Case 1:18-cv-01458-PLF Document 28 Filed 07/06/18 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
M.G.U, et al.

)
)
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Plaintiff,
)
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v.
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Kirstjen Nielsen, et al.,
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Defendants.
)
)
_________________________________________ )

No. 1:18-cv-01458 (PLF)

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION
FOR EXPEDITED DISCOVERY
On July 3, 2018, almost two weeks after filing this action, Plaintiffs have filed what they
style as an “emergency” motion for expedited discovery that they claim is necessary to “develop
the evidentiary record to support [their] preliminary injunction application” which is scheduled
for a hearing at 10:30 a.m. on July 12, 2018. (Mot. at 1) Plaintiffs, however, cannot credibly
contend that the discovery is necessary for their preliminary injunction motion since Plaintiffs
filed their motion for preliminary injunction over one week ago, on June 26, 2018, without an
accompanying motion for discovery. 1 As discussed more fully below, moreover, Defendants
raise threshold legal arguments in opposition to the motion for preliminary injunction that are
purely legal in nature and do not require for their resolution the discovery that Plaintiff is
requesting.

Plaintiffs’ referenced the possibility of a motion for “limited, expedited” discovery in a
footnote in their motion for preliminary injunction. (PI Mot. at 3 n.2) In that same footnote,
however, they contend that the allegations on which their preliminary injunction motion is based
“are readily available from the Government’s own recent records and public statements.” (Id.)
Accordingly, Plaintiffs’ own contentions undermine the need for discovery, either “expedited” or
otherwise.
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Nor can Plaintiffs credibly style their motion as an “emergency” given that Plaintiffs had
several opportunities to claim the need for discovery and seek to incorporate any proposed
discovery into the preliminary injunction motion schedule but failed to do so. For instance, on
June 26, 2018, the Court ordered the parties to confer about a schedule and propose “dates and
times for a hearing the week of July 9, 2018 or July 16, 2018.” That same day, the parties
jointly proposed a schedule in which Defendants’ opposition would be due Friday, July 6, 2018,
Plaintiffs’ reply would be due Monday, July 9, 2018, and a hearing would be held on Thursday,
July 12, 2018, which the Court subsequently adopted. Had Plaintiffs’ counsel believed discovery
was necessary, the time to raise the issue was when the schedule to govern the preliminary
injunction proceeding was proposed. Plaintiffs also failed to raise the issue at the hearing on
June 27, 2018. Now, the timing of the motion for discovery is such that, were the Court to grant
the motion, it would not be possible for Defendants to comply before Plaintiffs’ reply
memorandum is due on July 9, 2018, and it would be prejudicial to Defendants to order them to
comply prior to the July 12, 2018 hearing given existing demands on Defendants’ resources.
ARGUMENT
Plaintiffs have filed two distinct motions with the Court seeking injunctive relief. The
first motion was a motion for temporary restraining order that was addressed to a limited issue;
specifically, to request that the Court order Defendants to provide them with certain information
regarding their children who are currently in the custody of the U.S. Department of Health and
Human Service, Office of Refugee Resettlement (“ORR”), as well as regular communication
with their children. The Court heard that motion on June 27, 2018, and has held it in abeyance
pending further updates from the parties as to whether the information Defendants agreed to
provide at the hearing has been forthcoming.

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The second motion is the motion for preliminary injunction which challenges the
Plaintiffs’ separation from their children. Plaintiffs’ request for discovery is directed toward
that motion, which is scheduled for a hearing on July 12, 2018. Plaintiffs contend that the
requested discovery is necessary to develop an evidentiary record for the Court to resolve the
preliminary injunction. This argument fails for two reasons.
First, as set forth more fully in Defendants’ opposition to the motion for preliminary
injunction, Defendants raise several threshold legal arguments in response to Plaintiffs’ motion
for preliminary injunction that do not require the requested discovery for their resolution.
Defendants argue, as a threshold matter, that a separate lawsuit seeking injunctive relief in this
district is inappropriate because Plaintiffs are class members in Ms. L., et al. v. ICE, et al., Case
No. 18-cv-0428 (S.D. Cal.) and, as such, already are beneficiaries of the preliminary injunction
order in that case. See, e.g., McNeil v. Guthrie, 945 F.2d 1163, 1165-1166 (10th Cir. 1991)
(“Individual suits for injunctive and equitable relief from alleged unconstitutional prison
conditions cannot be brought where there is an existing class action. To permit them would allow
interference with the ongoing class action.”) Defendants also argue as a threshold matter that
this Court lacks jurisdiction over Plaintiffs claims, and over any request for the release of
Plaintiffs or their children, none of whom are in custody within the jurisdiction of this Court.
None of the discovery requested by Plaintiffs is addressed to these issues.
Second, much, if not all, of the information requested either is not necessary for the
resolution of the issue before the Court on the motion for preliminary injunction, or need not be
provided in the form of a formal discovery response. For instance, most of the interrogatories
seek information as to when Defendants anticipate reuniting each Plaintiff with his or her
children, which is an issue previously raised in Plaintiffs’ motion for temporary restraining order

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(and already was addressed at the June 27, 2018 hearing on that motion). Moreover, to the
extent there have been any further developments on that issue since the prior hearing, they are set
forth in Defendants’ response to the motion for preliminary injunction, and defense counsel can
further update the Court at the preliminary injunction hearing.
Another interrogatory (and at least two of the four document requests 2) seek information
about the status of Plaintiffs’ children, which is the subject of the motion for temporary
restraining order and not the preliminary injunction motion. The remaining interrogatories seek
the basis for separating each Plaintiff and his or her children, and the government already has
stated its position on that issue in its response to the preliminary injunction motion. The
admission requests largely address information that already is publicly available such as, for
instance, requests to admit that certain government officials made statements attributed to them
by news organizations. For purposes of the preliminary injunction motion, the Court can weigh
the evidentiary value of the matters that are the subject of the admission requests without the
need for formal responses to those requests.

Of the two remaining document requests, one seeks all documents that Defendants plan
to introduce into evidence at the preliminary injunction hearing. At present, Defendants state
that there are no documents responsive to that request except to the extent attached to
Defendants’ opposition to the motion for preliminary injunction.
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CONCLUSION
For the foregoing reasons, the motion for expedited discovery should be denied.
DATE: July 6, 2018

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director

By: Sarah B Fabian
SARAH B. FABIAN
Senior Litigation Counsel
U.S. Department of Justice
Office of Immigration Litigation
District Court Section
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: (202) 532-4824
Fax: (202) 616-8962
E-mail: Sarah.B.Fabian@usdoj.gov
and
JESSIE K. LIU, D.C. Bar #472845
United States Attorney
DANIEL F. VAN HORN
D.C. BAR # 924092
Civil Chief
JEREMY S. SIMON, D.C. BAR #447956
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
(202) 252-2528
Jeremy.simon@usdoj.gov
Counsel for Respondents

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CERTIFICATE OF SERVICE

I hereby certify that on July 6, 2018, I served the foregoing pleading on all counsel of
record by means of the District Clerk’s CM/ECF electronic filing system.

/s/ Sarah B. Fabian
SARAH B. FABIAN
U.S. Department of Justice
District Court Section
Office of Immigration Litigation
Attorney for Respondents

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