Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 1 of 21 1 The Honorable Robert S. Lasnik 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 12 13 14 STATE OF WASHINGTON; STATE OF CONNECTICUT; STATE OF MARYLAND; STATE OF NEW JERSEY; STATE OF NEW YORK; STATE OF OREGON; COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF PENNSYLVANIA; DISTRICT OF COLUMBIA; STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF IOWA; STATE OF MINNESOTA; STATE OF NORTH CAROLINA; STATE OF RHODE ISLAND; STATE OF VERMONT and COMMONWEALTH OF VIRGINIA, NO. 2:18-cv-01115-RSL PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES NOTE FOR CONSIDERATION: DECEMBER 21, 2018 15 Plaintiffs, 16 17 18 19 20 21 22 23 v. UNITED STATES DEPARTMENT OF STATE; MICHAEL R. POMPEO, in his official capacity as Secretary of State; DIRECTORATE OF DEFENSE TRADE CONTROLS; MIKE MILLER, in his official capacity as Acting Deputy Assistant Secretary of Defense Trade Controls; SARAH HEIDEMA, in her official capacity as Director of Policy, Office of Defense Trade Controls Policy; DEFENSE DISTRIBUTED; SECOND AMENDMENT FOUNDATION, INC.; AND CONN WILLIAMSON, Defendants. 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL i ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 2 of 21 1 Pursuant to Federal Rule of Civil Procedure 37(a) and LCR 37(a), the Plaintiff States 2 respectfully move for an order compelling the Private Defendants to respond to Plaintiffs’ First 3 Set of Interrogatories and Requests for Production to the Private Defendants (the Requests). 4 I. INTRODUCTION 5 The States’ Requests are narrowly tailored to seek information about one specific issue: 6 the Private Defendants’ involvement in any export of 3D-printable firearm files following the 7 Court’s issuance of a temporary restraining order (TRO) and preliminary injunction rendering 8 such export unlawful. The Private Defendants have largely failed to respond substantively to the 9 Requests, aside from providing limited answers to a few interrogatories and boilerplate, non- 10 responsive answers of dubious accuracy to other Requests. The States respectfully ask the Court 11 to compel the Private Defendants to respond to each disputed Request.1 12 The States propounded the Requests after learning that, on or about August 24, 2018—a 13 few weeks after the Court issued the TRO—Defense Distributed published a video on YouTube 14 featuring Cody Wilson encouraging third parties to host the files online in violation of federal 15 law as established by the TRO. The video urged others to “HOST OR PAY”: “host the files or 16 pay the tax for the men who will,” and promised “two new contracts” in return. The “2nd 17 Amendment Foundation” is listed as a “partner” in the video. In addition, Defense Distributed 18 has transmitted the files by means other than posting them online, but it remains unclear what 19 steps, if any, the company is taking to ensure its distribution does not involve unlawful exports 20 to non-U.S. persons. These actions by parties to this case raise serious questions about potential 21 ongoing harm and the Private Defendants’ efforts to undermine the injunction. The targeted 22 discovery sought by the States is warranted. 23 24 1 For the Court’s convenience, a chart providing a high-level summary the disputed Requests and arguments made herein is attached as Exhibit 12 to the Declaration of Kristin Beneski. PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 1 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 3 of 21 1 2 II. A. RELEVANT FACTS The TRO and Preliminary Injunction 3 On July 30, 2018, the Plaintiff States filed this lawsuit and an emergency motion for a 4 TRO, seeking to prevent irreparable harm that would have been caused if Defense Distributed 5 followed through with its plans to post on the internet 3D-printable files that can be used to 6 automatically manufacture the “Liberator” pistol and other untraceable, undetectable weapons. 7 Dkt. ## 1, 2. Defense Distributed had announced that it planned to post the files online on August 8 1, 2018, as permitted by the Federal Defendants, per a reversal of their previous regulatory 9 position that posting the files online was an unlawful export of defense articles. See Dkt. # 2, pp. 10 19–20. 11 On July 31, 2018, the Court issued a TRO enjoining the Federal Defendants from 12 implementing or enforcing their “Temporary Modification of Category I of the United States 13 Munitions List” and the letter to Cody R. Wilson, Defense Distributed, and Second Amendment 14 Foundation issued by the U.S. Department of State on July 27, 2018, and to “preserve the status 15 quo ex ante as if the modification had not occurred and the letter had not been issued.” Dkt. # 16 23, p. 7. On August 27, 2018, the Court converted the temporary restraining order to a 17 preliminary injunction. Dkt. # 95, p. 25. The effect of these orders was to preserve the status quo 18 in which it is a violation of federal law to post on the internet, or otherwise export, files that can 19 be used to automatically manufacture firearms and other weapons using a 3D printer. 20 In response to the TRO, Defense Distributed removed its files from its website. See Dkt. 21 # 63 (Private Defs’ Opp. to Mot. for PI), p. 7 (characterizing the TRO as a “take-down order” 22 with which Defense Distributed “complied”); see also Beneski Decl., Ex. 3 (Supplemental 23 Responses), pp. 8, 10, 21, 24 (acknowledging that the injunction pertains to “publication via 24 Defense Distributed’s internet website”). PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 2 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 4 of 21 1 B. Defense Distributed Urges Others to Host the Files, and Continues Distribution 2 On August 24, 2018—while the TRO was in effect—the States became aware that 3 Defense Distributed had posted a video on YouTube encouraging third parties to host the 3D- 4 printable firearm files online. Beneski Decl., Ex. 42 & ¶ 6. The video, which featured Defense 5 Distributed’s then-director Cody Wilson, encouraged others to “HOST OR PAY”: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Id. A voiceover accompanying the “HOST OR PAY” image above called on others to “host the files or pay the tax for the men who will.” Id. In return, Defense Distributed promised to “offer two new contracts to you.” Id. The video listed among “Our Partners” the “2nd Amendment Foundation.” Id. The States promptly contacted Defense Distributed’s counsel about the video, who reported a few days later that it had been changed. Id., Ex. 5. In addition, after the Court issued the preliminary injunction, Defense Distributed offered to sell copies of the files and deliver them to customers by means other than posting them on the internet. See, e.g., id., Ex. 2 (Responses), p. 9 (referencing Defense Distributed’s “customers”); Ex. 6 (Twitter page advertising “Files on sale now”); Exs. 7 & 8 (news reports). It is not clear what steps, if any, Defense Distributed has taken to ensure that its distributions are not exports to non-U.S. persons, or to determine whether recipients of the files are ineligible to possess firearms. See id. Ex. 8 (reporting that at an August 28, 2018 press conference, Cody Wilson “refused to answer a question about the potential for foreign nationals to access the plans”). 2 Exhibit 4, a DVD containing a copy of the video, is being submitted to the Clerk’s Office. PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 3 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 5 of 21 1 C. The States’ Discovery Requests and the Private Defendants’ Initial Objections 2 On September 20, 2018, the States issued Plaintiffs’ First Set of Interrogatories and 3 Requests for Production to the Private Defendants (the Requests). Beneski Decl., ¶ 3 & Ex. 1. 4 The Requests, which are limited in number and scope, seek information related to the “Host or 5 Pay” video, as well as other actions the Private Defendants may have taken with respect to 6 potentially unlawful distribution of 3D-printable firearm files on or after July 31, 2018.3 7 To briefly summarize, Interrogatory (“Rog”) 1 seeks identification of individuals who 8 are affiliated with or have authority to act on behalf of Defense Distributed. Id., Ex. 1, p. 5. Rog 9 3 and Request for Production (“RFP”) 1, 5, and 6 ask whether the Private Defendants facilitated 10 or assisted anyone in making the files publicly available via the internet on or after July 31, 2018, 11 and seek information and documents related to any post-injunction distribution or sale of the 12 files. Id., pp. 5–6, 8, 9–10. Rogs 4, 5, and 6 and RFPs 2, 3, and 6 seek information and 13 documents related to the manner in which the Private Defendants distributed any of the files on 14 or after July 31, 2018, and any steps the Private Defendants took or information they collected 15 to determine whether the recipients of the files are U.S. persons, whether they are located within 16 the United States, and whether they may lawfully possess a firearm. Id., pp. 6–7, 8–9, 10. Rog 9 17 and RFPs 4 and 6 seek information and documents related to the “Host or Pay” video and any 18 other documents related to the Private Defendants’ participation in any proposed, planned, or 19 actual sale or distribution of the files on or after July 31, 2018. Id., pp. 7–8, 9, 10. In sum, each 20 Request seeks information about the Private Defendants’ involvement in any potentially 21 unlawful post-injunction export of 3D-printable firearm files. 22 23 24 3 The Private Defendants gave a responsive answer to Rog 2. The States are not currently seeking to compel responses to Rogs 7 and 8 or RFP 7, which seek information and documents related to criminal activity by representatives of Defense Distributed. News reports indicate that the company’s co-founder, Cody Wilson, is facing criminal charges in Texas. He is no longer the company’s director. See Beneski Decl. Ex. 3, p. 4. PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 4 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 6 of 21 1 On October 22, 2018, the Private Defendants responded by objecting to each Request in 2 its entirety without providing, or indicating that they would provide, any substantive response. 3 Beneski Decl., Ex. 2. Their primary objection was that their Rule 12(c) motion was then pending, 4 and that they would not be obligated to participate in any party discovery if the motion were 5 granted. Id. at 2, 13. They also objected to each Request based on relevance and various 6 derivative or related grounds, arguing that the Requests are “not relevant” because there are no 7 claims against them and they are not directly enjoined. See generally id. 8 D. Efforts to Resolve Discovery Disputes 9 On November 2, 2018, the States sent a letter to counsel for the Private Defendants 10 addressing deficiencies in their responses to the Requests. Id., Ex. 9. The Private Defendants did 11 not respond substantively, but the parties agreed to postpone efforts to resolve any discovery 12 disputes until after the Court had ruled on the Private Defendants’ 12(c) motion. Id., ¶ 11. The 13 Court entered a stipulated order on November 7, 2018. Dkt. # 127. On November 13, 2018, the 14 Court denied the Private Defendants’ 12(c) motion. Dkt. # 130. 15 On November 16, the States’ counsel inquired whether the Private Defendants intended 16 to amend or supplement their discovery responses in light of the Court’s order, and requested 17 that they do so by November 26—or alternatively, that they provide dates and times for a meet- 18 and-confer. Beneski Decl., Ex. 10. They received no response by the requested deadline. See id. 19 Ultimately, counsel for the parties met and conferred on Friday, November 30. Id., ¶ 13. 20 Counsel for the Private Defendants stated that they would answer Rog 2, but would not 21 substantively respond to any of the other Requests, and promised to serve supplemental 22 responses on Monday, December 3. Id. Counsel for the States advised that they intended to file 23 a motion to compel responses to the remaining disputed Requests by the Tuesday, December 4 24 deadline for discovery-related motions. Id. PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 5 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 7 of 21 1 E. The Private Defendants’ Amended Objections and Responses 2 After the close of business on December 3, the night before the discovery-motions 3 deadline, the Private Defendants provided supplemental responses. Exs. 3 & 11; ¶ 14. They 4 answered Rogs 1, 2, and 3, and stated that they had no responsive documents to RFP 1. Ex. 3, 5 pp. 4, 5, 7, 20. They refused to respond to Rog 9, id. at 16–17, and their “respon[ses]” to the 6 other Requests are largely non-responsive boilerplate stating that they “did not assist or facilitate 7 any other person” in making the files publicly available on the internet. See generally id. 8 Although the responses to RFPs 2–6 misleadingly state that the “Private Defendants have 9 no nonprivileged documents . . .,” this is part of the boilerplate non-responsive statement, and 10 each RFP response also states that “[r]esponsive materials are being withheld . . .” Id. at 19, 21, 11 23, 26, 28, 31, 34. The supplemental responses also assert untimely new objections, all of which 12 are waived and thus not addressed in this motion. See RichmarkCorp v. Timber Falling 13 Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object 14 to discovery requests within the time required constitutes waiver of any objection.”).4 15 III. RULE 37(a) CERTIFICATION 16 The undersigned hereby certify that they conferred in good faith with counsel for the 17 Private Defendants via telephone on November 30, 2018, prior to filing this motion. The 18 participants in the conference were Chad Flores, Joel Ard, Jeffrey Rupert, and Kristin Beneski. 19 20 IV. A. ARGUMENT Legal Standard 21 Parties may obtain discovery regarding “any nonprivileged matter that is relevant to any 22 party’s claim or defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). 23 24 4 The waived objections are based on the First and Fourteenth Amendments; a purported “conc[ession]” that mischaracterizes the States’ position; and vagueness as to the terms “assist” and “facilitate.” To avoid confusion, the States cite the Private Defendants’ original responses below in addressing the un-waived objections. PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 6 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 8 of 21 1 The scope of discovery should be “liberally construed”; Rule 26 “contemplates discovery into 2 any matter that bears on or that reasonably could lead to other matters that could bear on any 3 issue that is or may be raised in a case.” McArthur v. Rock Woodfired Pizza & Spirits, 318 F.R.D. 4 136, 143 (W.D. Wash. 2016). Courts should generally permit discovery unless the requests have 5 “no conceivable bearing on the case.” Wright & Miller, Federal Practice & Procedure, § 2008 6 (3d ed.). “The party who resists discovery has the burden to show that discovery should not be 7 allowed, and has the burden of clarifying, explaining, and supporting objections.” Everest Indem. 8 Ins. Co. v. QBE Ins. Corp., 980 F. Supp. 2d 1273, 1277 (W.D. Wash. 2013). Untimely objections 9 are waived. RichmarkCorp, 959 F.2d at 1473; see also Fed. R. Civ. P. 33(b)(4). 10 B. The Requests Seek Highly Relevant Information 11 The Private Defendants’ primary objection is that the Requests are “not relevant.” They 12 assert that “[t]his action does not involve any claim against the Private Defendants” and “[t]he 13 Court’s preliminary injunction does not address the Private Defendants; it addresses only the 14 Federal Defendants.” See generally Beneski Decl., Ex. 2. Even if true, this is not dispositive and 15 does not render the requested information irrelevant—far from it. 16 1. 17 The Requests easily clear the threshold of seeking information that “bears on” issues that 18 have been or may be raised in this case. McArthur, 318 F.R.D. at 143. It does not matter that no 19 claims are asserted against the Private Defendants, for this case would not even exist without 20 them. Defense Distributed’s years-long quest for the right to export 3D-printable firearm files, its 21 plans to post the files on the internet following the Federal Defendants’ regulatory reversal, and the 22 extensive harm that widespread dissemination of the files would cause to the States, are all central 23 to the States’ complaint and their requests for injunctive relief. See Dkt. # 29 (First Amended 24 The Private Defendants’ conduct is central to this case Complaint), ¶¶ 2–6, 38–217; Dkt. # 2 (Motion for TRO), pp. 3, 18–23; Dkt. # 43 (Motion for PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 7 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 9 of 21 1 PI), pp. 1, 19–24. In issuing the TRO and preliminary injunction, the Court found a “likelihood 2 of irreparable injury” to the States if Defense Distributed were to follow through with its plans 3 to broadly disseminate the files. Dkt. # 95 (Order), p. 7; see also id. at 20. 4 The “Host or Pay” video is evidence that Defense Distributed, as well as the Second 5 Amendment Foundation, continued supporting efforts to illegally export the files even after the 6 injunction issued. Although the Private Defendants knew they could not lawfully post the files 7 on the internet themselves, they urged others to “host the files or pay the tax for the men who 8 will.” In addition, Defense Distributed has evidently distributed the files by mail after the 9 injunction issued, and may well have done so without taking reasonable steps to determine 10 whether the mailings are unlawful exports—such as by determining recipients’ citizenship. 11 Indeed, as discussed below, the Private Defendants appear to have an exceedingly narrow 12 understanding of what it means to “export” the files in violation of federal law: they erroneously 13 believe it is limited only to posting the files on their own website. Their mistaken belief 14 underscores the need for discovery to determine whether and to what extent they may be 15 involved in illegal and dangerous exports. Similarly, Defense Distributed may well be mailing 16 the files to individuals who are ineligible to possess firearms, without checking their age, 17 criminal history, or other eligibility requirements. The threat of “violations of gun control laws” 18 if 3D-printable firearm files were to proliferate is a significant aspect of the harm to which the 19 injunction was addressed. Dkt. # 95, p. 10. 20 These activities, and any other involvement in exporting the files or otherwise creating a 21 threat of harm to the States, would therefore be highly relevant to these proceedings. Complete 22 responses to all of the disputed Requests will reveal whether there is an ongoing threat of harm 23 that may require further action by the States, and may provide evidence of harm to support the 24 States’ ultimate request for permanent injunctive relief. PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 8 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 10 of 21 1 2. 2 The fact that the Private Defendants are not directly enjoined likewise does not render 3 the Requests irrelevant. It is enough that the Private Defendants’ conduct with respect to the files 4 clearly “bears on” the issues in this case, as discussed above. In addition, inasmuch as the Private 5 Defendants are “parties” with “actual notice” of the injunction (Fed. R. Civ. P. 65(d)(2)), they 6 have a duty to refrain from actively undermining the injunction’s effectiveness—including by 7 encouraging or facilitating violations by others. The Private Defendants have a duty not to undermine the injunction 8 An injunction binds “the parties,” their “officers, agents, servants, employees, and 9 attorneys,” and “other persons who are in active concert or participation with” any of the above, 10 as long as such persons “receive actual notice” of the injunction. Fed. R. Civ. P. 65(d)(2). Any 11 party subject to an injunction must take “all reasonable steps within the party’s power to 12 comply.” In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 13 1993). A party may also be held liable for knowingly aiding and abetting another to violate a 14 court order. See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945) (“defendants may not 15 nullify a decree by carrying out prohibited acts through aiders and abettors, although they were 16 not parties to the original proceeding”). Furthermore, “[e]very affirmative order in equity carries 17 with it the implicit command to refrain from action designed to defeat it.” NLRB v. Deena 18 Artware, Inc., 361 U.S. 398, 413 (1960) (Frankfurter, J., concurring). “In deciding whether an 19 injunction has been violated it is proper to observe the objects for which the relief was granted 20 and to find a breach of the decree in a violation of the spirit of the injunction, even though its 21 strict letter may not have been disregarded.” John B. Stetson Co. v. Stephen L. Stetson Co., 128 22 F.2d 981, 983 (2d Cir. 1941). 23 Here, as discussed above, the Court found in issuing the injunction that “the States will 24 likely suffer irreparable injury if the technical data for designing and producing undetectable PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 9 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 11 of 21 1 weapons using a commercially-available 3D printer are published on the internet.” Dkt. # 95 p. 2 20. Any actions by parties to this case encouraging, inciting, causing, or failing to take all 3 reasonable steps to prevent the posting of the files on the internet or otherwise export them would 4 violate the purpose and spirit of the injunction. The “Host or Pay” video is already one example, 5 and the Requests seek further information about the video and any other evidence of the Private 6 Defendants’ involvement in posting or otherwise illegally distributing the files. Again, this 7 discovery will enable the States to determine whether any violations are occurring and to 8 evaluate the possibilities for remediation if so. 9 C. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The Private Defendants’ Effort to Limit the Requests to “Defense Distributed’s Internet Website” Reflect an Overly Narrow Understanding of an “Export” The Private Defendants insist that several Requests are “overly broad and unduly burdensome” because “the action’s claims and the Court’s preliminary injunction pertain only to publication via Defense Distributed’s internet website,” not any other methods of file distribution. Beneski Decl., Ex. 2, pp. 8, 10, 21, 24, 27, 29, 32. They read the claims and the injunction far too narrowly. The injunction restores the status quo in which it is a violation of federal law to export 3D-printable firearm files. An “export” includes not only online posting, but also “sending a defense article out of the United States in any manner” and “transferring technical data to a foreign person in the United States,” among other activities. 22 CFR § 120.17. Rogs 4–6 and RFPs 2–6 seek information related to the Private Defendants’ involvement in any sale or distribution of the files by any means, including information that will reveal whether and to what extent Defense Distributed attempted to determine whether the recipients of the files it distributed were “foreign persons” and whether they were located in the United States—i.e., whether the distributions were “exports.” This in turn will show whether Defense Distributed actually exported files in violation of federal law in light of the injunction (or whether 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 10 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 12 of 21 1 it acted with reckless disregard as to whether it was exporting them). 2 D. The Private Defendants’ Objections Based on Their Rule 12(c) Motion Are Moot 3 The Private Defendants initially objected that they “should not be required to comply 4 with any [Request] unless and until the Court resolves their Rule 12 motion.” Ex. 2 at 2, 13. 5 Even after the Court denied the Private Defendants’ Rule 12 motion, Dkt. # 130, they renewed 6 this objection. See Ex. 3, pp. 2, 18. It is now moot and no longer has any conceivable merit. 7 E. The Private Defendants Fail to Assert Any Other Meritorious Objections 8 The remaining objections based on proportionality, burdensomeness, impropriety, and 9 the like lack merit because they are generic, unexplained, and unsupported. See, e.g., Krausz 10 Indus., Ltd. v. Romac Indus., Inc., No. C10-1204RSL, 2011 WL 13100750, at *1 n.1 (W.D. 11 Wash. Aug. 10, 2011) (“boilerplate objections” are “not sufficient”). Further, these objections 12 fail to the extent they are derivative of the meritless objections discussed above. 13 F. 14 15 16 17 18 19 20 21 22 23 The Private Defendants Should Be Compelled to Fully Respond to All Disputed Requests The Private Defendants failed to respond to Rog 9, which seeks information about the “Host or Pay” video. Ex. 3, pp. 16–17. Their supplemental “responses” to Rogs 4–6 and RFPs 2–6 are not really responses, but boilerplate stating that they “did not assist or facilitate” others in posting the files via the internet. This boilerplate is not responsive to these Requests. The “did not assist or facilitate” boilerplate is responsive to Rog 3 and RFP 1, but troublingly, it is in tension with the “Host or Pay” video, in which Defense Distributed promises “two new contracts” to those who “host the files or pay the tax for the men who will.” The Private Defendants also assert a new (waived) objection to the terms “assist” and “facilitate”—leaving it unclear how they understood those terms for purposes of their supplemental responses to Rog 3 and RFP 1. Id., pp. 6–7, 19–20. The supplemental response to RFP 1 also incongruously states 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 11 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 13 of 21 1 that the Private Defendants “have no nonprivileged documents concerning or relating to” RFP 2 1, but at the same time that “[r]esponsive materials are being withheld” on the basis of the stated 3 objections (which do not include privilege). Id., pp. 19–20. 4 Further, it is unclear whether the supplemental answers to Rogs 1 and 5 are complete. 5 Rog 1 seeks identification of “all” persons affiliated with Defense Distributed, and the 6 supplemental answer identifies only two individuals—Defense Distributed’s “Director” and its 7 “co-founde[r].” Id. at 4. Presumably, there is at least one other unidentified co-founder, and 8 perhaps other unidentified individuals. Rog 5 seeks a description of “any” methods by which the 9 Private Defendants have distributed the files, and the supplemental answer identifies only one 10 method—United States Postal Service mail—without indicating whether it is the only method. 11 Id. at 11. Normally, such matters would be clarified during a meet-and-confer, but since the 12 Private Defendants stated that they only intended to supplement Rog 2 and did not provide their 13 supplemental responses until the night before the deadline to file discovery-related motions, 14 there was no opportunity to confer meaningfully about these responses. 15 16 17 As to any responses that may be incomplete or are withholding information, the States respectfully request that the Private Defendants be compelled to respond in full. V. REQUEST FOR ATTORNEYS’ FEES AND OTHER EXPENSES 18 Should this motion be granted, the Plaintiff States respectfully request that the Court 19 award their attorneys’ fees and other expenses incurred in making this motion. See Fed. R. Civ. 20 P. 37(a)(5). If the Court does so, the States will submit evidence of their reasonable expenses. 21 VI. CONCLUSION 22 For the reasons above, the Plaintiff States respectfully request that the Court compel the 23 Private Defendants to provide substantive and complete responses to Rogs 1, 3, 4, 5, 6, and 9, 24 and RFPs 1, 2, 3, 4, 5, and 6, and that the Court award the States’ reasonable expenses and fees. PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 12 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 14 of 21 1 DATED this 4th day of December, 2018. 2 ROBERT W. FERGUSON Attorney General 3 /s/ Jeffrey Rupert JEFFREY RUPERT, WSBA #45037 Division Chief KRISTIN BENESKI, WSBA #45478 Assistant Attorney General TODD BOWERS, WSBA #25274 Deputy Attorney General JEFF SPRUNG, WSBA #23607 ZACH JONES, WSBA #44557 Assistant Attorneys General JeffreyR2@atg.wa.gov KristinB1@atg.wa.gov ToddB@atg.wa.gov JeffS2@atg.wa.gov ZachJ@atg.wa.gov Attorneys for Plaintiff State of Washington 4 5 6 7 8 9 10 11 12 GEORGE JEPSEN Attorney General of Connecticut 13 /s/ Maura Murphy Osborne MAURA MURPHY OSBORNE, CT-19987 Assistant Attorney General Connecticut Office of Attorney General 55 Elm St. P.O. Box 120 Hartford, CT 06141-0120 Maura.murphyosborne@ct.gov Attorneys for Plaintiff State of Connecticut 14 15 16 17 18 BRIAN E. FROSH Attorney General of Maryland 19 /s/ Julia Doyle Bernhardt JULIA DOYLE BERNHARDT Assistant Attorneys General Office of the Attorney General 200 Saint Paul Place, 20th Floor Baltimore, MD 21202 (410) 576-7291 jbernhardt@oag.state.md.us Attorneys for Plaintiff State of Maryland GURBIR GREWAL 20 21 22 23 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 13 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 15 of 21 1 Attorney General of New Jersey 2 /s/ Jeremy M. Feigenbaum JEREMY M. FEIGENBAUM Assistant Attorney General Office of the Attorney General Richard J. Hughes Justice Complex 25 Market Street, 8th Floor, West Wing Trenton, NJ 08625-0080 (609) 376-2690 Jeremy.Feigenbaum@njoag.gov Attorneys for Plaintiff State of New Jersey 3 4 5 6 7 BARABARA D. UNDERWOOD Attorney General of New York 8 9 /s/ Steven Wu STEVEN WU Attorney General of New York 28 Liberty Street New York, NY 10005 steven.wu@ag.ny.gov Attorneys for Plaintiff State of New York 10 11 12 13 MAURA HEALEY Attorney General of Commonwealth of Massachusetts 14 15 /s/ Jonathan B. Miller JONATHAN B. MILLER Assistant Attorney General Office of the Massachusetts Attorney General One Ashburton Place Boston, MA 02108 (617) 963-2073 Jonathan.Miller@state.ma.us Attorneys for Plaintiff Commonwealth of Massachusetts 16 17 18 19 20 JOSH SHAPIRO Attorney General of Commonwealth of Pennsylvania 21 22 /s/ Jonathan Scott Goldman JONATHAN SCOTT GOLDMAN Executive Deputy Attorney General Civil Division 23 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 14 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 16 of 21 1 Office of Attorney General Strawberry Square, 15th Floor Harrisburg, PA 17120 717-783-1471 jgoldman@attorneygeneral.gov 2 3 4 /s/ Michael J. Fischer MICHAEL J FISCHER Pennsylvania Office of the Attorney General 1600 Arch Street, Ste 300 Philadelphia, PA 19103 215-560-2171 mfischer@attorneygeneral.gov Attorney for Plaintiff Commonwealth of Pennsylvania 5 6 7 8 9 KARL A. RACINE Attorney General for the District of Columbia 10 /s/ Robyn Bender Deputy Attorney General Public Advocacy Division Robyn.bender@dc.gov 11 12 /s/ Jimmy Rock Assistant Deputy Attorney General Public Advocacy Division 202-741-0770 Jimmy.Rock@dc.gov 13 14 15 /s/ Andrew J. Saindon Senior Assistant Attorney General 202-724-6643 andy.saindon@dc.gov Office of the Attorney General for the District of Columbia 441 4th Street NW, Ste 630 South Washington, DC 20001 Attorneys for Plaintiff District of Columbia 16 17 18 19 20 ELLEN F. ROSENBLUM Attorney General of Oregon 21 22 /s/ Scott J. Kaplan SCOTT J. KAPLAN, WSBA #49377 Senior Assistant Attorney General Oregon Department of Justice 23 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 15 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 17 of 21 1 100 SW Market Street Portland, OR 97201 (971) 673-1880 scott.kaplan@doj.state.or.us Attorneys for Plaintiff State of Oregon 2 3 XAVIER BECERRA Attorney General of California 4 5 /s/ Nelson R. Richards NELSON R. RICHARDS Deputy Attorney General California Department of Justice Office of the Attorney General 2550 Mariposa Mall, Rm 5090 Fesno, CA 93721 559-705-2324 Nelson.richards@doj.ca.gov Attorneys for the State of California 6 7 8 9 10 CYNTHIA H. COFFMAN Attorney General of Colorado 11 /s/ Matthew D. Grove MATTHEW D. GROVE Assistant Solicitor General Colorado Department of Law 1300 Broadway, 6th Floor Denver, Colorado 80203 Telephone: (720) 508-6157 FAX: (720) 508-6041 E-Mail: matt.grove@coag.gov Attorneys for Plaintiff State of Colorado 12 13 14 15 16 17 MATTHEW P. DENN Attorney General of Delaware 18 /s/ Ilona M. Kirshon ILONA M. KIRSHON (#3705) Deputy State Solicitor State of Delaware Department of Justice Carvel State Office Building, 6th Floor Wilmington, DE 19801 (302) 577-8400 Ilona.kirshon@state.de.us /s/ Patricia A. Davis PATRICIA A. DAVIS (#3857) Deputy Attorney General State of Delaware Department of Justice 19 20 21 22 23 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 16 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 18 of 21 1 Dover, DE 19904 (302) 257-3233 patriciaA.davis@state.de.us Attorneys for the Plaintiff State of Delaware 2 3 RUSSELL A. SUZUKI Attorney General of Hawaii 4 5 /s/ Robert T. Nakatsuji ROBERT T. NAKATSUJI Deputy Attorney General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 (808) 586-1360 Robert.T.Nakatsuji@hawaii.gov Attorneys for Plaintiff State of Hawaii 6 7 8 9 10 LISA MADIGAN Attorney General of Illinois 11 /s/ Brett E. Legner BRETT E. LEGNER Deputy Solicitor General Office of the Attorney General 100 W. Randolph, 12th Floor Chicago, IL 60601 blegner@atg.state.il.us Attorneys for Plaintiff State of Illinois 12 13 14 15 16 THOMAS J. MILLER Attorney General of Iowa 17 /s/ Nathanael Blake NATHANAEL BLAKE Office of the Attorney General of Iowa Hoover State Office Bldg., 2nd Floor 1305 East Walnut Street Des Moines, IA 50319 (515) 281-4325 nathan.blake@ag.iowa.gov Attorneys for the Plaintiff State of Iowa 18 19 20 21 22 23 LORI SWANSON Attorney General of Minnesota 24 /s/ Jacob Campion PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 17 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 19 of 21 1 JACOB CAMPION, MN Reg. #0391274 Assistant Attorney General Office of the Minnesota Attorney General 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1459 jacob.campion@ag.state.mn.us Attorneys for the Plaintiff State of Minnesota 2 3 4 5 JOSHUA H. STEIN Attorney General of North Carolina 6 7 /s/ Sripriya Narasimhan SRIPRIYA NARASIMHAN Deputy General Counsel North Carolina Department of Justice 114 W. Edenton St. Raleigh, NC 27603 (919) 716-6421 snarasimhan@ncdoj.gov Attorneys for Plaintiff State of North Carolina 8 9 10 11 PETER F. KILMARTIN Attorney General of Rhode Island 12 13 /s/ Susan Urso SUSAN URSO Assistant Attorney General 150 South Main Street Providence, Rhode Island 02903 (401) 274-4400 surso@riag.ri.gov Attorneys for Plaintiff State of Rhode Island 14 15 16 17 THOMAS J. DONOVAN, JR. Attorney General of Vermont 18 19 /s/ Benjamin D. Battles BENJAMIN D. BATTLES Solicitor General Office of the Attorney General 109 State Street Montpelier, Vermont 05609-1001 (802) 828-5500 benjamin.battles@vermont.gov Attorneys for Plaintiff State of Vermont 20 21 22 23 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 18 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 20 of 21 1 MARK R. HERRING Attorney General of the Commonwealth of Virginia 2 3 /s/ Samuel T. Towell SAMUEL T. TOWELL Deputy Attorney General, Civil Litigation Office of the Attorney General of Virginia Barbara Johns Building 202 N. Ninth Street Richmond, VA 23219 (804) 786-6731 STowell@oag.state.va.us Attorney for Plaintiff Commonwealth of Virginia 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 19 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148 Filed 12/04/18 Page 21 of 21 1 DECLARATION OF SERVICE 2 I hereby certify that on December 4, 2018, I caused the foregoing document to be 3 electronically filed with the Clerk of the Court using the CM/ECF system, which will serve a 4 copy of this document upon all counsel of record. 5 DATED this 4th day of December, 2018, at Seattle, Washington. 6 /s/ Jeffrey Rupert JEFFREY RUPERT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES 2:18-cv-01115-RSL 20 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148-1 Filed 12/04/18 Page 1 of 3 1 The Honorable Robert S. Lasnik 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 10 11 12 13 14 STATE OF WASHINGTON; STATE OF CONNECTICUT; STATE OF MARYLAND; STATE OF NEW JERSEY; STATE OF NEW YORK; STATE OF OREGON; COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF PENNSYLVANIA; DISTRICT OF COLUMBIA; STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF IOWA; STATE OF MINNESOTA; STATE OF NORTH CAROLINA; STATE OF RHODE ISLAND; STATE OF VERMONT and COMMONWEALTH OF VIRGINIA, NO. 2:18-cv-01115-RSL ORDER GRANTING PLAINTIFF STATES’ MOTION TO COMPEL DISCOVERY RESPONSES [PROPOSED] NOTE FOR CONSIDERATION: DECEMBER 21, 2018 15 Plaintiffs, 16 17 18 19 20 21 22 v. UNITED STATES DEPARTMENT OF STATE; MICHAEL R. POMPEO, in his official capacity as Secretary of State; DIRECTORATE OF DEFENSE TRADE CONTROLS; MIKE MILLER, in his official capacity as Acting Deputy Assistant Secretary of Defense Trade Controls; SARAH HEIDEMA, in her official capacity as Director of Policy, Office of Defense Trade Controls Policy; DEFENSE DISTRIBUTED; SECOND AMENDMENT FOUNDATION, INC.; AND CONN WILLIAMSON, 23 Defendants. 24 [PROPOSED] ORDER GRANTING MOTION TO COMPEL DISCOVERY RESPONSES NO. 2:18-cv-01115-RSL 1 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148-1 Filed 12/04/18 Page 2 of 3 1 This matter came before the Court on the Plaintiff States’ Motion to Compel Discovery 2 Responses. The Court has considered all briefing on the motion and documents filed therewith, 3 including declarations and exhibits; the arguments of counsel; and the entire record in this case. 4 Having considered the foregoing, the Court finds that the Private Defendants’ objections 5 to Plaintiffs’ First Set of Interrogatories and Requests for Production to the Private Defendants 6 (Requests) are insufficient and lack merit, and that the Private Defendants improperly failed to 7 respond in full to each of the disputed Requests. The Court further finds that any objections not 8 asserted within 30 days after service of the Requests are untimely and therefore waived. See 9 RichmarkCorp v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). 10 The Private Defendants are hereby ordered to provide complete answers to Interrogatory 11 Nos. 1, 3, 4, 5, 6, and 9, and to provide complete responses to Request for Production Nos. 1, 2, 12 3, 4, 5, and 6, no later than _______. 13 The Plaintiff States are hereby awarded their reasonable expenses, including attorneys’ 14 fees, incurred in making the Motion to Compel Discovery Responses. The States shall submit 15 evidence of their reasonable expenses no later than _______. The Private Defendants may 16 submit a response no later than _______. 17 DATED this ______ day of ___________________, 2018. 18 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 [PROPOSED] ORDER GRANTING MOTION TO COMPEL DISCOVERY RESPONSES NO. 2:18-cv-01115-RSL 2 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 148-1 Filed 12/04/18 Page 3 of 3 1 Presented By: 2 ROBERT W. FERGUSON Attorney General 3 4 5 6 7 8 /s/ Jeffrey Rupert JEFFREY RUPERT, WSBA #45037 Division Chief KRISTIN BENESKI, WSBA #45478 Assistant Attorney General TODD BOWERS, WSBA #25274 Deputy Attorney General JEFFREY T. SPRUNG, WSBA #23607 ZACH JONES, WSBA #44557 Assistant Attorneys General Attorneys for Plaintiff State of Washington 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 [PROPOSED] ORDER GRANTING MOTION TO COMPEL DISCOVERY RESPONSES NO. 2:18-cv-01115-RSL 3 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744