2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 1 of 33 Pg ID 1947 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. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY PENDING SUPREME COURT PROCEEDINGS Plaintiffs, by and through their undersigned counsel, oppose Defendants’ Motion for Stay Pending Supreme Court Proceedings for the reasons set forth in the attached supporting Memorandum. Dated: June 2, 2017 Respectfully submitted, 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 2 of 33 Pg ID 1948 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 2 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 3 of 33 Pg ID 1949 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 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 4 of 33 Pg ID 1950 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 4 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 5 of 33 Pg ID 1951 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’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY PENDING SUPREME COURT PROCEEDINGS 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 6 of 33 Pg ID 1952 TABLE OF CONTENTS INTRODUCTION .................................................................................................... 1 ARGUMENT ............................................................................................................ 2 I. II. THE COURT SHOULD DENY DEFENDANTS’ REQUEST FOR A STAY. ............................................................................................................. 2 A. Defendants Have a High Burden in Requesting a Stay. ...................... 2 B. Defendants Cannot Meet Their Burden of Establishing a Pressing Need for Delay or Irreparable Harm If a Stay Is Not Granted. ................................................................................................ 4 C. Defendants Have Not Met Their Burden to Prove that a Supreme Court Reversal in IRAP v. Trump Is Likely, or that a Decision by the Supreme Court Would Be Dispositive. .......................................... 8 THE COURT SHOULD GRANT IN PART AND DENY IN PART DEFENDANTS’ REQUEST FOR AN EXTENSION. ............................... 14 A. Defendants Have Not Established “Good Cause” for an Extension. ...................................................................................... 14 B. The Deadline for Defendants to Respond to Document Requests 2-4 and Interrogatories 1-2 Should Be Extended to Ten Days After the Court’s Ruling on the Pending Motion to Compel. ............ 16 C. Defendants Should Be Required to Respond Immediately to Interrogatories 3-5. ............................................................................. 18 CONCLUSION ....................................................................................................... 20 i 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 7 of 33 Pg ID 1953 TABLE OF AUTHORITIES Page(s) Cases Abuhouran v. Morrison, No. 06-cv-1207, 2006 WL 3834411 (N.D. Ohio Dec. 29, 2006).......................13 Aziz v. Trump, No. 17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ................................ 8 Caspar v. Snyder, 77 F. Supp. 3d 616, 644 (E.D. Mich. 2015) .....................................................3, 8 Citizens Banking Corp. v. Citizens First Bancorp, Inc., No. 07-cv-10985, 2007 WL 4239237 (E.D. Mich. Dec. 3, 2007)........................ 4 Coleman v. Ann Arbor Transp. Auth., 904 F. Supp. 2d 670 (E.D. Mich. 2012) ............................................................... 3 FDIC v. First Am. Title Ins. Co., No. 14-cv-13624, 2015 WL 418122 (E.D. Mich. Jan. 30, 2015) ......................... 3 Hawai’i v. Trump, No. 17-cv-0050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) ............................ 8 IRAP v. Trump, No. 17-1351, __ F.3d __, 2017 WL 2273306 (4th Cir. May 25, 2017), aff’g No. 17-cv-361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) ....................... 8 Landis v. N. Am. Co., 299 U.S. 248 (1936) ..................................................................................2, 3, 4, 5 Lilly Invs., LLC v. City of Rochester, No. 14-cv-10712, 2015 WL 753491 (E.D. Mich. Feb. 23, 2015) ......................12 Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) ................................................................................ 6 Nken v. Holder, 556 U.S. 418 (2009) ..............................................................................................3 ii 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 8 of 33 Pg ID 1954 Ohio Envtl. Council v. U.S. Dist. Court, 565 F.2d 393 (6th Cir. 1977) ............................................................................2, 4 Page v. Va. State Bd. of Elections, 15 F. Supp. 3d 657, 666 (E.D. Va. 2014) ...........................................................12 Roe v. Snyder, No. 16-cv-13353, 2017 WL 840407 (E.D. Mich. Mar. 3, 2017) ......................... 3 Schroeder v. Hess Indus., Inc., No. 12-cv-668, 2013 WL 2389489 (W.D. Mich. May 30, 2013) ........................ 6 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) ............................................................................19 United States v. Mandycz, 321 F. Supp. 2d 862 (E.D. Mich. 2004) .......................................................3, 4, 8 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ............................................................................................12 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ..........................................................................6, 8 iii 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 9 of 33 Pg ID 1955 INTRODUCTION On May 11, the Court entered an Order denying Defendants’ original motion to stay discovery, and required Defendants to serve responses and objections to Plaintiffs’ discovery requests on May 19 (Document Request 1) and June 2 (Documents Requests 2-4 and Interrogatories 1-5). In that motion, Defendants had argued that the Court should stay discovery because (1) resolution of Defendants’ motion to dismiss “may entirely resolve this case, thereby obviating the need for any discovery,” and (2) impending decisions from the Fourth and Ninth Circuits “would likely provide this Court with guidance as to how to proceed.” ECF #77, Pg. ID 1059-60. Subsequent to this Court’s decision rejecting Defendants’ prior stay motion, there have been two developments. First, the Court has scheduled oral argument on the motion to dismiss (as to which it has indicated a tentative view that the motion to dismiss will be denied, at least in part). Second, an overwhelming majority of an en banc panel of the Fourth Circuit has rejected the Government’s arguments. Incredibly, the Government now seeks a stay not only of discovery (as before), but also of the Court’s consideration of the motion to dismiss itself, simply by declaring (without support) that the Supreme Court will reverse the Fourth Circuit and do so in a way that obviates the need for discovery. 1 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 10 of 33 Pg ID 1956 This last-minute motion to stay is just the latest attempt by Defendants to avoid responding to the narrow discovery requests approved by the Court when it denied Defendants’ earlier motion to stay. The Court should deny the new motion to stay, and resolve the motion to dismiss. For the reasons discussed below, however, it should grant Defendants’ motion for an extension of the June 2 deadline, in part. ARGUMENT I. THE COURT SHOULD DENY DEFENDANTS’ REQUEST FOR A STAY. A. Defendants Have a High Burden in Requesting a Stay. The decision to stay proceedings is a matter committed to the Court’s discretion. Landis v. N. Am. Co., 299 U.S. 248, 256 (1936). In ruling on Defendants’ motion for a stay, this Court “must tread carefully . . . since a party has a right to a determination of its rights and liabilities without undue delay.” Ohio Envtl. Council v. U.S. Dist. Court, 565 F.2d 393, 396 (6th Cir. 1977). A party seeking a stay bears the heavy burden of showing “that there is pressing need for delay, and that neither the other party nor the public will suffer harm from entry of the order.” Id. When the grounds for a stay are that a separate case might at some future time affect the issues presented now, the burden on the requestor is especially high. Landis, 299 U.S. at 256. “[T]he burden of making out the justice and wisdom of a departure from the beaten track [lies] heavily on the [movant for a stay].” Id. “[T]he suppliant for a stay must make out a clear case of hardship or inequity in being 2 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 11 of 33 Pg ID 1957 required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else.” Id. at 255. “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009). In deciding a motion for stay pending a decision from the Supreme Court in another case, the court weighs four factors: “[1] the potential dispositive effect of the other case, [2] judicial economy achieved by awaiting adjudication of the other case, [3] the public welfare, and [4] the relative hardships to the parties created by withholding judgment.” Caspar v. Snyder, 77 F. Supp. 3d 616, 644 (E.D. Mich. 2015). In addition, a defendant seeking a stay “for the specific purpose of awaiting the Supreme Court’s decision on a petition for a writ of certiorari” must demonstrate “a significant possibility that the Supreme Court would reverse the judgment below,” and “a likelihood of irreparable harm, assuming the correctness of the applicant’s position, if the judgment is not stayed.” United States v. Mandycz, 321 F. Supp. 2d 862, 864 (E.D. Mich. 2004) (quoting Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1319 (1994) (Rehnquist, C.J., in chambers) (internal quotation marks and alterations omitted)); accord FDIC v. First Am. Title Ins. Co., No. 14-cv-13624, 2015 WL 418122, at *2 (E.D. Mich. Jan. 30, 2015). 3 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 12 of 33 B. Pg ID 1958 Defendants Cannot Meet Their Burden of Establishing a Pressing Need for Delay or Irreparable Harm If a Stay Is Not Granted. Defendants cannot meet their high burden of establishing that all proceedings in this case should be stayed just because they asked the Supreme Court to grant certiorari in a different case. First, Defendants have not shown that there is a “pressing need for delay,” Ohio Envtl. Council, 565 F.2d at 396, that “hardship or inequity” will result if litigation proceeds along the normal course, Landis, 299 U.S. at 255, or that there is a “likelihood of irreparable harm,” Mandycz, 321 F. Supp. 2d at 864, if the stay is denied. “[B]eing required to defend a suit, without more, does not . . . demonstrate that ‘pressing need,’ nor any hardship or inequity in proceeding” with the case. Citizens Banking Corp. v. Citizens First Bancorp, Inc., No. 07-cv10985, 2007 WL 4239237, at *7 (E.D. Mich. Dec. 3, 2007) (quoting Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005)). Contrary to Defendants’ contention that Plaintiffs are seeking “wide-ranging discovery” that “imposes a heavy burden,” ECF #105, at Pg. ID 1900, Plaintiffs are seeking production of only four discrete categories of documents and responses to just five narrow interrogatories, and the Court has authorized discovery only “on a limited basis.” ECF #89, at Pg. ID 1225; ECF #78, at Pg. ID 1084-86. And, as Plaintiffs have explained at length, Cheney does not apply in the face of narrow discovery requests for information that is not publicly available. ECF #104, at Pg. 4 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 13 of 33 Pg ID 1959 ID 1663-65. Under the facts of this case, Defendants will not be prejudiced by (let alone suffer irreparable harm from) the limited discovery at issue here. Landis itself shows that Defendants are overreaching. There, the Supreme Court was considering a “case[] of extraordinary public moment” where “great issues are involved, great in their complexity, great in their significance.” 299 U.S. at 256. Dozens of similar cases had been brought by plaintiffs seeking to enjoin enforcement of the same law, but had been stayed pending Supreme Court review of one such case. Id. at 249-52. While acknowledging “the power inherent in every court to control the disposition of the causes on its docket,” the Court rejected the idea that this power allowed the lengthy stay entered by the district court, even in such a significant case. Id. at 254-56. The Court warned that “[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.” Id. at 255. Here, Defendants are seeking a similarly lengthy stay. Even if the Supreme Court grants the Government’s petition for certiorari, the earliest the matter will be heard is October. Thus, allowing time for briefing, argument, and the Court’s decision, Defendants are seeking a stay of at least six months (and likely longer). Such a prolonged stay would severely delay the case and prejudice Plaintiffs, preventing them from securing the evidence they seek to proceed with their case. Moreover, during the pendency of the Supreme Court review, “documents may be 5 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 14 of 33 Pg ID 1960 misplaced,” Schroeder v. Hess Indus., Inc., No. 12-cv-668, 2013 WL 2389489, at *1 (W.D. Mich. May 30, 2013), further prejudicing Plaintiffs. Indeed, there is reason to question whether Defendants have taken sufficient steps to preserve relevant evidence, given their refusal even to conduct a search to determine what documents exist, and their position that documents in the possession of Named Defendants in their “private capacities” are not within the possession, custody, or control of the Defendants for purposes of this case. If the Court stays the case, the risk of evidence being lost increases substantially. Prolonged delay would also harm the public interest. See Miller v. City of Cincinnati, 622 F.3d 524, 540 (6th Cir. 2010) (“[I]t is always in the public interest to prevent violation of a party’s constitutional rights.”).1 Finally, the stays entered in other cases challenging the Executive Orders (all of which are in the Fourth or Ninth Circuits) have no significance here. Most of the cases involved stipulated or unopposed motions to stay, including stays in the very cases on appeal. ECF #105-2 (IRAP), 105-3 (Sarsour), 105-4 (Hawai’i), and 105-7 (Doe). In the Pars cases, the court ordered case activity to proceed, while merely deferring entry of an injunction (after finding likelihood of success on the merits) 1 There is even less reason to be confident that the third parties pointed to by Defendants will preserve relevant evidence Plaintiffs may ultimately seek by subpoena. In fact, in a recent interview with the Washington Post about this Court’s May 11 Order, Mr. Giuliani offhandedly referred to “whatever documents he still had,” and implied he had no obligations because the Order “was directed to the government, not to him personally.” ECF #104-1, at Pg. ID 1869-70. 6 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 15 of 33 Pg ID 1961 due to questions about whether plaintiffs suffered “imminent or certain” harm in light of the existing nationwide injunctions. ECF #105-5, ECF #105-6. The Washington case is the only one that involved a contested motion to stay. There, the Ninth Circuit had already heard oral argument in the Hawai’i case, and defendants had not even filed their motion to dismiss (whereas here, the motion to dismiss is fully briefed and oral argument has been scheduled). ECF #104-1, at Pg. ID 1746, 1749. And, Judge Robart was concerned about the “sheer volume” of discovery, which, unlike here, was not limited to the pre-inauguration period, and included “up to 30 depositions of government officials, including White House staff and Cabinetlevel officers.” ECF #104-1, at Pg. ID 1750. As court after court has made clear, the claims asserted in this case are fully supported as a matter of constitutional law, and the harms resulting from the violation of Plaintiffs’ constitutional rights are grave. This is not a case in which the claims are dubious, or the injury insubstantial. There is simply no basis for Defendants’ position that Plaintiffs should be forced to wait in the starting blocks for six months or more, merely because Defendants hope the Supreme Court will not only intervene, but will issue a decision on the appeal of a preliminary injunction in a way that renders discovery on the merits unnecessary. By contrast, it would impose no great injustice for Defendants to respond to the small handful of limited discovery requests approved in the Court’s May 11 Order. 7 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 16 of 33 C. Pg ID 1962 Defendants Have Not Met Their Burden to Prove that a Supreme Court Reversal in IRAP v. Trump Is Likely, or that a Decision by the Supreme Court Would Be Dispositive. Defendants have also failed to show that there is “a significant possibility that the Supreme Court would reverse the judgment below,” Mandycz, 321 F. Supp. 2d at 864, or that, even in the event of such a reversal, any such decision would be dispositive in this case. Caspar, 77 F. Supp. 3d at 644. Defendants have previously made similar self-serving predictions about what appellate courts will do, only to be proven wrong. In their prior motion to stay, Defendants insisted that discovery should be halted because a decision from the Fourth Circuit “would likely provide this Court with guidance as to how to proceed.” ECF #77, Pg. ID 1059-60. Of course, an overwhelming majority of an en banc panel of the Fourth Circuit flatly rejected the Government’s arguments, such that a stay pending that decision would have accomplished nothing but delay. Now, in their renewed motion to stay discovery, Defendants insist that a decision of the Supreme Court will “provide substantial guidance to this Court.” ECF #105, at Pg. ID 1899. To say that the litigation of the Executive Orders has not been going well for Defendants is an understatement. Even under the challenging “likelihood of success” standard for seeking an injunction, Defendants’ positions have been repeatedly rejected by the courts in cases challenging the Executive Orders. See, e.g., IRAP v. Trump, No. 17-1351, __ F.3d __, 2017 WL 2273306 (4th Cir. May 25, 2017), aff’g 8 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 17 of 33 Pg ID 1963 No. 17-cv-361, 2017 WL 1018235 (D. Md. Mar. 16, 2017); Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017); Hawai’i v. Trump, No. 17-cv-0050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017); Aziz v. Trump, No. 17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). Moreover, the Fourth Circuit’s decision in IRAP was well reasoned and strongly supported by Supreme Court precedent. See, e.g., 2017 WL 2273306, at *14-24. And the fact that ten of the thirteen judges supported the en banc decision of that Court demonstrates that the probabilities weigh decidedly against Defendants. Defendants cannot justify a stay simply by declaring that there is a “significant possibility” that the Supreme Court will reverse the Fourth Circuit. Defendants were wrong when they made that same prediction about the Fourth Circuit’s review of the District Court, and they do not even pretend to offer any support for that self-serving proclamation now. Defendants’ position would require the Supreme Court to reverse decades of precedent and hold that evidence of animus is not relevant to Establishment Clause claims. See ECF #104, at Pg. ID 1656-59. That seems at best quite speculative. Moreover, even if a majority of the Supreme Court were to reverse the Fourth Circuit and thereby disagree with the vast majority of federal judges to have considered the Executive Orders, that result would not dispose of this case or obviate the need for the limited discovery that Plaintiffs currently seek. 9 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 18 of 33 Pg ID 1964 The Government’s petition for certiorari in IRAP sets out three questions for Supreme Court review. It is of course impossible to know whether the Court will agree to take up any of those questions, much less which ones. The Government argues that the Supreme Court should decide: 1. Whether the Fourth Circuit correctly found that a particular individual plaintiff had standing to bring an Establishment Clause claim based on allegations that the Executive Order conveys an anti-Islamic message and also impacts his wife’s ability to obtain a visa? 2. Whether the Fourth Circuit correctly found that the IRAP plaintiffs had a likelihood of success on their Establishment Clause Claim? 3. Whether the district court’s injunction in IRAP was overbroad? Petition for Writ of Certiorari, Trump v. IRAP, June 1, 2017 (“IRAP Pet.”), at I. Even assuming, arguendo, that the Supreme Court takes up the first two questions and decides them adversely to the IRAP plaintiffs, that would not dispose of the Plaintiffs’ claims here. (The third question presented in IRAP is not relevant to this litigation, except to the extent that, if the Court were to find the injunction overbroad, it would make it all the more urgent for the Plaintiffs here to be adequately prepared to move for their own preliminary injunction.) With respect to the first question, even if the Supreme Court concluded that the individual IRAP plaintiff could not establish standing for an Establishment Clause claim based on the alleged stigmatic and family-separation injuries, that 10 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 19 of 33 Pg ID 1965 would not resolve the question of whether the plaintiffs here have standing for an Establishment Clause claim (much less the question of standing for their Free Speech and Equal Protection claims). As set out in Plaintiffs’ Opposition to Defendants’ Motion to Dismiss, ECF #86, Pg. ID 1175-87, Plaintiffs here assert not only stigmatic injury and harms from family separation, but also economic injury and damage to their organizational missions and operations. For example, the Executive Order has interfered with the ability of members of the American Arab Chamber of Commerce, the Arab American and Chaldean Council, and the Arab American Studies Association (“AASA”) to conduct business, develop business relationships, hire employees, and recruit students, and has imposed direct financial costs on both organizational and individual plaintiffs. ECF #41, Second Am. Cplt. (“SAC”) ¶¶ 245-47, 249-50, 255-62, 268, 270, 273. Moreover, the Government’s cert petition itself acknowledges that plaintiffs have standing to bring a First Amendment challenge to the exclusion of speakers whom plaintiffs wish to bring to the United States. IRAP Pet., at 14-15. Plaintiffs here, unlike in IRAP, assert precisely such a claim, alleging that the Executive Order “directly interferes with [Plaintiff] ACLU’s ability to plan for and hold” a “Voices of the Muslim Ban” event that it is organizing, because the Executive Order “will either prevent the ACLU from bringing in the ACLU’s desired speakers or will create obstacles to bringing in those speakers that would not exist for speakers who 11 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 20 of 33 Pg ID 1966 are not from the Muslim-majority Designated Countries.” SAC ¶¶ 236, 237. And the Executive Order impedes plaintiff AASA “from inviting scholars from the Designated Countries to present at academic conferences and engage in other collaborative research and scholarship projects.” Id. ¶ 271. Given that the Government concedes standing for the First Amendment claim, it is clear that even if the Supreme Court grants cert on Question I and decides it adversely to the IRAP plaintiffs, the case before this Court will proceed. Second, assuming arguendo that the Supreme Court grants cert on Question II and decides that the IRAP plaintiffs have not shown a likelihood of success on their Establishment Clause claim, that likewise would not dispose of this case. A decision on the Establishment Clause claim is not a decision on the Equal Protection claim or the Free Speech claim. Thus, the discovery sought here is relevant to claims that are not even part of the IRAP cert petition. Courts routinely allow discovery as part of the equal protection “inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). Thus, courts assessing equal protection claims 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 (E.D. Va. 2014), and 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, 12 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 21 of 33 Pg ID 1967 at *10 (E.D. Mich. Feb. 23, 2015). Similarly, Plaintiffs are entitled to “full discovery” on their free speech claim. Coleman v. Ann Arbor Transp. Auth., 904 F. Supp. 2d 670, 699 n.17 (E.D. Mich. 2012). Indeed, this Court has already found that the “limited discovery” Plaintiffs seek “will be relevant to any claim.” ECF # 89, at Pg. ID 1222. In other words, this case will proceed, and discovery will be needed, on the Equal Protection and Free Speech claims regardless of any decision the Supreme Court might make in IRAP. That fact militates strongly against a stay. See, e.g. Roe v. Snyder, No. 16-cv-13353, 2017 WL 840407, at *3 (E.D. Mich. Mar. 3, 2017) (on appeal) (denying stay pending Supreme Court decision in a related case because even if the Court decided an Ex Post Facto claim adversely to the plaintiff, the plaintiff also had a vagueness claim that would not be decided by the Supreme Court); Abuhouran v. Morrison, No. 06-cv-1207, 2006 WL 3834411, at *1 (N.D. Ohio Dec. 29, 2006) (denying motion to hold in abeyance because “even if the Supreme Court issued a favorable ruling, such a ruling alone would not have a dispositive effect on Plaintiff’s case,” which also concerned other issues). Moreover, the IRAP appeal, by definition, concerns the propriety of a preliminary injunction on the Establishment Clause issue, not a final decision on the merits. While a Court ruling on the “likelihood of success” of an Establishment Clause claim may provide guidance on how this Court should ultimately evaluate 13 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 22 of 33 Pg ID 1968 such a claim, it would not obviate the need for discovery even with respect to that claim. For example, as explained in Plaintiffs’ pending motion to compel (ECF #104, at Pg. ID 1655), a Supreme Court decision about the relevance of campaign statements would not obviate the need for Document Request 1 (which seeks a memo witnesses have described as the basis for the initial Executive Order); nor would it have any bearing on Interrogatories 3-5, which, as discussed below, merely seek facts that existed at the time of the Executive Order and which are clearly relevant to the national security justification. In sum, Defendants overstate the import of a possible Supreme Court decision to this case and ignore the standards that the Court must apply in deciding whether to grant a stay pending review of a Supreme Court appeal in another case. In so doing, they fail to carry their burden to show that a stay is warranted here. II. THE COURT SHOULD GRANT IN PART AND DENY IN PART DEFENDANTS’ REQUEST FOR AN EXTENSION. A. Defendants Have Not Established “Good Cause” for an Extension. Defendants have had ample time to prepare responses and objections to Plaintiffs’ narrow discovery requests. It has been eleven weeks since Plaintiffs first served their initial discovery requests, and pursuant to the Court’s May 11 Order, Defendants had more than three weeks to prepare their responses and objections to the three document requests and five interrogatories at issue. 14 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 23 of 33 Pg ID 1969 For whatever reason, even after the Court ordered limited discovery to proceed, Defendants focused their efforts entirely on delaying discovery rather than responding. They served initial disclosures that disclosed nothing at all. Instead of simply producing a copy of the Giuliani memo, they prepared a 34-page brief attempting to justify their refusal even to search for the document. And rather than endeavoring to comply with the Court’s order to serve responses and objections to the remaining discovery requests on June 2, Defendants waited until the last minute and then filed a motion for extension, even though they had decided to file such a motion a week earlier. Raofield Decl., Ex. A (email confirming Defendants’ request of May 24 seeking Plaintiffs’ concurrence to extend the June 2 deadline). In any event, Defendants have not established “good cause” for an extension. Instead, they simply recycle arguments the Court has previously considered and rejected. They complain about “the complex nature of the legal questions raised by Plaintiffs’ discovery requests (which implicate novel questions regarding seeking private materials from government officials).” ECF #105, at Pg. ID 1902-03. That very same argument was made in support of their prior motion to stay. ECF #82, at Pg. ID 1132 (“the complicated issue of seeking discovery from official-capacity defendants of documents that were allegedly generated and possessed by them as private individuals”). And they suggest they need time “to coordinate with the numerous Defendant agencies regarding both objections and responses.” ECF #105, 15 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 24 of 33 Pg ID 1970 at Pg. ID 1903. Again, the identical argument was made in support of their original motion to stay. ECF #77, at Pg. ID 1069 (“these requests would require high levels of coordination between large agencies”). This Court has already rejected those arguments. The fact is that every action Defendants have taken has been calculated to avoid and delay Plaintiffs’ very reasonable discovery requests. Indeed, Plaintiffs offered to consent to a two-week extension of the June 2 deadline as to the document requests, if the Defendants would merely agree not to delay their response and objections to the interrogatories beyond the June 2 deadline. Raofield Decl., Ex. B. Defendants rejected even that eminently reasonable proposal. Id. Defendants cannot manufacture good cause through their own obstinacy. B. The Deadline for Defendants to Respond to Document Requests 24 and Interrogatories 1-2 Should Be Extended to Ten Days After the Court’s Ruling on the Pending Motion to Compel. Unfortunately, the fact remains that Defendants have not yet begun to search for documents responsive to any of the document requests. And because responses to Interrogatories 1-2 necessarily involve the related document requests, Defendants presumably are unprepared to respond to those interrogatories. As such, Defendants’ repeated delays have forced a situation where they will require additional time to prepare their responses and objections to those requests. 16 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 25 of 33 Pg ID 1971 Although Plaintiffs are frustrated by Defendants’ endless delay tactics, we are pragmatic and wish to proceed in the manner that will result in the production of the requested documents and information as soon as possible. As such, Plaintiffs request that the Court grant Defendants’ motion to extend the prior June 2 deadline for Defendants’ responses and objections to Document Requests 2-4 and Interrogatories 1-2 until ten days after the Court’s ruling on the motion to compel with respect to Document Request 1. To avoid further unnecessary delays, however, Plaintiffs have two modest requests. First, the briefing procedures set forth in the Court’s May 11 Order should remain in effect (i.e., Defendants should set forth all of their objections and arguments in their response, which Plaintiffs are to attach to their motion to compel, with no further briefing unless requested by the Court). Second, Defendants should be required to comply with the Court’s order on the pending motion to compel. In other words, while Defendants may of course preserve any objections, Defendants should not be permitted to wait ten days only to withhold discovery on the basis of objections the Court has already rejected. This should be entirely acceptable to Defendants because it is a basis for their extension request. 2 2 ECF #105, at Pg. ID 1903 (“It may also be prudent to grant an extension until two weeks after a ruling on the pending motion to compel regarding Plaintiffs’ Document Request No. 1. A ruling on that motion could . . . inform Defendants’ objections and responses to the remaining requests that seek similar categories of documents and 17 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 26 of 33 C. Pg ID 1972 Defendants Should Be Required to Respond Immediately to Interrogatories 3-5. By contrast, there is no basis at all for any further extension of the deadline for Defendants to respond to Interrogatories 3-5. Those interrogatories are simple, straightforward, and highly relevant. For example, Interrogatory 3 states: Identify all foreign-born individuals from Iran, Libya, Somalia, Sudan, Syria or Yemen, who are among the “hundreds of persons” referred to in Section 1(h) of Executive Order 13780 (i.e., “Since 2001, hundreds of persons born abroad have been convicted of terrorismrelated crimes in the United States.”). For each such individual, identify the date of conviction, the court and docket number of the relevant case, the crime(s) with which the individual was convicted, the date the individual was admitted to the United States, and the nation(s) of origin and citizenship of the individual. Interrogatories 4 and 5 are similar. See Raofield Decl., Ex. C. The Government can hardly claim not to know this information or object to these requests as unduly burdensome, because the Government’s own position is that this factual information supports the national security justification for the ban on entry by individuals from these six countries. To the extent the Government might suggest it would be burdensome to identify the basic information requested regarding the individuals and convictions, such hypothetical objections should be rejected out of hand. Indeed, it is entirely possible that the response to this information. Such a ruling would also inform the parties’ subsequent meet and confers on discovery issues.”). 18 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 27 of 33 Pg ID 1973 interrogatory will be as simple as admitting that very few (if any) of those “hundreds of persons” were from those six countries. Such a response would undermine the Government’s litigation position, but the Government cannot contend the request is irrelevant or unduly burdensome. Moreover, in order to avoid any claim of executive privilege, Plaintiffs crafted these three interrogatories to seek only discrete factual information known to the Government, not communications involving the President (or anyone else). As such, Defendants cannot delay their responses with vague suggestions that the requests might somehow implicate issues of executive privilege. The fact that there is no basis for asserting executive privilege, and the fact that this information is not available from any other source, provide two independent reasons why Defendants cannot delay their responses by invoking Cheney. ECF #104, at Pg. ID 1663-65. For these reasons, the Court should enter an order requiring Defendants to serve responses and objections to Interrogatories 3-5 within two days. In addition, to the extent Defendants withhold any information on the basis of their objections, they should be ordered to prepare their responses so that no further delay would be required if the Court grants a motion to compel. Nearly three weeks passed between the Court’s May 11 Order directing Defendants to respond to these interrogatories and Defendants’ last-minute motion to delay its response. Given the straightforward 19 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 28 of 33 Pg ID 1974 nature of the interrogatories, Defendants should not be permitted to delay responses to these interrogatories any further. CONCLUSION In order to facilitate the efficient and organized adjudication of Defendants’ objections and the production of the requested discovery, Plaintiffs respectfully request that the Court enter an order denying Defendants’ motion to stay, and setting forth a process for Defendants to respond to Plaintiffs’ discovery requests. First, with respect to Document Request 1, the Court should enter an order granting Plaintiffs’ motion to compel, and implementing the 5/10/15 day timetable identified in that motion for submission of the document for in camera review, assertions of privilege, and response by Plaintiffs. ECF #104, at Pg. ID 1672-73. Second, with respect to Documents Requests 2-4 and Interrogatories 1-2, the Court should extend the prior June 2 deadline for Defendants’ responses and objections until ten days after the Court’s ruling on the pending motion to compel with respect to Document Request 1. The briefing procedures set forth in the May 11 Order should remain in effect, and Defendants should be instructed not to withhold any discovery on the basis of objections addressed and rejected in the Court’s order on the motion to compel with respect to Document Request 1. Third, with respect to Interrogatories 3-5, the Court should enter an order requiring Defendants to serve responses and objections within two days of the 20 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 29 of 33 Pg ID 1975 Court’s ruling denying Defendants’ motion to stay. Again, the briefing procedures set forth in the May 11 Order should remain in effect, and to the extent Defendants withhold information on the basis of any objections asserted, they should be ordered to prepare their responses so no further delay is required if the Court grants a motion to compel those responses. Dated: June 2, 2017 Respectfully submitted, 21 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 30 of 33 Pg ID 1976 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 22 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 31 of 33 Pg ID 1977 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 23 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 32 of 33 Pg ID 1978 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 24 2:17-cv-10310-VAR-SDD Doc # 110 Filed 06/02/17 Pg 33 of 33 Pg ID 1979 CERTIFICATE OF SERVICE This Memorandum and the supporting Declaration of Jason Raofield and Exhibits thereto was filed on June 2, 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) 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 1 of 22 Pg ID 1980 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. DECLARATION OF JASON RAOFIELD IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO MOTION FOR STAY PENDING SUPREME COURT PROCEEDINGS Pursuant to 28 U.S.C. § 1746(2), I, Jason Raofield, hereby declare as follows: 1. I am a Partner at the firm of Covington & Burling and serve as counsel to American Civil Liberties Union of Michigan, Arab American and Chaldean Council, Arab American Studies Association, Adeeb Saleh, Sofana Bella, Hilal Alkateeb and S.A. 2. I respectfully submit this declaration in support of Plaintiffs’ Motion to Compel Production of Documents. 3. Attached hereto as Exhibit A is a true and correct copy of an email confirming Defendants’ request of May 24 seeking Plaintiffs’ concurrence to extend the June 2 deadline, dated May 25, 2017. 1 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 2 of 22 4. Pg ID 1981 Attached hereto as Exhibit B is a true and correct copy of an email confirming Plaintiffs’ offer to consent to extension as to document requests, not interrogatories, and Defendants’ rejection thereof, dated May 30, 2017. 5. Attached hereto as Exhibit C is a true and correct copy of Plaintiffs’ First Set of Interrogatories to Defendants, dated April 6, 2017. I declare under penalty of perjury that the foregoing is true and correct. Executed on this day, June 2, 2017 /s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Covington & Burling LLP One CityCenter 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 jraofield@cov.com 2 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 3 of 22 Pg ID 1982 INDEX OF EXHIBITS Exhibit Description A Email confirming Defendants’ request of May 24 seeking Plaintiffs’ concurrence to extend the June 2 deadline, dated May 25, 2017. B Email exchange confirming Plaintiffs’ offer to consent to extension as to document requests, not interrogatories, and Defendants’ rejection thereof, dated May 30, 2017. C Plaintiffs’ First Set of Interrogatories to Defendants, dated April 6, 2017. 1 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 4 of 22 RAOFIELD DECLARATION EXHIBIT A Pg ID 1983 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 5 of 22 From: Sent: To: Cc: Subject: Pg ID 1984 Shinners, Katherine J. (CIV) Thursday, May 25, 2017 13:07 Miriam Aukerman; Maskay, Nishchay; Raofield, Jason Press, Joshua S. (CIV); Yuh, Briana (CIV); Westwater, Gisela (CIV) Discovery in ACRL v. Trump Counsel, I'm reaching out for two reasons: (1) To check in on what I discussed with Miriam yesterday: whether Plaintiffs would concur in a motion for a 1-week extension of the June 2 deadline to respond to Plaintiffs' remaining discovery requests, in light of the briefing requirements imposed by the Court's order to the extent Defendants object to furnishing all or a portion of the information or documents requested, as well as the need to coordinate with various entities. Please let us know your position once you are able to discuss. (2) As also mentioned to Miriam, we have been working on some proposed revisions to your proposed confidentiality protective order, as well as a proposed clawback order, and hope to send those (back) to you this week or early next. Regards, Katie Katherine Shinners Trial Attorney United States Department of Justice Office of Immigration Litigation - District Court Section Post Office Box 868 Ben Franklin Station Washington, DC 20044 8 202-598-8259 202-305-7000 katherine.j.shinners@usdoj.gov 1 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 6 of 22 RAOFIELD DECLARATION EXHIBIT B Pg ID 1985 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 7 of 22 From: Sent: To: Cc: Subject: Pg ID 1986 Shinners, Katherine J. (CIV) Tuesday, May 30, 2017 23:30 Miriam Aukerman; hfarhat@saflegal.com; Raofield, Jason; kassemdakhlallah@aol.com; mona@vidalawpllc.com; natalie@vidalawpllc.com; ayadlaw@hotmail.com; Michael J. Steinberg; Dan Korobkin; margo.schlanger@gmail.com; Maskay, Nishchay Westwater, Gisela (CIV); Press, Joshua S. (CIV); Yuh, Briana (CIV) RE: ACRL v. Trump, No. 1710310 Miriam, Defendants do not agree to commit to providing responses/objections to the interrogatory responses on June 2, 2017, in exchange for Plaintiffs’ agreement to an extension of two weeks to respond to the remaining document requests. We would like to file our motion for stay/extension as soon as possible, so I intend to represent that Plaintiffs’ counsel stated that they would agree to an extension to respond to the remaining document requests only if Defendants agreed not to seek an extension to respond to Plaintiffs’ First Set of Interrogatories. Katie From: Shinners, Katherine J. (CIV) Sent: Tuesday, May 30, 2017 10:10 PM To: 'Miriam Aukerman' ; hfarhat@saflegal.com; Raofield, Jason ; kassemdakhlallah@aol.com; mona@vidalawpllc.com; natalie@vidalawpllc.com; ayadlaw@hotmail.com; Michael J. Steinberg ; Dan Korobkin ; margo.schlanger@gmail.com; Maskay, Nishchay Cc: Westwater, Gisela (CIV) ; Press, Joshua S. (CIV) ; Yuh, Briana (CIV) Subject: RE: ACRL v. Trump, No. 1710310 Thanks Miriam. As to the second point, I should have been more clear about the relief we were requesting with respect to an extension. We believed Plaintiffs opposed any extension, so I was a bit imprecise. We are requesting an extension of two weeks, or, if the Court thinks appropriate and helpful, an extension until two weeks after the Court rules on the motion to compel. I will see if we can agree to an extension with respect to just the document requests, but our bases for requesting the extension apply to all responses to all requests. Is your consent to an extension for the document requests contingent on providing responses and objections to the Interrogatories on June 2? On the third point, I should be able to provide you with something tomorrow. Katie Katherine Shinners Trial Attorney United States Department of Justice Office of Immigration Litigation – District Court Section Post Office Box 868 Ben Franklin Station Washington, DC 20044  202-598-8259  202-305-7000  katherine.j.shinners@usdoj.gov 1 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 8 of 22 Pg ID 1987 From: Miriam Aukerman [mailto:maukerman@aclumich.org] Sent: Tuesday, May 30, 2017 8:50 PM To: Shinners, Katherine J. (CIV) ; hfarhat@saflegal.com; Raofield, Jason ; kassemdakhlallah@aol.com; mona@vidalawpllc.com; natalie@vidalawpllc.com; ayadlaw@hotmail.com; Michael J. Steinberg ; Dan Korobkin ; margo.schlanger@gmail.com; Maskay, Nishchay Cc: Westwater, Gisela (CIV) ; Press, Joshua S. (CIV) ; Yuh, Briana (CIV) Subject: RE: ACRL v. Trump, No. 1710310 Katie, With respect to your first point regarding the hearing date, we will confer with our co-counsel and get back to you in the morning. With respect to the second point, so that we can confer with our cocounsel, please let us know as soon as possible whether Defendants would be willing to agree to the following approach. To permit time for the Court to address the pending motion to compel on Document Request No. 1, which you suggest may shed light on the other document requests, we would concur in your request for an extension of two weeks for your responses to Document Requests 24. You would agree, however, to file your responses and objections to Interrogatories 1-5 on Friday as currently scheduled. With regard to your third point, so that we can properly confer with our co-counsel, can you please send us an email identifying the issues you would be addressing in such a brief? It is obviously important that we know the issues we would be agreeing to let you address (not just examples), but at the same time we are trying to avoid creating unnecessary work for you. Thus, very short bullets simply identifying each of the issues you would be addressing would be fine. Please respond as soon as you are able, and we will then confer with our co-counsel. We should be able to get back to you tomorrow morning. Have a good night, Miriam Miriam Aukerman Senior Staff Attorney American Civil Liberties Union of Michigan From: Shinners, Katherine J. (CIV) [mailto:Katherine.J.Shinners@usdoj.gov] Sent: Tuesday, May 30, 2017 7:36 PM To: hfarhat@saflegal.com; Raofield, Jason; kassemdakhlallah@aol.com; mona@vidalawpllc.com; natalie@vidalawpllc.com; ayadlaw@hotmail.com; Michael J. Steinberg; Miriam Aukerman; Dan Korobkin; 2 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 9 of 22 Pg ID 1988 margo.schlanger@gmail.com; Maskay, Nishchay Cc: Westwater, Gisela (CIV); Press, Joshua S. (CIV); Yuh, Briana (CIV) Subject: ACRL v. Trump, No. 1710310 Counsel, I’m reaching out about a few requests for concurrence that I recently discussed with Miriam. Given there are different attorneys for the different Plaintiffs, she asked that I send an email out to everyone. • • • First, and probably most urgently, Defendants are seeking to come to an agreement with Plaintiffs about asking the Court to reschedule the 6/6 hearing on Defendants’ Motion to Dismiss due to scheduling conflicts for our principal attorneys. Since my conversation with Miriam, I have firmed up what dates we are available: we can do 6/9 or 6/13-6/16. I look forward to hearing back from Miriam on whether we can agree to ask to reschedule and propose any of these new dates. Second, we intend to seek a stay of proceedings pending Supreme Court review, as the government intends to seek review of the 4th Circuit IRAP decision. Please let me know as soon as you are able whether Plaintiffs agree to or oppose this relief. o In the alternative, we are asking for a two-week extension, or whatever extension the Court deems appropriate, on the remaining discovery requests on the ground of the time needed to respond, that the issues raised are novel, and the parties could potentially benefit from a ruling on the pending motion to compel before conducting another round of briefing and conference. My understanding from prior emails with counsel is that Plaintiffs do not agree to any extension. Third, we intend to seek leave to file a limited opposition to the Motion to Compel that would be in the nature of a reply and would serve only to respond to arguments that we could not have affirmatively addressed, for the purpose of aiding the Court’s resolution. We would like to request 15 pages but are willing to negotiate page limits. One issue in particular we will raise, and that could not have been anticipated, is Plaintiffs’ argument that the scope of discovery includes Congress or Congressional employees. Please let me know if Plaintiffs will consent to our motion for leave to file an opposition. Thanks very much for your time, Katie Katherine Shinners Trial Attorney United States Department of Justice Office of Immigration Litigation – District Court Section Post Office Box 868 Ben Franklin Station Washington, DC 20044  202-598-8259  202-305-7000  katherine.j.shinners@usdoj.gov 3 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 10 of 22 RAOFIELD DECLARATION EXHIBIT C Pg ID 1989 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 11 of 22 Pg ID 1990 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al., Case No. 2:17-cv-10310-VAR-SDD Plaintiffs, v. Hon. Victoria A. Roberts DONALD TRUMP, et al., Mag. J. Stephanie D. Davis Defendants. PLAINTIFFS’ FIRST SET OF INTERROGATORIES TO DEFENDANTS Plaintiffs hereby propound the following First Set of Interrogatories to Defendants, to be answered separately and under oath under Rule 33 of the Federal Rules of Civil Procedure. DEFINITIONS AND INSTRUCTIONS A. Definitions As used herein, the identified terms or abbreviations have the following meanings: 1. “DOCUMENT REQUEST” refers to Plaintiffs’ First Set of Document Requests to Defendants in this action. 1 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 12 of 22 Pg ID 1991 2. “INTERROGATORY” refers to Plaintiffs’ First Set of Interrogatories to Defendants in this action. 3. “TRUMP CAMPAIGN” means Donald J. Trump for President, Inc., Trump Make America Great Again Committee, and all of their affiliates, parents, subsidiaries, predecessors, successors, partnerships, partners, and all related entities, as well as their officers, directors, employees, internal and outside counsel, agents, representatives, consultants, spokespeople, advisers, and any other person(s) acting under their control or on their behalf. 4. “CANDIDATE TRUMP” means Mr. Donald J. Trump, prior to January 20, 2017. 5. “PROPOSED MUSLIM BAN / EXTREME VETTING / TRAVEL BAN” means any and all proposals by or on behalf of Donald J. Trump involving any of the following: prohibitions or restrictions on entry into the United States by Muslims, enhanced vetting procedures for Muslims seeking to enter the United States, prohibitions or restrictions on entry into the United States by individuals from a list of countries to be identified, enhanced vetting procedures for individuals seeking to enter the United States from a list of countries to be identified, or the policy or policies reflected in Executive Order 13769 or Executive Order 13780. 2 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 13 of 22 Pg ID 1992 6. “EXECUTIVE ORDER 13769” refers to Executive Order No. 13769, entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which was issued on January 27, 2017, and published at 82 Fed. Reg. 8977-82. 7. “EXECUTIVE ORDER 13780” refers to Executive Order No. 13780, entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which was issued on March 6, 2017, and published at 82 Fed. Reg. 13209-19. 8. “IDENTIFY” means: a. when used with respect to a natural person, provide his or her full name, last known business address and telephone number, and last known business position or title and affiliation; b. when used with respect to a document or written communication, provide its date; the name and job title of the preparer(s), sender(s), and recipient(s) of the document or written communication; the name and job title of all persons to whom copies of the document or written communication were furnished; the subject matter of the document or written communication; and the present or last known location and custodian or custodians of the document or written communication; except that with respect to any document produced in response to Plaintiffs’ Document Requests, you need only 3 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 14 of 22 Pg ID 1993 identify such document in response to these interrogatories by listing its date, the name of the sender and recipient of the document, or the stamped production number if any; c. when used with respect to oral communications, provide the nature and substance of the communication, the date when and place where such oral communication occurred, each person who participated in the communication, and each person present when the communication occurred. 9. “COMMUNICATION” means any meeting, telephone conversation, facsimile, incoming or outgoing e-mail message, text message, faceto-face conversation, letter, or other written, oral, or electronic transmittal or exchange of information. 10. “MEETING” means any discussion or conversation involving two or more people, whether conducted in person, by telephone, or electronically, and whether held formally or informally, and whether or not scheduled in advance, including conferences, conference calls, online meetings, and videoconferences. 11. “DOCUMENT” means, without limitation, and whether or not they are publicly available, the originals, marked copies, drafts, regardless of origin, whether sent or received, whether made or used internally, and both sides thereof, of the following items, whether printed, recorded, taped, written by hand, or produced, reproduced, or stored by any mechanical or electronic process: 4 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 15 of 22 Pg ID 1994 agreements, brochures, communications, contracts, correspondence, diaries, electronic mail (“e-mail”) messages, letters, memoranda, manuals, handbooks, circulars, policy statements, minutes of meetings or conferences, notes, reports, summaries or records of personal conversations or interviews, summaries or records of telephone conversations, summaries or records of negotiations or investigations, computer printouts, computer tapes, computer programs, and any and all other electronically stored information (including available meta data), tangible things, writings, drawings, graphs, charts, photographs, sound recordings, images, spreadsheets, or other data or data compilations in whatever form they exist. The term “DOCUMENT” also means every copy of a document where such copy is not an identical duplicate of the original. Any copy of a document bearing any comment or notation that is not a part of the original text is to be considered a separate “DOCUMENT.” Any draft or other preliminary form of any document is also to be considered a separate “DOCUMENT.” 12. “PERSON” means any natural person, firm, corporation, partnership, proprietorship, cooperative, association, joint venture, organization, governmental body, committee, commission, group, or other entity, and any agent or employee of any of those individual entities. 13. “RELATE OR REFER” or “RELATING OR REFERRING” shall be construed broadly and shall mean, for example, pertaining to, containing, 5 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 16 of 22 Pg ID 1995 describing, reflecting, regarding, illustrating, mentioning, evidencing, embodying, constituting, supporting, discussing, or having any logical or factual connection whatsoever with the subject matter in question. 14. “YOU” and “YOUR” refer to the Defendants in this action, including all of their departments, agencies, employees and agents, and any other person or entity acting or purporting to act on their behalf, at their direction, or under their supervision. 15. All uses of the conjunctive herein include the disjunctive and vice versa. Words in the singular form include the plural form and vice versa. B. Instructions 1. Answer each Interrogatory set forth below separately and completely in writing under oath. Your response hereto is to be signed and verified by the person making it, and the objections signed by the attorney making them, as required by Federal Rule of Civil Procedure 33(b). 2. In responding to these Interrogatories, furnish all information that is available to you, including information that is available to you or your counsel, or in the possession, custody or control of you or any agent of yours. 3. Each Interrogatory shall be answered fully unless it is objected to in good faith, in which event the reasons for your objection shall be stated in detail. 6 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 17 of 22 Pg ID 1996 4. If an objection pertains to only a portion of an Interrogatory, or a word, phrase, or clause contained within it, you are required to state your objection to that portion only and to respond to the remainder of the Interrogatory, using your best efforts to do so. 5. If any Interrogatory cannot be responded to in full after exercising due diligence to secure the information, respond to the extent possible, specifying your inability to respond to the remainder and stating whatever information you have concerning the unanswered portions. 6. If any information is withheld by you under a claim of privilege, please set forth in your written response for each document or information for which a claim of privilege is made: (a) Principals. The name and title of the author(s), sender(s), addressee(s), and recipient(s) of the information. (b) Date. The date the document or information was created or transmitted. (c) Publications. The date and title of each person to whom the contents of the information has been disclosed by copy, exhibition, reading, summarization, or otherwise. (d) Descriptions. A description of the nature and subject matter of the information. 7 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 18 of 22 (e) Pg ID 1997 Privilege. A statement of the privilege(s) and the basis or bases upon which the privilege(s) is or are asserted. 7. These Interrogatories are continuing in nature. Therefore, you are obligated to provide, by way of supplemental responses and documents, whatever information may hereafter be obtained by you, or by anyone on your behalf, that will supplement this request. INTERROGATORIES 1. With respect to the “commission” referred to in Document Request No. 2, identify (i) each person who was a member of the commission or its staff, (ii) the dates and locations and attendees of any meetings of the commission or its staff, and (iii) for each individual identified your response, state whether, during the period covered by Document Request No. 2, such individual had a security clearance, whether the individual was an attorney, and whether the individual was formally retained to provide legal advice to Donald J. Trump or the Trump Campaign. RESPONSE: 8 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 19 of 22 Pg ID 1998 2. Identify each of the “several” Congressional employees or staff members that are referred to in Document Request No. 4, and for each such individual, state whether the individual entered into a nondisclosure agreement relating to their involvement in this issue, and identify the date on which the individual entered into the nondisclosure agreement. RESPONSE: 3. Identify all foreign-born individuals from Iran, Libya, Somalia, Sudan, Syria or Yemen, who are among the “hundreds of persons” referred to in Section 1(h) of Executive Order 13780 (i.e., “Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States.”). For each such individual, identify the date of conviction, the court and docket number of the relevant case, the crime(s) with which the individual was convicted, the date the individual was admitted to the United States, and the nation(s) of origin and citizenship of the individual. RESPONSE: 9 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 20 of 22 Pg ID 1999 4. Identify all “foreign nationals” involved in the post-September 11, 2001 “attacks” referred to at the end of the first paragraph of Section 1 of Executive Order 13769 (i.e., “these measures did not stop attacks by foreign nationals who were admitted to the United States”). For each such individual, identify the date and location of the “attack,” the date the individual was admitted to the United States, and the nation(s) of origin and citizenship of the individual. RESPONSE: 5. Identify every individual (i) whose nation of origin is Iran, Libya, Somalia, Sudan, Syria or Yemen, and (ii) who was involved in carrying out a terrorist attack in the United States involving at least one fatality since September 11, 2001. For each such individual, identify the date the individual was admitted to the United States. RESPONSE: 10 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 21 of 22 Dated: April 6, 2017 Pg ID 2000 Respectfully submitted, /s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Covington & Burling LLP One CityCenter 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 Email: jraofield@cov.com Counsel for Plaintiffs American Civil Liberties Union of Michigan, Arab American and Chaldean Council, Arab American Studies Association, Adeeb Saleh, Sofana Bella, Hilal Alkateeb and S.A., a minor through her Parent and Next Friend, Hilal Alkatteeb 11 2:17-cv-10310-VAR-SDD Doc # 110-1 Filed 06/02/17 Pg 22 of 22 Pg ID 2001 CERTIFICATE OF SERVICE On April 6, 2017, I caused to be served PLAINTIFFS’ FIRST SET OF INTERROGATORIES TO DEFENDANTS on all Parties to this action in the following manner: (1) On counsel for Plaintiffs by electronic mail (2) On counsel for Defendants by hand delivery and electronic mail to the following: Joshua S. Press (Joshua.Press@usdoj.gov) Briana Yuh (Briana.Yuh@usdoj.gov) Gisela Westwater (Gisela.Westwater@usdoj.gov) U.S. Department of Justice Civil Division, Office of Immigration Litigation 450 5th Street, NW Washington, DC 20530 /s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877)