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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARAB AMERICAN CIVIL RIGHTS
LEAGUE, et al.,
Plaintiffs,

Case No. 17-10310

v.

Hon. Victoria A. Roberts

DONALD TRUMP, President of the United
States, et al.,
Defendants.
_____________________________________/
DEFENDANTS’ RESPONSE AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF DOCUMENT REQUESTS, REQUEST NO. 1
Pursuant to Federal Rule of Civil Procedure 34 and this Court’s Order dated
May 11, 2017 (ECF No. 89) (“May 11 Order”), Defendants hereby submit their
objections and response to Document Request No. 1 (“Request No. 1” or
“Request”) of Plaintiffs’ First Set of Document Requests (the “Requests”).
Defendants’ Objections are based on the information known to Defendants at this
time, and are made without prejudice to assertion of additional objections should
Defendants identify additional grounds for objection. Defendants reserve the right
to assert additional objections with respect to Plaintiffs’ remaining document
requests and interrogatories. Defendants intend to move the court for a protective
order relating to this Request and additional discovery requests.
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Document Request No. 1 seeks discovery of a document allegedly created
during the presidential campaign by a private individual to provide advice to
candidate Donald J. Trump in his personal capacity, some five months before he
was elected President. Plaintiffs seek that document on the theory that it is
relevant to the underlying motive behind an official government policy (Executive
Order 13,780, the “Executive Order”) signed by the President many months later in
his official capacity, after he took the oath of office and formed his Administration,
and that such motive is relevant to the Executive Order’s legality. That theory
cannot support a finding even of relevance, much less one of proportionality to the
needs of the case, as required by Federal Rule of Civil Procedure 26.
Importantly, Defendants reiterate that the discovery requests in this case, if
found to be relevant, could raise substantial and complex issues relating to
privilege, legal authority over campaign materials, and third-party interests related
to those materials, that call for careful consideration. Requiring a response
addressing those interests in one week is not reasonable, particularly in light of the
fact that two nationwide injunctions remain in effect, and appellate courts are
currently considering the overarching legal issues that apply here and that are
inextricably intertwined with the scope of permissible discovery in this matter. 1

1

Both the Fourth and the Ninth Circuits have heard oral arguments on those
matters and are likely to issue legal opinions bearing directly on these issues. See
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Indeed, in one of the other cases challenging the same Executive Order, the district
court concluded that a stay of all district court proceedings (including discovery)
was warranted, pending resolution of the Ninth Circuit appeal, in part because the
Ninth Circuit’s decision is likely to resolve legal issues that bear on the appropriate
scope of discovery and “potentially complex privilege” issues, and because of the
“‘high respect’ owed to the Executive” in protecting him against the burden of
discovery. See Washington v. Trump, No. 2:17-cv-00141, ECF No. 189 at pp. 9,
11, 2017 WL 2172020 (W.D. Wash., May 17, 2017) (attached hereto as Exhibit 1).
Accordingly, in addition to the specific objections set forth below, Defendants
object to the truncated process ordered here that is inconsistent with the federal
rules governing discovery, with the practical needs presented in this case, and with
the significant issues presented.

generally Int’l Refugee Assistance Proj. v. Trump, No. 17-1351 (4th Cir.); Hawai’i
v. Trump, No. 17-15589 (9th Cir.).
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OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS:
1.

Defendants object to the definition of “Proposed Muslim Ban /

Extreme Vetting / Travel Ban” because it purports to encompass any and all
proposals by or on behalf of Donald Trump, regardless of whether these proposals
were advanced during his candidacy, while he was a private citizen, or during his
presidency; Defendants further object to this definition as vague and overbroad in
that it does not define what is meant by “countries to be identified.” Defendants
also object to the definition to the extent it improperly characterizes the policy or
policies reflected in Executive Order 13769 or Executive Order 13780 and to the
extent it suggests that Executive Order 13769 is relevant to the Court’s evaluation
of Executive Order 13780.
2.

Defendants object to the definition of “Communication” on the

grounds that it is overly broad and unduly burdensome, because it is defined so
broadly as to include verbal or non-written communications, which is beyond the
scope of Rule 34. See Fed. R. Civ. P. 34 (allowing requests to inspect or produce
documents, electronically stored information, or tangible items).
3.

Defendants object to the definition of “Meeting” on the grounds that it

overlaps with the definition of “Communication” and is therefore vague and
confusing. Defendants further object to the definition of “Meeting” on the grounds
that it is overly broad and unduly burdensome because it is defined so broadly as to

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include verbal or non-written communications, which is beyond the scope of Rule
34. See Fed. R. Civ. P. 34 (allowing requests to inspect or produce documents,
electronically stored information, or tangible items).
4.

Defendants object to the definition of “Document” on the grounds that

it is overly broad and unduly burdensome. Furthermore, Defendants are not
required to produce publicly available materials as there is a less burdensome
manner for Plaintiffs to obtain these materials. Fed. R. Civ. P. 26(b)(2)(C)(i).
5.

Defendants object to the definition of the terms “you” and “your” on

the grounds that they are overly broad and unduly burdensome. Subject to specific
objections enumerated below and in subsequent objections, Defendants will
construe “you” and “your” to refer to the departments and agencies that are named
Defendants in this case.
6.

Defendants object to the definition of “Trump Campaign” as

overbroad and unduly burdensome because it includes not only the official
campaign entity, but unofficial entities and all affiliates, “related entities,” and
“any other person(s) acting under their control or on their behalf.” Defendants will
construe the “Trump Campaign” to mean the official campaign entity “Donald J.
Trump for President, Inc.”
7.

Defendants object to Plaintiff’s Instruction No. 1, in that it includes in

the definition a statement, “or otherwise available to your employees, agents,
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consultants, attorneys, and accountants, whether past or present,” which is contrary
to the Sixth Circuit standard for possession, custody, or control. Under that
standard, parties are obligated to produce only those documents within their actual
possession or those documents for which the party has a “the legal right to obtain []
on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); see also
Frye v. CSX Transp., Inc., 2016 WL 2758268, at * 4 (E.D. Mich. May 12, 2016)
(“The Sixth Circuit and other courts have consistently held that ‘documents are
deemed to be within the ‘possession, custody or control’ for purposes of Rule 34 if
the party has actual possession, custody or control, or has the legal right to obtain
the documents on demand.”) (emphasis in original). Defendants are only under the
obligation to produce relevant, non-privileged information, to the extent that it
exists, if individuals, operating in their official governmental capacity, have
responsive, non-privileged information that is under the possession, custody or
control of the named Defendants or that they have the legal right to obtain on
demand.
8.

Defendants object to the format of production proposed in Instruction

No. 2. To the extent that responsive, non-privileged materials exist, Defendants
will produce them in PDF format. Fed. R. Civ. P. 34 (b)(2)(D) (“The response
may state an objection to a requested form for producing electronically stored
information. If the responding party objects to a requested form—or if no form
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was specified in the request—the party must state the form or forms it intends to
use.”).
9.

Defendants object to Instruction No. 3 of Plaintiffs’ Requests, in that

it calls for material that may be privileged as detailed further below.
10.

Defendants object to Instruction No. 4(c) of Plaintiffs’ Requests as an

unduly burdensome requirement and outside of the scope of the obligations for
privilege logs as required under Federal Rule of Civil Procedure 26(b)(5).
Defendants reserve the right to create a categorical privilege log.

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DOCUMENT REQUEST NO. 1
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, 2017.2
Objections to Document Request No. 1:
Discovery is Premature.
1. Given that the Court has not yet determined whether it has Article III
jurisdiction over Plaintiffs’ complaint, or any or all of the claims asserted therein, it
is inappropriate to proceed with discovery as to the merits. Defendants have
moved to dismiss in part for lack of subject-matter jurisdiction because Plaintiffs
have failed to meet their burden to establish standing. See Defendants’ Motion to
Dismiss (ECF No. 76), at pp. 9-14. As the Court recognized, it has not yet decided
that issue. May 11 Order (ECF No. 89), at p. 4 (Court is “not one-hundred percent
certain” that plaintiffs have standing). The Court, therefore, has no jurisdiction to

2

http://www.nj.com/politics/index.ssf/2016/07/exclusive_giuliani_source_of_trum
p_shift_on_muslim.html; www.cnn.com/TRANSCRIPTS/1611/13/sotu.01.html);
https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-amuslim-bangiuliani-says-and-ordered-a-commission-to-do-itlegally/?utm_term=.75466c390ef0; http://www.mcclatchydc.com/news/politicsgovernment/white-house/article129703344.html;
https://www.texastribune.org/2017/02/07/michael-mccaul-calls-trumps-travel-banrolloutproblematic/.
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proceed to the merits of the case, which includes discovery on the merits. See Steel
Co v. Citizens for a Better Environment, 523 U.S. 83, 94 (1988) (“Without
jurisdiction the court cannot proceed at all in any cause.”); cf. Dynamic Image
Techs., Inc. v. United States, 221 F.3d 34, 38 (1st Cir. 2000) (“[C]ompelling public
policy reasons support stringent limitations on discovery [in cases against the
federal government] pending the resolution of threshold jurisdictional questions.”);
Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988)
(“Federal Rule of Civil Procedure 45 grants a district court power to issue
subpoenas as to witnesses and documents, but the subpoena power of a court
cannot be more extensive than its jurisdiction. It follows that if a district court
does not have subject-matter jurisdiction over the underlying action, and the
process was not issued in aid of determining that jurisdiction, then the process is
void[.]”); U.S. v. Morton Salt Co., 338 U.S. 632, 641-42 (1950) (“Federal judicial
power itself extends only to adjudication of cases and controversies and it is
natural that its investigative powers should be jealously confined to these ends.”).
Although the Court suggested (May 11 Order, at p. 4) that Steel Co. does not
preclude discovery as to “standing and/or ripeness,” those are jurisdictional
matters, and discovery as to those issues, to allow a court to make a determination
as to jurisdiction provides no support for the Court’s conclusion that it can order
discovery on the merits when it has not yet determined its own jurisdiction. And
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Plaintiffs have not asserted that discovery is necessary to support their arguments
as to standing. Accordingly, it is improper for the Court to proceed with discovery
before it resolves whether it has Article III jurisdiction, particularly where that
discovery is directed at the President.
2. Request No. 1 is likewise premature because the Court has not yet ruled
on Defendants’ Motion to Dismiss the Second Amended Complaint (ECF No. 76).
As Defendants have explained, Defendants believe that their Motion to Dismiss
will likely dispose of all or some of the claims in this action, rendering discovery
ultimately unnecessary or, at the very least, narrowing the scope of the Complaint
and thus the scope of relevant discovery. Although Defendants acknowledge that
the Court “is not convinced that [Defendants’ Motion to Dismiss] will be fully
dispositive,” May 11 Order at p. 4, the Court unduly discounted Defendants’
argument that resolving the Motion to Dismiss would, at a minimum, dispose of or
narrow some claims, and would likely resolve some of the substantive legal
disputes which will, in turn, shape the appropriate discovery inquiry. Moreover,
two nationwide injunctions of the Executive Order remain in effect, and appellate
courts are currently considering the overarching legal issues that apply here and
that are inextricably intertwined with the scope of permissible discovery in this
matter.

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In light of that, proceeding with discovery before the Court has resolved the
necessary legal standards and issues that will bear upon the appropriate scope of
discovery is inappropriate. See Ex. 1, Washington v. Trump, No. 2:17-cv-00141,
ECF No. 189, at pp. 5-6 (explaining that a stay pending the Ninth Circuit appeal is
warranted because the appeal “is likely to decide legal issues that will impact the
court’s resolution of the parties’ discovery disputes [] by clarifying ‘the applicable
law or relevant landscape of facts that need to be developed.’”); Chudasama v.
Mazda Motor Corp., 123 F.3d 1353, 1368 (11th Cir. 1997) (“If the district court
dismisses a nonmeritorious claim before discovery has begun, unnecessary costs to
the litigants and to the court system can be avoided. Conversely, delaying ruling on
a motion to dismiss such a claim until after the parties complete discovery
encourages abusive discovery and, if the court ultimately dismisses the claim,
imposes unnecessary costs.”). Until the Court resolves those issues and the other
legal arguments in favor of dismissal, the materials sought by Plaintiffs “are not
useable for any substantive purpose,” and the requested discovery thus should be
denied. See Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d
976, 982 (6th Cir. 2003).
Moreover, the Court’s conclusion (May 11 Order, at p. 6) that, because
discovery here will implicate complex privilege issues, “there is no point in
delaying discovery,” is backwards. If there is a possibility that the legal issues
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could be resolved such that Plaintiffs’ proposed discovery exceeds the bounds of
permissible discovery, then this Court could avoid altogether the potentially thorny
privilege issues that might otherwise arise as well as avoid the potential intrusion
on the Executive by permitting discovery directed at the President. See Ex. 1,
Washington v. Trump, ECF No. 189, at pp. 5-6, 9, 11.
3. Request No. 1 is premature under Federal Rule of Civil Procedure 26(d)
because the parties have not conferred under Federal Rule of Civil Procedure 26(f).
Fed. R. Civ. P. 26(d)(1), (d)(2)(B); Rumburg v. McHugh, No. 10-CV-11670-DT,
2010 U.S. Dist. LEXIS 76840, at *2 (E.D. Mich. July 29, 2010) (“The federal rules
provide that discovery may not be sought from any source before the parties have
conferred under Federal Rule of Civil Procedure 26(f).”). Plaintiffs served the
instant Requests on Defendants on April 6, 2017. These discovery requests are
considered “early Rule 34 requests” under Federal Rule of Civil Procedure
26(d)(2) because they were served prior to a Rule 26(f) conference; early Rule 34
requests are not considered served until the first Rule 26(f) conference, with
responses due 30 days thereafter. Fed. R. Civ. P. 34(b)(2)(A). Although the
parties have disputed whether a Rule 26(f) Conference did in fact occur on April 6,
2017, (see Tr., Apr. 13, 2017, Status Conference, at pp. 7-9 (attached hereto as
Exhibit 2)), the Court has made no determination that a 26(f) Conference occurred.
In fact, at an April 13, 2017, Status Conference, the Court indicated that a proper
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Rule 26(f) Conference had not occurred. Ex. 2, at p. 16 (stating that the Court may
later order the parties to conduct a Rule 26(f) Conference that “comports with the
court rules”). The May 11 Order (ECF No. 89) also does not address whether a
Rule 26(f) Conference occurred. Defendants continue to maintain that such a
conference has not occurred as there are a variety of Rule 26(f) conference topics,
such as production format, that have not been addressed by the parties and must be
discussed pursuant to Rule 26(f).
A Rule 26(f) conference must occur, pursuant to Rule 26(d)(2), before early
discovery requests are considered served. The 30 days to respond to early
discovery requests only begins to run once the Rule 26(f) conference occurs. A
Rule 26(f) Conference has not occurred in this case and thus Request No. 1 has not
yet been served on Defendants. Although Fed. R. Civ. P. 26(d)(1) allows a court
to permit discovery prior to a Rule 26(f) conference, Rule 26(d)(2), which applies
to early discovery requests, does not contain this clause. The Court should not
modify the period to respond to early discovery requests served under Rule
26(d)(2) as it runs contrary to the language of the rule and the purpose of early
discovery requests. 3 Therefore, Defendants should have thirty days to respond

3

“Rule 26(d)(2) is added to allow a party to deliver Rule 34 requests to another
party more than 21 days after that party has been served even though the parties
have not yet had a required Rule 26(f) conference. Delivery may be made by any
party to the party that has been served, and by that party to any plaintiff and any
other party that has been served. Delivery does not count as service; the requests
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from the first Rule 26(f) conference. It is prejudicial to require Defendants to
respond in one-quarter of the time normally allotted by Fed. R. Civ. P. 34(b)(2)
and Rule 26(d)(2).
Moreover, the Request is premature because the Court’s May 11 Order
regarding discovery was purportedly issued under Federal Rule of Civil Procedure
16(b) (see May 11 Order, at p. 7), yet the Order was issued before a Court
conference with the parties and without the benefit of a Rule 26(f) Report from the
parties, either of which is a prerequisite to an order under Rule 16(b). See Fed. R.
Civ. P. 16(b)(1). The Court did not hold a Rule 16 Scheduling conference, but
instead re-characterized an April 13, 2017, Status Conference as a Rule
16(b)(1)(B) Scheduling Conference, after that status conference had already
occurred. See May 11 Order (ECF No. 89), at p. 2 (determining, after the fact, that
a previous status conference constituted a conference of the parties sufficient to
satisfy Rule 16(b)(1)(B)). The April 13, 2017, Status Conference was not
described by the Court as a “Scheduling Conference” before, during, or directly
after that conference; rather, it was repeatedly styled by the Court as a “Telephonic
are considered to be served at the first Rule 26(f) conference. Under Rule
34(b)(2)(A) the time to respond runs from service. This relaxation of the discovery
moratorium is designed to facilitate focused discussion during the Rule 26(f)
conference. Discussion at the conference may produce changes in the requests. The
opportunity for advance scrutiny of requests delivered before the Rule 26(f)
conference should not affect a decision whether to allow additional time to
respond.” 2015 Advisory Committee Note to Fed. R. Civ. P. 26 (emphasis added).
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Status Conference.”4 Indeed, the Court noted at the Status Conference that it
would later hold a “[scheduling] conference with the parties.” Ex. 2, at p. 16. The
Advisory Committee Notes recognize the importance of advance notice of the Rule
16(b)(1)(B) conference so that the parties have notice in advance that a
“Scheduling Conference” is upcoming and can conduct their Joint 26(f)
conference. See, e.g., Fed. R. Civ. P. 16(b) Advisory Committee Note to 1993
amendment (“[W]hen setting a scheduling conference, the court should take into
account the effect this setting will have in establishing deadlines for the party to
meet under revised Rule 26(f)”). That notice requirement was not satisfied here.
The Request is Beyond the Scope of Proper Discovery Under Rule 26(b)(1)
Because it Seeks an Alleged Campaign Document from the Government
Entities.
Request No. 1 seeks a memorandum, if it exists, that Plaintiffs allege
“Rudolph Giuliani . . . provided to Donald J. Trump or others working for or on
behalf of the Trump Campaign in approximately May to July 2016.” See Requests
at p. 8. Defendants object to Request No. 1 as overbroad and outside the scope of
discovery, unduly burdensome, and harassing because, “considering . . . the
parties’ relative access to relevant information,” Plaintiffs have supplied no reason
4

Docket Entry of April 5, 2017 (“Set Deadlines/Hearings: TELEPHONIC Status
Conference set for 4/13/2017 at 2:30 PM before District Judge Victoria A.
Roberts.”; Minute Entry of April 13, 2017 (“Minute Entry for proceedings before
District Judge Victoria A. Roberts: Telephonic Status Conference held on
4/13/2017 (Court Reporter: Janice Coleman) (CPin) (Entered: 04/13/2017).”).
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to believe that campaign materials would be contained in official files of any of the
government defendants. Fed. R. Civ. P. 26(b)(1). Plaintiffs’ request for a
campaign document is more properly directed at the Trump campaign or Mr.
Giuliani—or Rep. McCaul, or Ms. Phelan (the two other individuals Plaintiffs
allege to have publicly discussed the purported document). This is so for several
reasons.
First, because the request seeks what they allege to be a campaign document,
Plaintiffs are seeking discovery from the wrong entity. Plaintiffs have not brought
suit against Donald J. Trump for President, Inc., the official Presidential campaign
committee. See Requests at p. 1 (defining “Trump Campaign”). Rather, they have
sued Defendants, in their official government capacities, who do not in that
capacity have authority over Donald J. Trump for President, Inc. or its files. The
official Trump campaign committee is an incorporated entity that exists wholly
apart from the Trump Administration. That private entity continues to exist, and
Plaintiffs could seek campaign materials from it, but they apparently have not done
so. Plaintiffs appear to believe that because some of the Defendants—such as the
President—were involved in the campaign in their personal capacities, the
campaign files are therefore available for discovery in this action. See Requests at
p. 8 (seeking papers that were “provided to Donald J. Trump or others working for
. . . the Trump Campaign”). That is not correct. The files of Donald J. Trump for
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President, Inc. are owned by that legal entity. The campaign files did not become
part of the government’s official files simply because Mr. Trump won the election
and is now the President. Thus, any campaign files should be sought from the
campaign itself.5
Second, Donald J. Trump for President, Inc. and/or Mr. Trump in his
capacity as a former candidate may seek to assert discovery privileges of their
own. Because the campaign is not a party to this proceeding, those discovery
privileges might not be heard or considered without their participation in the
litigation. Cf. United States v. American Tel. & Tel., 642 F.2d 1285, 1292 (D.C.
Cir. 1980) (“Without the right to intervene in discovery proceedings, a third party
with a claim of privilege in otherwise discoverable materials could suffer “the
obvious injustice of having his claim erased or impaired by the court’s adjudication
without ever being heard.”). Importantly, the campaign could seek to assert
interests that protect its internal deliberative materials from disclosure in a law suit
challenging official government action. See, e.g., Perry v. Schwarzenegger, 591
F.3d 1147, 1161-62 (9th Cir. 2010) (recognizing a First Amendment interest in
protecting the internal deliberative materials of a political campaign as against
discovery in civil litigation). In a case like this one, where that discovery is not

5

As discussed below, however, even if responsive documents are properly sought
from a third party, Defendants may nonetheless assert any applicable privileges
protecting against the release or disclosure of such document.
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being sought from the entity most likely to possess it, and the correct entity may
want to assert privilege claims available to it, the proper course is to require
Plaintiffs to seek discovery directly from the third party.
Third, requiring a burdensome search for campaign materials in official
government files, and particularly in the Executive Office of the President, would
be disproportionate to the needs of the case—particularly since the President is not
subject to suit for injunctive relief with respect to performance of his official
duties, see pp. 23-24, infra. The anticipated benefit of such a search is exceedingly
slight as compared to the burden of conducting the search and the intrusion on the
Executive.
Plaintiffs have identified no reason as to why Defendants would possess a
document allegedly created for use by Donald J. Trump for President, Inc. The
government agency Defendants were of course not part of the official Trump
campaign committee and, during the time period relevant to the request, were
under a different Presidential administration. Moreover, the defendant agencies
employ thousands of individuals. Requiring a search for even one document,
particularly where that document is not of the type maintained in the ordinary
course of business, is unreasonable. “Even very slight inconvenience may be
unreasonable if there is no occasion for the inquiry and it cannot benefit the party
making it.” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012). Of
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course, Plaintiffs’ discovery requests go far beyond the single document identified
in Document Request No. 1, and the burden of searching for all the campaign
materials encompassed by Requests Nos. 1-3, when Plaintiffs have not identified
why they are likely to be located in official government files, does not justify the
requested discovery.
And to the extent any of the individual Defendants participated in the Trump
campaign in their personal capacities, the documents generated in connection with
that work would be campaign documents, and Plaintiffs have not explained why
those documents would exist in government files.
The President, of course, who is sued in his official capacity, was not
President until long after these campaign materials were allegedly created. 6
Without a further showing as to why Plaintiffs cannot seek that document directly
from the official Trump campaign entity and why a campaign document belonging
to Donald J. Trump for President, Inc., might be within the President’s official
government files many months later. Plaintiffs have not demonstrated that Request
No. 1 is proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1).

6

Plaintiffs have not alleged that the purported Giuliani memo was received by
Donald Trump, personally, either as a candidate or as President. See Request No.
1 (requesting memo that “Giuliani and others provided to Donald J. Trump or
others working for or on behalf of the Trump Campaign).
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The Request to Search for the Documents At Issue Must Be Rejected Under
Cheney.
Defendants further object because asking the President or his close advisers
and cabinet secretaries to search for the materials sought in Request No. 1, and the
other related Requests, is not proportional to the needs of this case. As we have
explained, 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.
But even if this Court does not accept that flaw in the discovery request, requiring
a search for the document on the theory that it formed the basis for an Executive
Order issued by the President in his official capacity is not permitted under Cheney
without a heightened showing that has not been made here and could not be made
given the ready availability of the document, if it exists, from the campaign.
Under Cheney, Plaintiffs must make a heightened showing of need before
they can require a search for, and force the government to determine whether to
formally assert privileges with respect to, discovery sought from the President or
his close advisers. See Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S.
367 (2004) (reversing Court of Appeals decision that the Vice President and other
executive officials must first formally assert privilege before the Court may
address their separation-of-powers objections to discovery requests). Cheney
acknowledged the special burden presented when “discovery requests are directed
to the Vice President and other senior Government officials who served on the
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NEPDG to give advice and make recommendations to the President.” Id. at 385.
If the Court credits Plaintiffs’ erroneous claim that campaign materials are relevant
to the validity of the Executive Order, the discovery at issue here is nevertheless
improper because of the concerns expressed in Cheney. Indeed, discovery here is
even less proportional to the needs of the case here than in Cheney, because
Plaintiffs’ discovery is directly targeted at the President.
The Supreme Court in Cheney directed that courts must take special care to
ensure that civil discovery requests do not intrude on the “public interest” in (1)
“afford[ing] Presidential confidentiality the greatest protection consistent with the
fair administration of justice”; and (2) “protecting the Executive Branch from
vexatious litigation that might distract it from the energetic performance of its
constitutional duties.” Cheney, 542 U.S. at 382. There must be a heightened
showing of need made before allowing this kind of burdensome discovery. Id. 7
Courts have thus applied Cheney to require a heightened showing of need
before imposing the burden of responding to discovery, as the consideration and
assertion of applicable privileges in these circumstances must be a “last resort.”

7

Although only the production of a single document (or objections thereto) is
initially at issue here, the relevant inquiry is the scope of the discovery sought as a
whole, and in this respect, the discovery being sought is similarly broad in scope to
that sought in Cheney. But whether Plaintiffs seek one document or many, Cheney
requires a heightened showing of need before permitting any discovery against the
President or his close advisers.
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United States v. McGraw-Hill Companies, Inc., 2014 WL 8662657, at *8 (C.D.
Cal. Sept. 25, 2014); see also Dairyland Power Co-op v. U.S., 79 Fed. Cl. 659, 662
(2007) (“The Court agrees with the Government that, in the case of a discovery
request aimed at the President and his close advisors, the White House need not
formally invoke the presidential communications privilege until the party making
the discovery request has shown a heightened need for the information sought.”).
A showing of heightened need is necessary, as the Supreme Court has recognized
that the separation of powers under our Constitution is directly implicated by
subjecting the President to judicial process in matters arising out of the
performance of his official duties. Nixon v. Fitzgerald, 457 U.S. 731, 748-55
(1982); cf. Mississippi v. Johnson, 71 U.S. 475, 501 (1866). This is motivated not
solely by the concern for maintaining Presidential confidentiality and preventing
the need to address difficult separation of powers issues, but also with the
distractions created by the burden of responding to discovery requests, and
evaluating documents for the assertion of privilege, in light of the President’s
weighty official duties. See Cheney, 542 U.S. at 382, 385, 389-90. The Cheney
principle also properly avoids embroiling courts in difficult and potentially
unnecessary privilege issues implicating the separation of powers. Id.
Here, Plaintiffs have not demonstrated the required need for the document at
issue. Most importantly, because Defendants’ Motion to Dismiss remains pending,
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there cannot be a showing at this time of relevance. Further, they have not shown
that the document is not available from other sources—such as from the campaign,
which is the actual identified owner of the document being sought. See Request
No. 1 (seeking document allegedly drafted “on behalf of the Trump Campaign”
before the election); see also Request No. 2 (seeking pre-election documents
relating to an alleged campaign “‘commission’ or ‘group’”); Request No. 3
(seeking documents created by various individuals in connection with the
campaign). They cannot obtain these documents, if they even exist, because
Plaintiffs have failed to show—and could not show given that these are campaign
documents—that they are “not available with due diligence elsewhere.” Dairyland
Power, U.S. Fed. Cl. at 668.
A related principle further precludes discovery from the President in these
circumstances. A federal court cannot “enjoin the President in the performance of
his official duties.” see Mississippi, 71 U.S. at 501; see also County of Santa Clara
v. Trump, 17-cv-00574, --- F. Supp. 3d ---, 2017 WL 1459081, at *29 (N.D. Cal.
April 25, 2017) (“extraordinary remedy of enjoining the President himself is not
appropriate”). A fortiori, a federal court likewise could not compel the President to
comply with a civil discovery request. Cf. Fitzgerald, 457 U.S. at 748-55 (holding
that the President has absolute immunity for civil liability for acts within his
official responsibilities). That conclusion is grounded on the President’s “unique
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constitutional position” and “respect for separation of powers.” See Franklin v.
Massachusetts, 505 U.S. 788, 800 (1992). Although the Supreme Court has
recognized limited exceptions permitting judicial process against the President,
Clinton v. Jones, 520 U.S. 681, 703, 704 n.39 (1997) (civil discovery permitted
where private, rather than official, act was involved); United States v. Nixon, 418
U.S. 683, 710-13 (1974) (permitting subpoena directed at President for use in
criminal prosecution), neither of those exceptions is relevant here. Pursuant to
these principles, because the President is immune from this kind of civil injunctive
action challenging his official conduct, he cannot properly be the subject of
discovery in this civil litigation. The conclusion that civil discovery under Rule 26
is not available against the President here is likewise compelled by the fact that the
President is not a properly named defendant to this civil injunctive action.
The Requested Document, if it Exists, Would Be Irrelevant, and Even If
Relevant, An Opportunity to Consider Privilege Assertions Would Be
Necessary.
Defendants object to Request No. 1 as overbroad and outside the scope of
discovery under Federal Rule of Civil Procedure 26(b)(1) because it seeks a
document that is neither relevant to the claims and defenses in this case nor
“proportional to the needs of the case.” And under Cheney, imposing a discovery
burden on the President and his close advisers is improper, without first making the
heightened showing discussed above, and further having established relevancy by,
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among other things, considering the legal rules that are applicable to this case and
the arguments made in the government’s pending Motion to Dismiss. And even if
this Court determined that the document were relevant and required a search for it,
there would need to be an opportunity for the Defendants to consider and assert
applicable privileges after obtaining and reviewing the document.
1. If the “memorandum” or “white paper” sought in this Request exists, it is
not relevant to the legal issues presented in this case for several reasons.8
Defendants have explained in the pending Motion to Dismiss that, because the
Executive Order involves the ability of the political branches to exclude aliens who
have no constitutional or statutory right to enter the United States, evaluating the
constitutionality of the Executive Order does not require the Court to assess the
subjective intent of the President. Under well-established law, the validity of the
Executive Order turns on whether it is “facially legitimate and bona fide.” See,
e.g., Kleindeinst v. Mandel, 408 U.S. 753, 770 (1972); Fiallo v. Bell, 430 U.S. 787,

8

Other than stating generally that Plaintiffs “seek only limited discovery that will
be relevant to any claim” (May 11 Order, at p. 4 (ECF No. 89), the Court did not
specifically resolve whether this requested document is relevant when it required
Defendants to respond to the Document Requests and denied Defendants’ request
to postpone issuance of a scheduling order. See id. at p. 7. As the Court
acknowledged, Defendants have not yet raised any specific objections to the
discovery requests and the discovery topics, nor has the Court ruled on the
relevance of these topics or the other burdens presented by the Requests. See id. at
8 (“Of course, Defendants may object to requests as allowed by the Federal Rules
of Civil Procedure.”).
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796 (1977); Almario v. Att’y Gen., 872 F.2d 147, 151 (6th Cir. 1989). The Sixth
Circuit has explained that the “facially legitimate and bona fide reason” standard
“may be even lower,” that is, less stringent, “than rational basis review.” Bangura
v. Hansen, 434 F.3d 487, 495 (6th Cir. 2006). Rational basis review requires a
court to uphold government action if there is any rational justification for the
policy, and even rational basis review does not allow an inquiry into the subjective
intent of decisionmakers, which courts are ill-equipped to review. Heller v. Doe,
509 U.S. 312, 319-20 (1993) (classification “must be upheld . . . if there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification”). Moreover, the presumption of regularity here further supports the
actions of the President. See United States v. Chem. Found., Inc., 272 U.S. 1, 14–
15 (1926) (explaining the presumption of regularity that attaches to federal
officials’ actions).
Under the Mandel standard, Plaintiffs’ discovery demand is irrelevant. But
even if some evaluation beyond Mandel were appropriate, any such inquiry should
be limited to official government actions and thus should not include unofficial
statements or events that took place before the President’s inauguration, which
would involve a “judicial psychoanalysis of a drafter’s heart of hearts.” See
McCreary Cnty. v. ACLU of Kentucky, 545 U.S. 844, 862 (2005) (it is only an
“official objective” of favoring or disfavoring religion gleaned from “readily
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discoverable fact” that implicates the Establishment Clause). Plaintiffs’ discovery
request, which focuses on a campaign document from a private political campaign,
is irrelevant to that analysis of official government action or the message presented
by official government action. Further, as Plaintiffs’ emphasis on public
statements implicitly concedes, only such objective manifestations of purpose are
even arguably relevant to whether the Executive Order amounts to an
establishment of religion or represents religious animus. See id. Relying on
internal campaign materials would not only implicate the campaign’s constitutional
rights, as discussed above, it would “chill political debate during campaigns,”
Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995). At a minimum, the
“evidentiary universe” should be “limit[ed] . . . to activities undertaken while
crafting an official policy.” Washington v. Trump, No. 17-35105, Am. Order (Dkt
Entry No. 191), p. 6 (9th Cir. Mar. 17, 2017) (Kozinski, J., dissenting from denial
of rehearing en banc) (attached hereto as Exhibit 3).
Moreover, Plaintiffs’ discovery request seeks evidence of religious animus
to support their claim that the Executive Order violates the Establishment Clause.
But violation of the Establishment Clause turns on whether the government
officially and publicly communicates a message favoring or disfavoring religion.
See Board of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 696 (1994)
(plurality op.); McCreary, 545 U.S. at 863 (explaining that, absent a “divisive
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announcement” apparent to an outside observer, governmental action cannot not
facially impermissibly advance religion). The Executive Order conveys no
religious message and operates without regard to religion, and it was revised to
eliminate any misperception of religious purpose. Thus, Request No. 1 is not
relevant to the Establishment Clause analysis.
In addition, because Plaintiffs’ discovery request seeks evidence only to
support their Establishment Clause claim, it is not relevant or proportional to the
needs of the case, as required by Rule 26(b)(1). As noted above, any evidence of
religious animus is not relevant to an Establishment Clause claim where the
official government action does not convey a religious message. This Court was
mistaken when it stated that the “limited discovery” Plaintiffs seek “will be
relevant to any claim.” May 11 Order, at p. 4. All of Plaintiffs’ discovery requests
are aimed at seeking evidence of religious animus. It is inappropriate to allow
discovery on those issues, especially before deciding threshold legal issues as to
that claim, which would determine the appropriate scope of discovery (if any) on
that claim.
Even if the requested campaign document could be relevant to a challenge
against the initial executive order, that order has been revoked and replaced with a
substantially revised second order, after consultation with and advice from cabinet
members. Such actions show that the Executive Order at issue before this Court
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does not have a religious purpose or message, as one court has concluded. Sarsour
v. Trump, No. 17-cv-120, --- F. Supp. 3d ---, 2017 WL 1113305, at *12 (E.D. Va.
Mar. 24, 2017) (“the substantive revisions reflected in [the Order] have reduced the
probative value of the President’s [past] statements” and undercut any claim that
“the predomina[nt] purpose of [the Order] is to discriminate against Muslims based
on their religion.”); see also Washington v. Trump, No. 17-cv-00141, 2017 WL
1050354, at *5 (W.D. Wash. Mar. 17, 2017) (finding significant differences
between the provisions, scope, and articulated purposes of the two executive
orders).9 Therefore, the document sought is outside the scope of discovery under
Federal Rule of Civil Procedure 26(b)(1) because it is not relevant to the claims
and defenses in this case or proportional to the needs of the case. Omokehinde v.
Detroit Bd. of Educ., 251 F.R.D. 261 (E.D. Mich. 2007) (denying discovery in part
because documents sought could have no bearing on the elements of Plaintiff’s
claim). Requiring this discovery would be particularly inappropriate here, where
the requested discovery would burden the President and senior advisers. See
Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 386 (2004)
(recognizing the importance of “filter[ing] out insubstantial legal claims” before
imposing discovery on the President or his advisers).
9

But see Hawai’i v. Trump, --- F. Supp. 3d ---, 2017 WL 1011673 (D. Haw. Mar.
15, 2017); Int’l Refugee Assist. Proj. v. Trump, --- F. Supp. 3d ---, 2017 WL
1018235 (D. Md. Mar. 16, 2017).
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2. Even if the Court were to reject our objections that (1) discovery at this
point is improper as there is no showing of need given the fact that two nationwide
injunctions are in force and two appellate courts are considering the legal standards
that govern identical challenges; (2) Request No. 1 is premature, in part because
standing has not been established and no discovery conference has been held; (3)
the Request was served on the wrong entity, since it seeks a campaign document
rather than a government document; (4) requiring the President and his close
advisers to search for the document sought is unwarranted under Supreme Court
law absent a special showing of need that has not been made; and (5) the document
is not relevant to the legal claims being brought by Plaintiffs, and if in the unlikely
event the document were located in the official files of the Defendants, then there
would need to be an opportunity for the Defendants to review the document and
consider any privileges that may be applicable to it. Of course, no claim of
privilege could be properly evaluated or asserted until the document, if it exists,
has been obtained from the proper source and reviewed. And this Court may need
to give other non-parties an opportunity to assert potential privileges, as well. See
supra pp. 17-18.
Plaintiffs’ assertion that campaign and transition materials cannot be
privileged is too simplistic, particularly since their own legal arguments depend on
an assertion that the document at issue is relevant to determining the purpose of the
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President’s official action. Although the Government maintains that campaign
statements are not relevant here, and has moved to dismiss in part on this basis, if
this Court concludes otherwise, production would not be warranted until there is an
opportunity to fully consider any privileges that may apply to the materials—
potential privileges that may be asserted either by the Defendants or third parties
who are not parties to the litigation. Accordingly, even if the Court rejects the
objections identified above, that opportunity to consider the document and
applicable privileges by interested parties would be necessary.
Ultimately, in addition to the irrelevance of these materials, the harm of
potential loss of a privilege justifies limits on discovery at this time in this case.
See In re Ohio Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016)
(“Good cause [to limit discovery] exists if specific prejudice or harm will result
from the absence of a protective order.” (citations and internal quotations
omitted)); In re Cty. of Erie, 473 F.3d 413, 416 (2d Cir. 2007) (recognizing harm
of potential invasion of privilege and allowing a writ of mandamus to review
discovery orders that potentially invade a privilege where the issue is one of first
impression and the privilege may be lost); Perry, 591 F.3d at 1158-59 (same).
The Document Sought Can Be Obtained from Another, Less Burdensome
Source.
Relatedly, Request No. 1 is improper and unduly burdensome because it
seeks information that could be more easily obtained from third parties. The Court
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must limit discovery when “the discovery sought … can be obtained from some
other source that is more convenient, less burdensome, or less expensive.” Fed. R.
Civ. P. 26(b)(2)(C); Metavante Corp. v. Emigrant Sav. Bank, No. 05-CV-1221,
2008 WL 4722336, at *7 (E.D. Wis. Oct. 24, 2008) (noting prior holding denying
motion to compel where the documents were available from a “more convenient”
third-party source). The claimed author of the document sought, or other
individuals alleged to have knowledge of the document, are undeniably better
sources from which to obtain this document in light of the burdens imposed on the
government in searching for this document.
The Request is Vague.
Defendants object to the Request as vague because, while it asks for just a
single potentially identifiable memo created by Mr. Giuliani, it is not clear that
there is a simple way to identify the specific, final memorandum being referenced
without additional information that is in the hands of third parties (i.e., Mr.
Giuliani), not the government. Without the participation of Mr. Giuliani (or
perhaps the Trump campaign), Defendants ultimately must speculate regarding the
specific document being sought. That speculation would be based on figuring out
exactly what document was being referred to by third parties in news reports. That
is, it asks Defendants to guess what document was referred to by third parties (Mr.

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Giuliani, Rep. McCaul, and Ms. Phelan) in conversations with other third parties
(members of the press).
The Request Seeks Potentially Privileged Information.
Defendants object on the basis that the Request seeks potentially privileged
information. As set forth above, Defendants maintain that any documents relating
to the Trump Campaign are irrelevant; however, if the Plaintiffs were to establish
that such documents are legally relevant, the document sought would then be
potentially subject to a variety of privilege claims. Further, Defendants lack
sufficient information to determine if the document is covered by any privileges
that may be asserted by third parties who are not parties to this litigation.

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Response to Document Request No. 1:
Based on the foregoing objections, Defendants are not producing any
documents in response to this Request because, among other things, the Request is
premature, a search would place a burden on the President and senior level cabinet
members under Cheney that is not justified because Plaintiffs have not made the
required showing under Cheney, Plaintiffs are seeking a campaign document from
official entities, the document is not relevant, and even if the document were
relevant (and if it exists), there must be an adequate opportunity for the assertion of
any potentially applicable governmental or campaign privileges.

Dated: May 19, 2017
CHAD A. READLER
Acting Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel
WILLIAM C. PEACHEY
Director
GISELA A. WESTWATER
Assistant Director
EREZ REUVENI
Senior Litigation Counsel
By: /s/ Katherine J. Shinners
KATHERINE J. SHINNERS
Trial Attorney
34

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United States Department of Justice
Civil Division
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Phone: (202) 305-0106
joshua.press@usdoj.gov
BRIANA YUH
Trial Attorney
Attorneys for Defendants

35

Pg ID 1736

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Pg ID 1737

DRAFT
Attorney Work Product – Privileged & Confidential
ACRL v. Trump

CERTIFICATE OF SERVICE
I hereby certify that on May 19, 2017, I served the foregoing document,
DEFENDANTS’ RESPONSE AND OBJECTIONS TO PLAINTIFFS’ FIRST
SET OF DOCUMENT REQUESTS, REQUEST NO. 1, via email to all counsel of
record for the Plaintiffs per counsel’s written consent to receive service
electronically:
Helal A. Farhat
Salamey and Farhat
6053 Chase Road
Dearborn, MI 48126
Email: hfarhat@saflegal.com
Jason C. Raofield
Covington & Burling LLP
850 10th Street NW
Washington, DC 20001
Email: jraofield@cov.com
Kassem M. Dakhlallah
Hammoud, Dakhlallah & Associates PLLC
6050 Greenfield Road, Suite 201
Dearborn, MI 48126
Email: kassemdakhlallah@aol.com
Mona Fadlallah
P.O. Box 355
Dearborn Heights, MI 48127
Email: MONA@VIDALAWPLLC.COM
Natalie C. Qandah
Vida Law Group, PLLC
43050 Ford Road
Suite 160
Canton, MI 48187
Email: natalie@vidalawpllc.com
36

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DRAFT
Attorney Work Product – Privileged & Confidential
ACRL v. Trump

Nabih H. Ayad
Ayad Law, P.L.L.C.
645 Griswold Street
Suite 2202
Detroit, MI 48226
Email: ayadlaw@hotmail.com
Michael J. Steinberg
American Civil Liberties Union Fund of Michigan
2966 Woodward Avenue
Detroit, MI 48201
Email: msteinberg@aclumich.org
Miriam J. Aukerman
American Civil Liberties Union of Michigan
West Michigan Regional Office
1514 Wealth St., SE
Grand Rapids, MI 49506
Email: maukerman@aclumich.org
Daniel S. Korobkin
American Civil Liberties Union Fund of Michigan
2966 Woodward Ave.
Detroit, MI 48201
(313) 578-6824
Fax: (313) 578-6811
Email: dkorobkin@aclumich.org
Margo Schlanger
625 So. State Street
Suite LR910
Ann Arbor, MI 48109
Email: margo.schlanger@gmail.com
Nishchay H. Maskay
Covington & Burling LLP
850 Tenth St., NW
37

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Pg ID 1739

DRAFT
Attorney Work Product – Privileged & Confidential
ACRL v. Trump

Washington, DC 20001
Email: nmaskay@cov.com

/s/

Katherine J. Shinners
KATHERINE J. SHINNERS
Trial Attorney
United States Department of Justice
Office of Immigration Litigation

38