Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 1 of 14 The Honorable James L. Robart 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JOHN DOE, et al., Plaintiffs, 11 12 13 v. DONALD TRUMP, et al., Defendants. 14 15 16 JEWISH FAMILY SERVICE OF SEATTLE, et al., Plaintiffs, 17 18 19 20 21 Civil Action No. 2:17-cv-00178JLR v. DONALD TRUMP, et al., Defendants. Civil Action No. 2:17-cv-01707JLR DEFENDANTS’ RESPONSE IN OPPOSITION TO JEWISH FAMILY SERVICE PLAINTIFFS’ CROSSMOTION FOR LIMITED EXPEDITED DISCOVERY ON COMPLIANCE WITH PRELIMINARY INJUNCTION (RELATING TO JEWISH FAMILY SERVICE) 22 23 24 25 26 DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 2 of 14 INTRODUCTION 1 2 On January 16, 2018, Defendants filed a Motion to Stay District Court Proceedings 3 Pending Disposition of Cross-Appeals, ECF No. 110. That motion is fully briefed and awaiting 4 decision. One month later, the Jewish Family Service (“JFS”) Plaintiffs filed a “Cross-Motion” 5 for Limited Expedited Discovery on Compliance with Preliminary Injunction, ECF No. 121 6 (“Cross-Motion”).1 In that cross-motion, JFS Plaintiffs ask the Court to authorize expedited 7 discovery concerning Defendants’ compliance with the Court’s December 23, 2017, preliminary 8 injunction Order, even if the Court decides to otherwise stay proceedings pending a decision from 9 the Ninth Circuit. See Cross-Motion at 2. 10 The Court should deny JFS Plaintiffs’ cross-motion for several reasons. First, while JFS 11 Plaintiffs raise the same speculative concerns about Defendants’ compliance that they previously 12 asserted in their Opposition to Defendants’ Motion to Stay Proceedings Pending Disposition of 13 Cross-Appeals, ECF No. 115 (“Pls.’ Stay Motion Opp’n”), they do not allege a single, specific 14 example of noncompliance, let alone proffer any evidence of the sort. JFS Plaintiffs offer no 15 authority that would support expedited discovery under the circumstances of this case, and there 16 is no reason for this Court to allow them to go on a fishing expedition. See Rivera v. NIBCO, 17 Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) (alteration in original) (“District courts need not 18 condone the use of discovery to engage in ‘fishing expedition[s].’”). 19 Second, JFS Plaintiffs inappropriately request discovery well beyond the scope of this 20 lawsuit. JFS Plaintiffs’ Complaint in this action challenges aspects of the October 23, 2017, 21 Memorandum to the President (“Agency Memo” or “Joint Memorandum”). As this Court has 22 already acknowledged, their challenge is narrow in scope. See Doe v. Trump, No. C17-0178JLR, 23 2017 WL 6551491, at *15 (W.D. Wash. Dec. 23, 2017) (“Plaintiffs do not seek to enjoin the 24 agencies’ efforts to implement screening mechanisms for FTJ refugees that are similar to or 25 26 1 It is unclear why JFS Plaintiffs styled their submission as a cross-motion, as the relief they seek is extraordinary and different in kind from the relief Defendants seek in their pending motion to stay. DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 1 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 3 of 14 1 aligned with the processes employed for principal refugees. Plaintiffs do not seek to enjoin the 2 agencies from conducting their 90–day ‘detailed threat analysis and review’ of the SAO countries 3 to determine what additional safeguards the agencies believe are necessary with respect to the 4 admission of refugees from those countries. . . . Rather . . . they seek an order preliminarily 5 enjoining those provisions of the Agency Memo that (1) prohibit the admission of refugees from 6 SAO countries and impede the processing of their refugee applications for 90–days, and (2) 7 indefinitely prohibit the admission of FTJ refugees and indefinitely suspend the processing of 8 their refugee applications.”). Yet JFS Plaintiffs now request discovery concerning the 9 Government’s actions following the 90-day Security Advisory Opinion (“SAO”) review period 10 and the following-to-join implementation period, as well as an unredacted version of the January 11 29, 2018, memorandum from the Secretary of Homeland Security to the Director of U.S. 12 Citizenship and Immigration Services (“USCIS”) that sets forth vetting enhancements and 13 recommendations that have never been challenged. JFS Plaintiffs have not challenged these 14 actions in their Complaint, and their attempt to expand the scope of their pleading through 15 discovery is plainly improper. 16 Finally, JFS Plaintiffs’ discovery demands reinforce why a stay of proceedings pending 17 appeal is appropriate here. JFS Plaintiffs request documents “relating to” various policies and 18 actions taken on a worldwide scale. Given the expansive nature of JFS Plaintiffs’ requests and 19 their continued speculation regarding Defendants’ compliance despite Defendants’ repeated 20 reassurances, any discovery would likely lead to extensive motion practice and would waste the 21 Court’s and parties’ resources. 22 23 JFS Plaintiffs’ request for expedited discovery is unwarranted and inappropriate. The Court should deny their cross-motion. 24 25 26 DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 2 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 4 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. ARGUMENT JFS Plaintiffs’ Unadorned Speculation That Defendants Might Be out of Compliance with the Preliminary Injunction Does Not Warrant Discovery, Expedited or Otherwise While maintaining their erroneous view that the parties should have participated in a Rule 26(f) conference by now,2 JFS Plaintiffs propose to take expedited discovery to probe the Government’s compliance with the Court’s preliminary injunction Order. A party seeking expedited discovery “must show that ‘the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.’” Exari Sys. Inc. v. Amazon Corp., No. C15-356 MJP, 2015 WL 12025325, at *1 (W.D. Wash. May 4, 2015) (citation omitted). In evaluating such a request, courts consider “(1) whether a preliminary injunction is pending; (2) the breadth of the discovery request; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in advance of the typical discovery process the request was made.’” Id. (citation omitted). JFS Plaintiffs make no attempt to show that these factors weigh in favor of allowing expedited discovery here, and for good reason: none do. As to the first factor, JFS Plaintiffs have already secured a preliminary injunction, so they have no need to build a record to support a claim for emergency relief. The challenged provisions of the Joint Memorandum are enjoined nationwide, and have expired by their own terms in any event. As to the second and fourth factors, and as discussed in Part III, infra, the proposed discovery is extraordinarily broad and would 2 Defendants discuss JFS Plaintiffs’ erroneous understanding of Rule 26(f) in their most recent submission, see Defs.’ Reply in Supp. of Mot. to Stay District Court Proceedings Pending Disposition of Cross-Appeals at 5 n.3, ECF No. 120 (“Defs.’ Stay Motion Reply”). The Court has never ordered the parties to participate in such a conference and has signaled that discovery should not proceed at this juncture. Moreover, this case is fundamentally an Administrative Procedure Act (“APA”) record-review case, as the Court implicitly recognized when it declined to consider Plaintiffs’ constitutional claims at the preliminary injunction stage. APA record-review cases are exempt from the requirements of Rule 26(f) and, generally, from discovery. See Fed. R. Civ. P. 26(f)(1), 26(a)(1)(B)(i). Were district court litigation to proceed, Defendants would be entitled (and indeed, obligated) to move this Court to dismiss this action on grounds of mootness. And jurisdictional issues aside, Defendants would move to dismiss the constitutional claims under Rule 12(b)(6), as these claims are meritless. DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 3 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 5 of 14 1 impose a sweeping burden on Defendants and this Court. As for the fifth factor, even the JFS 2 Plaintiffs acknowledge this should be an APA record-review case, see Pls.’ Stay Motion Opp’n 3 at 3 (“Plaintiffs are proposing only that this litigation move forward in a limited manner consistent 4 with an APA case”), and because their Complaint challenges a now-expired policy and is thus 5 moot, discovery would not typically proceed at all, much less on an expedited basis. 6 The third factor, concerning JFS Plaintiffs’ purpose for seeking expedited discovery, 7 further highlights why discovery is inappropriate here, as JFS Plaintiffs plainly seek to go on a 8 fishing expedition. JFS Plaintiffs provide no specific allegation that Defendants are out of 9 compliance with this Court’s Order, let alone proffer any evidence of such noncompliance. And 10 Defendants have repeatedly assured this Court and the Plaintiffs that they are in compliance. JFS 11 Plaintiffs posit that they “cannot simply accept Defendants’ assertions of compliance without the 12 opportunity to understand what actions are being taken.” Cross-Motion at 4 n.5. Yet parties in 13 litigation are not normally entitled to investigate their opponents’ compliance with court orders. 14 This is particularly so where the opponent is a government agency or official, as a “well 15 established principle of federal law” recognizes that “administrative agencies are entitled to a 16 presumption that they ‘act properly and according to law,’” Kohli v. Gonzales, 473 F.3d 1061, 17 1068 (9th Cir. 2007) (quoting FCC v. Schreiber, 381 U.S. 279, 296 (1965)); see also Angov v. 18 Lynch, 788 F.3d 893, 905 (9th Cir. 2013) (collecting cases showing that the “presumption of 19 regularity has been applied far and wide to many functions performed by government officials”). 20 JFS Plaintiffs provide no case law to support a request for discovery based on mere 21 speculation without alleging that Defendants are out of compliance with the preliminary 22 injunction. They cite California Dep’t of Social Services v. Leavitt, 523 F.3d 1025 (9th Cir. 2008), 23 but the plaintiff there came forward with significant evidence of potential noncompliance, 24 including a report of twelve possible violations, an admission from the defendant that it did not 25 maintain data that should have been available if defendant were in compliance, and evidence that 26 the defendant had a “fundamental misunderstanding” of the district court’s injunction. Id. at 1035. DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 4 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 6 of 14 1 JFS Plaintiffs offer nothing of the sort here; instead, they rely on conjecture, and do not even 2 allege that Defendants are out of compliance. JFS Plaintiffs also cite Nat’l Law Center on 3 Homelessness & Poverty v. U.S. Dep’t of Veterans Affairs, 842 F. Supp. 2d 127 (D.D.C. 2012), 4 but that case is plainly inapposite. There, the district court concluded that the plaintiffs could take 5 some discovery to oppose the defendants’ motion to vacate part of a longstanding injunction. 6 Defendants bore the burden to establish changed circumstances under Federal Rule of Civil 7 Procedure 60(b)(5), and plaintiffs and the court could not “test defendants’ allegations[] absent 8 facts.” Id. at 131. Here, of course, Defendants have not moved to modify or dissolve the 9 preliminary injunction; they have simply asked the Court to stay proceedings pending appellate 10 review. 11 JFS Plaintiffs again state that Defendants “effectively conceded that they were not 12 complying with the injunction in their prior motion for a stay.” Cross-Motion at 3; see also Pls.’ 13 Stay Motion Opp’n at 6. That is false. Defendants represented in their Emergency Motion for 14 Stay of Preliminary Injunction Pending Appeal, ECF No. 95, that they did “not understand the 15 preliminary injunction to require affirmative action to undo any of the steps that were taken to 16 implement the Joint Memorandum prior to December 23,” including scheduling and resource- 17 allocation decisions for upcoming circuit rides. After the Court offered some guidance in its Order 18 denying that stay motion, Defendants submitted a more fulsome explanation of their plans for 19 second- and third-quarter circuit rides in their Notice of Compliance with Preliminary Injunction, 20 ECF No. 114 (“Notice of Compliance”). Defendants’ transparency regarding specific issues in 21 implementing the Court’s preliminary injunction in no way means that Defendants “effectively 22 conceded” noncompliance. It reflects quite the opposite—Defendants’ good-faith efforts to 23 comply with this Court’s injunction. At no point has the Court indicated that Defendants’ circuit 24 ride plans are improper; nor, for that matter, have JFS Plaintiffs argued that those plans are 25 incompatible with the preliminary injunction. 26 DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 5 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 7 of 14 1 Defendants’ good-faith efforts are spelled out in their Notice of Compliance and their Stay 2 Motion Reply, and JFS Plaintiffs have never explained why those efforts are inadequate. And 3 though JFS Plaintiffs cross-reference arguments from their opposition to Defendants’ pending 4 stay motion, they do not even acknowledge that Defendants have already addressed those points. 5 See Defs.’ Stay Motion Reply at 3-6.3 6 The Court has never ordered Defendants to provide any reports on injunction compliance 7 or developments in the U.S. Refugee Admissions Program (“USRAP”). Rather, Defendants have 8 voluntarily submitted such information in good faith and in the interest of transparency. 9 Defendants have also pledged to honor all commitments that they have made, and they codified 10 that pledge in the January 29, 2018, memorandum from the Secretary of Homeland Security 11 (“Secretary’s Memorandum”). See ECF No. 122 at 16 n.2. Despite that pledge, JFS Plaintiffs 12 surmise that the “additional guidelines and training” referenced in the Secretary’s Memorandum 13 “could simply be a continuation of the suspension prohibited by the preliminary injunction.” 14 Cross-Motion at 3. JFS Plaintiffs have no basis to draw such a conclusion: as discussed in Part 15 II, infra, the Secretary’s Memorandum does not impose any kind of suspension on the processing 16 or admissions of particular refugees or groups of refugees. JFS Plaintiffs should not be permitted 17 to undertake burdensome compliance discovery on the basis of their misguided speculation about 18 Defendants’ intentions—speculation that is belied by the facts (and agency declarations) that 19 Defendants have continually, affirmatively presented to the Court. 20 21 22 23 24 25 26 3 JFS Plaintiffs complain that “Defendants’ additional notice filed on January 31 . . . failed to include any concrete information about what Defendants are now doing.” Cross-Motion at 3. But the purpose of that January 31 notice was to apprise the Court of the results of the 90-day SAO review period, not to report on Defendants’ further efforts to comply with the preliminary injunction. DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 6 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 8 of 14 1 2 3 4 5 6 7 II. Because JFS Plaintiffs’ Complaint Challenges Only the Joint Memorandum, Their Request for Discovery Concerning Other Refugee-Related Policy Actions or Developments Is Improper JFS Plaintiffs’ cross-motion should be denied not only because it asks for unwarranted discovery concerning Defendants’ implementation of the Joint Memorandum and subsequent compliance with the preliminary injunction but also because it seeks discovery into “actions taken by Defendants as a result of the end of the 90-day review for SAO countries and as a result of the implementation of the additional vetting procedures for follow-to-join refugees.” Cross-Motion 8 at 5. JFS Plaintiffs specifically “request that the Court order production of the unredacted version 9 of the January 29, 2018 memorandum.” Id. 10 11 12 Yet Defendants had no obligation to produce the Secretary’s Memorandum at all, given that (1) JFS Plaintiffs’ operative Complaint challenges only the now-expired SAO and followingto-join provisions of the Joint Memorandum and (2) the Court has ordered no discovery in this 13 case. In an effort to cooperate and to avoid further motions practice before this Court, Defendants 14 produced the Secretary’s Memorandum with one portion of one sentence redacted pursuant to the 15 law-enforcement privilege. As Defendants explained in a February 13, 2018, e-mail to JFS 16 Plaintiffs’ counsel, the redacted information “relates to USCIS’s information sharing and 17 background check procedures that historically have applied within the context of the [USRAP] 18 but that are not public knowledge,” and disclosure could “reveal sensitive case-handling 19 20 21 22 procedures, which may lead some nefarious actors to conceal information that would otherwise reveal a connection to an issue of national security.” Cross-Motion Exhibit E. The Secretary’s Memorandum is not an extension of the challenged policy, but rather supersedes the policy announced in the Joint Memorandum that expired by its own terms. The 23 Secretary’s Memorandum sets forth a series of requirements and principles that will govern the 24 administration of the USRAP going forward. The Court expressly recognized in its Order of 25 December 23, 2017, that the preliminary injunction “does not apply to Defendants’ efforts to 26 implement ‘additional security measures’ or align ‘the screening mechanisms for [following-toDEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 7 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 9 of 14 1 join] refugees’ with ‘processes employed for principal refugees,’” and further “does not apply to 2 Defendants’ efforts to conduct a detailed threat assessment for each SAO country,” Doe, 2017 3 WL 6551491, at *26. 4 enhancements to the USRAP as set forth in the Joint Memorandum, with the caveat that 5 Defendants were not allowed to pause processing of SAO or following-to-join refugees with a 6 bona fide relationship to a U.S. person or entity while that effort was underway. The Court allowed Defendants to carry out the evaluations and 7 Unlike the Joint Memorandum, the Secretary’s Memorandum does not pause processing 8 for any particular refugee applicants or groups. Instead, it (1) implements additional screening 9 and vetting actions for certain nationals of high-risk countries, (2) calls for the USRAP to be 10 administered in a risk-based manner, and (3) suggests that the SAO list and selection criteria 11 should be periodically reviewed and updated. ECF No. 122 at 17. If JFS Plaintiffs wish to 12 challenge these new policies that postdate their Complaint, they must file a motion to amend their 13 Complaint or bring a new lawsuit. Cf. Washington v. Trump, No. C17-0141JLR, 2017 WL 14 1045950, at *4 (W.D. Wash. Mar. 16, 2017) (“The court cannot conclude that the policy changes 15 in EO2 are minor or that EO2 represents nothing more than a ‘renumbering’ of policies that the 16 court has already enjoined. Accordingly, the court declines to apply its preliminary injunction 17 concerning EO1 to provisions contained in EO2.”). The Court should not endorse JFS Plaintiffs’ 18 attempted end-run around such elementary requirements of civil procedure by characterizing as 19 “compliance-related” discovery requests that correspond to purely hypothetical, unfiled claims. 20 For that same reason, the Court need not and should not address the contours of the 21 law-enforcement privilege, the type of showing the Government would have to make in support 22 of its privilege claim, or whether the risk of disclosure outweighs litigation needs in this case. 23 JFS Plaintiffs assert that the “need for Plaintiffs to understand Defendants’ compliance with the 24 injunction certainly outweighs Defendants’ speculative assertion that disclosure of this limited 25 information ‘may lead some nefarious actors to conceal information,’” Cross-Motion at 6, but that 26 is comparing apples and oranges. The Secretary’s Memorandum (and, in particular, the redacted DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 8 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 10 of 14 1 clause, which undersigned counsel can proffer is just eleven words long) has nothing to do with 2 Defendants’ compliance with the injunction entered against now-expired provisions of the Joint 3 Memorandum. If JFS Plaintiffs bring suit challenging some aspect of the new USRAP guidance, 4 the Court can determine at a procedurally appropriate juncture (and after receiving full briefing 5 on the subject) whether disclosure of the redacted text is necessary, as well as the terms of any 6 appropriate protective order. The Court should not undertake to resolve an unsettled question of 7 circuit law concerning the nature and extent of the law-enforcement privilege—a question that 8 has significant national-security and separation-of-powers implications—in the service of 9 resolving a dispute that is not even properly before the Court.4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 III. JFS Plaintiffs’ Requested Discovery is Burdensome, Unrealistic, and Reinforces the Need for a Stay of Proceedings Finally, the Court should not entertain JFS Plaintiffs’ unsubstantiated request for expedited discovery because JFS Plaintiffs’ document requests are exceedingly vague and apparently quite broad in scope. That overbreadth alone is reason enough to deny their request for expedited discovery. See ELargo Holdings, LLC v. Doe, 318 F.R.D. 58, 61 (M.D. La. 2016) (“The party seeking expedited discovery has the burden of establishing good cause and the scope of the requests must be narrowly tailored to the necessary information they seek.”); ForceX, Inc. v. Tech. Fusion, LLC, No. 4:11cv88, 2011 WL 2560110, at *5 n.3 (E.D. Va. June 27, 2011) (denying motion for expedited discovery because requests were “not narrowly tailored to obtain relevant information necessary for expedited discovery purposes”); Phila. Newspapers, Inc. v. Gannett Satellite Info. Network, Inc., No. CIV. A. 98-CV-2782, 1998 WL 404820 (E.D. Pa. July 15, 1998) (noting that “courts generally deny motions for expedited discovery when the movant’s discovery requests are overly broad”). 24 25 26 4 Should the Court disagree with Defendants’ analysis here, Defendants respectfully request the opportunity to submit full briefing on the application of the law-enforcement privilege, along with, if necessary, a declaration from an appropriate agency official. DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 9 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 11 of 14 1 Each of JFS Plaintiffs’ document requests seeks materials concerning the Government’s 2 implementation of worldwide policies or practices. Only the second document request—“relating 3 to actions taken by Defendants to comply with this Court’s preliminary injunction dated 4 December 23, 2017 and order denying Defendants’ motion for stay pending appeal”—genuinely 5 concerns compliance. The remaining requests reflect attempts by JFS Plaintiffs to build out 6 possible claims and merits arguments under the guise of compliance-related discovery. 7 Moreover, each request seeks documents “relating to” policies or practices. Cf. James 8 Madison Project v. CIA, No. 1:08CV1323(GBL), 2009 WL 2777961, at *4 (E.D. Va. Aug. 31, 9 2009) (“A request for all documents ‘relating to’ a subject is usually subject to criticism as 10 overbroad since life, like law, is a ‘seamless web,’ and all documents ‘relate’ to others in some 11 remote fashion.” (citation omitted)). Given that Defendants’ efforts at transparency to date have 12 only “rais[ed] a host of additional questions” for JFS Plaintiffs, Cross-Motion at 3, there is no 13 reason to think they would stop at these document requests or finds any response sufficient. As a 14 practical matter, Defendants expect that discovery would quickly devolve into further motion 15 practice before this Court, as disagreement between the parties over the scope of JFS Plaintiffs’ 16 requests and Defendants’ anticipated objections and privilege assertions seems almost inevitable. 17 And that would just be the beginning, as JFS Plaintiffs have already signaled additional 18 discovery (and thus, inevitably, motion practice) concerning depositions. See, e.g., Sargent v. 19 City of Seattle, No. C12-1232 TSZ, 2013 WL 1898213, at *2 (W.D. Wash. May 7, 2013) (“As a 20 general rule, high-ranking government officials are not subject to deposition absent extraordinary 21 circumstances.”); Warren v. Washington, No. C11-5686 BHS/KLS, 2012 WL 2190788, at *1 22 (W.D. Wash. June 14, 2012) (same). 23 demonstrates that a stay pending resolution of appeals is eminently appropriate here, as JFS 24 Plaintiffs envision imposing significant burdens on both the Court’s and Defendants’ resources. 25 This Court reached a similar conclusion in Washington v. Trump, No. C17-0141JLR, 2017 WL 26 2172020, at *4 (W.D. Wash. May 17, 2017), where, in staying district court proceedings pending JFS Plaintiffs’ requested discovery thus further DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 10 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 12 of 14 1 an appeal in the related Hawaii v. Trump litigation, this Court observed that “Plaintiffs’ 2 anticipated discovery [would] likely lead to multiple discovery disputes” and that the better course 3 was to stay the matter “while the Ninth Circuit addresses issues that may inform the 4 appropriateness, scope, and necessity of that discovery.” So too here, where the Ninth Circuit is 5 poised to determine whether this case should be dismissed on mootness grounds (and where JFS 6 Plaintiffs themselves acknowledge that any jurisdictional discovery that they might request will 7 “largely overlap with the compliance discovery proposed in [their] motion,” Cross-Motion at 2). 8 Even if this Court allows some discovery (and it should not), the Court should reject JFS 9 Plaintiffs’ proposed two-week timeframe for Defendants’ responses to JFS Plaintiffs’ requests for 10 production. For the reasons outlined above, it will take Defendants considerable time to study the 11 requests, draft appropriate objections, identify relevant custodians, design and conduct searches, 12 review a potentially voluminous array of records for responsiveness, and address 13 discovery-related issues. Such tasks will take far longer than JFS Plaintiffs’ two-week timeframe. 14 The Federal Rules of Civil Procedure contemplate that parties will generally serve 15 responses to document requests within 30 days and may specify in those responses a reasonable 16 timeframe for production. See Fed. R. Civ. P. 34(b)(2). Where, as here, the party served with a 17 request for production is an Executive agency, greater flexibility is warranted. Thus, in the event 18 that the Court deems any discovery appropriate at this juncture, the Court should allow Defendants 19 a full 30 days to prepare their objections and initial responses to JFS Plaintiffs’ document requests, 20 and should further allow Defendants to produce any responsive, non-privileged records on a 21 reasonable rolling basis thereafter if necessary. CONCLUSION 22 23 The Court should deny JFS Plaintiffs’ Cross-Motion for Limited Expedited Discovery. 24 25 26 DATED: February 26, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 11 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 13 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 JENNIFER D. RICKETTS Director, Federal Programs Branch JOHN R. TYLER Assistant Director, Federal Programs Branch /s/ Joseph C. Dugan MICHELLE R. BENNETT DANIEL SCHWEI KEVIN SNELL JOSEPH C. DUGAN Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 514-3259 Fax: (202) 616-8470 Email: joseph.dugan@usdoj.gov Attorneys for Defendants 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 12 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 123 Filed 02/26/18 Page 14 of 14 CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 I certify that on February 26, 2018, a copy of the foregoing document was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. DATED this 26th day of February, 2018. /s/ Joseph C. Dugan JOSEPH C. DUGAN 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS.’ RESP. TO CROSS-MOT. FOR LIMITED EXPEDITED DISC. - 13 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259