via the Court’s ECF system,
which provides notice to all counsel of record.

/s/ Jason C. Raofield
Jason C. Raofield
(D.C. Bar #463877)