Case 1:18-cv-01458-PLF Document 29 Filed 07/09/18 Page 1 of 7

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

Civil Action No. 1:18-cv-1458 (PLF)

v.
KIRSTJEN NIELSEN, et al.,
Defendants.
PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN
SUPPORT OF THEIR EMERGENCY MOTION FOR EXPEDITED DISCOVERY
The Government’s Opposition to Plaintiffs’ Emergency Motion for Expedited
Discovery (“Opposition” or “Opp.”) ignores the standards that courts in this District use in
determining whether to grant expedited discovery when motions for preliminary injunctions are
pending. The Government instead focuses on the timing of Plaintiffs’ requests and Defendants’
unspecified prejudice in complying with those requests. These arguments miss the mark.
Plaintiffs’ Expedited Discovery Requests—which the Government does not
dispute are limited in nature—were served one week after Plaintiffs’ Motion for a Preliminary
Injunction (the “PI Motion”). One week to prepare and serve such requests in a dynamic,
expedited litigation of this nature can hardly be considered unreasonable delay.

The

reasonableness of the expedited discovery is determined not by how long the discovery took to
craft, but rather by how long the Government has to answer it, and whether this time is
reasonable. Defendants do not explain why complying with the Expedited Discovery Requests
prior to the July 12, 2018 Preliminary Injunction Hearing (“PI Hearing”) is purportedly
“prejudicial.”

(Opp. at 2.)

Defendants’ conclusory statements should not be credited,

particularly because the information that Plaintiffs seek is readily accessible to Defendants.

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The Government also argues about the legal sufficiency of Plaintiffs’ PI Motion.
(Opp. at 3.) As a threshold matter, legal sufficiency of a motion for a preliminary injunction is
not an enumerated factor under the reasonableness standard for expedited discovery. Even if
legal sufficiency were properly considered on this motion, under the Notaro standard, for the
reasons set forth in the Plaintiffs’ Reply in Support of its PI Motion (the “PI Reply”), Plaintiffs
are likely to succeed on their PI Motion. The Ms. L class action pending in the Southern District
of California (Ms. L v. ICE, No. 18-cv-0428 (S.D. Cal.)) is no bar to obtaining a preliminary
injunction here, particularly when one of the Plaintiffs may not even be a member of the
preliminarily certified class in Ms. L. And as set forth in Plaintiffs’ forthcoming PI Reply, the
Court has jurisdiction over Plaintiffs’ claims here. Because Plaintiffs are entitled to show that
they can obtain a preliminary injunction here, expedited discovery from Defendants is
appropriate. The question before the Court is whether Plaintiffs should be granted expedited
discovery before the PI Hearing commences on July 12. The answer is unquestionably yes.
Plaintiffs respectfully request that the Court order Defendants to respond to the Expedited
Discovery Requests no later than 1:00 p.m. Eastern Standard Time on July 11, 2018.
I.

PLAINTIFFS’ DISCOVERY REQUESTS ARE REASONABLE
Plaintiffs’ Motion for Expedited Discovery (“Motion for Expedited Discovery”)

was filed on July 3, one week after Plaintiffs’ PI Motion and less than a week after the June 27,
2018 hearing before the Court on Plaintiffs’ Application for a Temporary Restraining Order. As
Defendants concede, Plaintiffs advised the Court and Defendants that limited discovery requests
pertaining to the specific facts alleged in the PI Motion would be forthcoming. (Opp. at 1 n.1.)
At the time the Motion for Expedited Discovery was filed, Defendants had one week to respond
to a narrow and targeted set of discovery requests. Given the nature of relief sought in these
proceedings—the reunification of Plaintiffs’ and their forcibly separated children—the timing of
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the Expedited Discovery Requests, and the time in which Plaintiffs seek to have Defendants
respond, are wholly reasonable.

In an expedited litigation of this nature where core

constitutional rights are at stake as a result of Defendants’ conduct, Plaintiffs should be permitted
to obtain expedited discovery.
Further, Defendants now claim—without any explanation—that if the Court were
to grant Plaintiffs’ Motion for Expedited Discovery, “it would be prejudicial” for Defendants to
comply prior to the PI Hearing “given existing demands on Defendants’ resources.” (Opp. at 2.)
Yet Defendants offer no details regarding what resources are implicated to respond to the core
questions of this action, such as the bases for separating Plaintiffs from their children and the
bases for continued separation. Accordingly, Plaintiffs’ limited discovery requests should be
presumed to be of minimal burden and Defendants should be compelled to respond to them. See
Attkisson v. Holder, 113 F. Supp. 3d 156, 165 (D.D.C. 2015) (“When the burden is low, such as
responding to only one or a few discovery requests, then this factor supports granting the motion
for expedited discovery.”).
II.

PLAINTIFFS ARE ENTITLED TO EXPEDITED DISCOVERY
As discussed above, the legal sufficiency of Plaintiffs’ PI Motion is not an

enumerated factor under the reasonableness test. See id. at 162. But in any case, as Plaintiffs
explain in the PI Motion and the PI Reply, Plaintiffs are entitled to preliminary relief and the
Court has jurisdiction over Plaintiffs’ claims. Contrary to Defendants’ arguments (Opp. at 3),
Ms. L does not serve as a basis for staying the pending action, let alone denying Plaintiffs’ PI
Motion.
The Government asserts that Plaintiff M.G.U. has some form of criminal history
of unknown vintage (M.G.U. estimates 19 years old), and thus may not fall within the definition
of the certified class in Ms. L. Ms. L. v. ICE, No. 18-cv-0428, 2018 WL 3129486, at *3 n.5 (S.D.
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Cal. June 26, 2018) (noting that the class “does not include parents with criminal history”). At a
minimum, discovery should proceed as to M.G.U, if not all Plaintiffs. As the Government in Ms.
L seeks relief from the deadlines imposed there, the uncertainty of the Ms. L action warrants
hearing Plaintiffs’ PI Motion. See Ex. 2 to Defs.’ Opp. to Pls.’ Motion for Prelim. Inj., Dkt. No.
27-2 at 1 (“Defendants thus seek . . . relief from the [Ms. L] Court’s deadlines.”), 8 (“HHS seeks
partial relief from the timelines in the [Ms. L] Court’s order . . . .”). Plaintiffs thus meet the
Notaro standard and are entitled to expedited discovery to help establish their claims at the PI
Hearing. Plaintiffs will be unduly prejudiced if denied discovery simply because Defendants
believe they will prevail at the PI Hearing.
III.

PLAINTIFFS’ DISCOVERY REQUESTS ARE RELEVANT
Defendants’ final argument is that the information sought by Plaintiffs “is not

necessary for resolution of the issue before the Court,” or “need not be provided in the form a
formal discovery response.” (Opp. at 3.) But the discovery sought is plainly relevant. The
Interrogatories regarding reunification timing and conditions precedent for reunification will
greatly assist Plaintiffs and the Court in understanding the scope of relief that should be ordered. 1
For example, if Defendants claim that reunification of all Plaintiffs is possible by July 14, the
Court could simply order that reunification occur by then. If Defendants claim that a DNA test
of each parent and child is required prior to returning Plaintiffs with their children, the Court
could order those to occur forthwith and for reunification to occur within a certain timeframe
upon confirmation of parentage. Plaintiffs and the Court should not be left in the dark regarding
basic questions such as those presented by the requested discovery.

1

None of the Interrogatories relate to the status of Plaintiffs’ children. Compare Opp. at 4
with Expedited Discovery Requests at 4–5.
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Regarding the purported bases for separation, Plaintiffs contend that Defendants
instituted a blanket policy of separating families as a form of deterrence and punishment.
Nothing in the Defendants’ Opposition to the PI Motion explains why M.G.U. was separated
from her children for an alleged non-violent and non-child related conviction that apparently
occurred approximately two decades ago.

And that conviction is not now preventing the

Government from stating that it is attempting to reunify M.G.U. with her children, thus further
belying the idea that this conviction provided a basis for taking M.G.U.’s children from her.
Defendants should be required to explain whether the Government’s family separation policy
was used in M.G.U.’s case, and how that policy applies in her case.
Nor does Defendants’ Opposition to the PI Motion explain why E.F. and A.P.F.
remain separated from their children following their prosecution for misdemeanor immigration
violations—violations for which they received no period of incarceration beyond time served.
Having this information before the PI Hearing will allow Plaintiffs to better prepare to prosecute
their constitutional claims. Receiving “further update[s]” at the PI Hearing (Opp. at 4) is
extremely prejudicial to Plaintiffs’ capacity to prepare for the PI Hearing, and is inconsistent
with civil litigation practice in the federal courts. See generally Standley v. Edmonds-Leach, 783
F.3d 1276, 1283 (D.C. Cir. 2015) (“Automatic disclosure [under Rule 26] was adopted to end
two evils that had threatened civil litigation: expensive and time-consuming pretrial discovery
techniques and trial-by-ambush.”). Plaintiffs are entitled to Defendants’ bases for separation
before the upcoming hearing.
As for the document requests, the documents sought are readily accessible to the
Government and can be produced quickly. Indeed, the Government does not dispute this. The

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Government should be ordered to produce the DHS and HHS files of Plaintiffs and their
children.
Finally, the requests for admission in the Expedited Discovery Requests (the
“RFAs”), were designed precisely so the Court would not be presented with unnecessary
evidentiary objections and evidentiary-related arguments at the PI Hearing regarding, among
other things, whether statements by certain government officials were made or whether certain
documents are authentic government documents. If Defendants admit (or deny) these RFAs
prior to the hearing, then the parties can narrow the issues to be litigated before the Court at the
hearing. 2
CONCLUSION
For the reasons set forth above, Plaintiffs respectfully request that the Court order
Defendants to respond to the Expedited Discovery Requests no later than 1 PM ET on July 11,
2018.
Dated: Washington, D.C.
July 9, 2018
TEXAS RIOGRANDE LEGAL AID, INC.
/s/ Jerome Wesevich
Jerome Wesevich (D.D.C. Bar No. TX0125)
Amanda Chisholm (Texas Bar No. 24040684)
Peter McGraw (Texas Bar No. 24081036)
1331 Texas Avenue
El Paso, Texas 79901
(915) 241-0534
jwesevich@trla.org
achisholm@trla.org
pmcgraw@trla.org

2

Alternatively, Defendants could easily stipulate to the authenticity of these statements
and documents. But in either case, disclosure of Defendants’ positions in advance of the
PI Hearing is reasonable.
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PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
David J. Ball (DC Bar No. 460055)
2001 K Street, NW
Washington, DC 20006-1047
(202) 223-7352
dball@paulweiss.com
Steven C. Herzog (admitted pro hac vice)
Meredith A. Arfa (admitted pro hac vice)
Katherine Kelly Fell (admitted pro hac vice)
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
sherzog@paulweiss.com
marfa@paulweiss.com
kfell@paulweiss.com
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
Pursuant to LCvR 5.3, I hereby certify that, on July 9, 2018, I caused to be
electronically filed a copy of the foregoing Plaintiffs’ Memorandum of Points of Law and
Authority in Support of Its Emergency Motion for Expedited Discovery to be served on all
counsel of record using the Court’s CM/ECF system.
/s/ Jerome Wesevich
Jerome Wesevich (D.D.C. Bar No. TX0125)

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