Case 3:18-cv-00484-HEH Document 78 Filed 01/17/19 Page 1 of 6 PageID# 748

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

ROY COCKRUM,

ET AL .,

v.

Plaintiffs,
Case No. 3:18-cv-484-HEH

DONALD J. TRUMP FOR PRESIDENT, INC.,
Defendant.

DEFENDANT DONALD J. TRUMP FOR PRESIDENT, INC.’S
REPLY BRIEF IN SUPPORT OF
MOTION FOR STAY OF DISCOVERY

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ARGUMENT
The Campaign’s motion asks the Court to take the modest step of staying discovery until
after the Court has resolved the Campaign’s motion to dismiss. It does not (as Plaintiffs seem to
believe) ask the Court to declare that the Campaign is permanently and categorically “immune
from civil discovery.” (Opp. 2.) Plaintiffs’ objections to this modest step are unpersuasive.
First, Plaintiffs fail to engage with the Campaign’s central argument that courts should
and do stay discovery pending resolution of a motion to dismiss even in routine cases that raise
no separation-of-powers and First Amendment concerns. The Supreme Court explained in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007)—a case that involved a private corporation
and that had nothing to do with the First Amendment—that discovery “can be expensive,” especially where the case involves a “massive factual controversy.” As a result, before a court allows
a case “to go to its inevitably costly and protracted discovery phase,” it should at the very least
assure itself that “the plaintiffs can construct a claim from the events related in the complaint.” Id.
Otherwise, “a plaintiff with a largely groundless claim” would “be allowed to take up the time of
a number of other people.” Id. These concerns, by themselves, justify a stay of discovery pending
resolution of the motion to dismiss. To be sure, the separation of powers, the First Amendment,
and the Mueller investigation make this normal justification especially compelling, but they are
not a departure from the norm. Plaintiffs have no response to this key point.
Second, Plaintiffs acknowledge that discovery in this case would raise complex constitutional questions, but urge the Court to decide these issues as they arise. (Opp. 1.) Under that logic, no court would ever grant a stay of discovery pending resolution of a motion to dismiss, since
a court could always decide discovery disputes as they arise. Yet courts “have often stayed discovery while a motion that would be thoroughly dispositive of the claims in the Complaint is
pending.” Sai v. Dep’t of Homeland Security, 99 F. Supp. 3d 50, 58 (D.D.C. 2015). They do so
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because Plaintiffs’ proposed alternative—plowing ahead with discovery even though the case
may be decided on the motion to dismiss without any discovery—misuses “judicial resources”
and “wast[es] time and effort of all concerned.” Id.
Moreover, in this case, Plaintiffs’ proposal is not only wasteful, it is quite unworkable.
As the Campaign has already shown, the Court and the parties cannot properly analyze the legal
issues that will come up in discovery until the Court decides the motion to dismiss. For example,
deciding whether the First Amendment protects the Campaign’s communications, the Court may
have to balance the Campaign’s constitutional interests against the Plaintiffs’ “need for the discovery.” Perry v. Schwarzenegger, 591 F.3d 1147, 1164 (9th Cir. 2010). In the Campaign’s view,
Plaintiffs have no need whatsoever for discovery, because their claims lack legal merit and can
be dismissed without any discovery at all. There is simply no way to evaluate that argument until
the motion to dismiss has been decided.
Indeed, Plaintiffs’ brief shows that discovery would raise another threshold question—
who and what is part of the “Campaign”—in addition to the thorny constitutional issues the
Campaign has already identified. Plaintiffs sought discovery “from the Campaign” (Opp. 2), and,
in their first set of requests, announced a definition of “Campaign” that is so broad that it would,
by its terms, sweep in the President, the Vice President, a Cabinet Secretary, and multiple senior
White House officials, not to mention thousands of employees and unpaid volunteers (Mem. 4).
Plaintiffs now retreat from that broad definition, asserting that they “currently” do not ask for
documents “from the President or any other high ranking official” or relating to “the President’s
official acts.” (Opp. 2.) That statement conspicuously leaves open the possibility that Plaintiffs
will make such a request in the future. And, in any event, it suggests that Plaintiffs’ definition
purports to encompass every “unpaid volunteer” who worked for the Campaign in 2016. (Opp. 2.)

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Finally, Plaintiffs deny the relevance of Judge Huvelle’s previous refusal to allow discovery in this litigation. See Cockrum v. Donald J. Trump for President, Inc., 319 F. Supp. 3d 158
(D.D.C. 2018). In Plaintiffs’ telling, “Judge Huvelle’s concern was that plaintiffs were seeking
merits discovery and not discovery tailored to jurisdictional matters.” (Opp. 4.) That was certainly one of Judge Huvelle’s concerns, but it was far from her only concern. Judge Huvelle raised a
multitude of additional concerns as well, all of which apply in this lawsuit, too:
•

Judge Huvelle explained that proceeding to discovery would “set coequal branches of
the government onto a collision course.” Cockrum, 319 F. Supp. 3d at 189. That concern is equally applicable here.

•

Judge Huvelle explained that discovery would “dovetail with Special Prosecutor
Robert Mueller’s ongoing investigations” and that Plaintiffs “will be faced with witnesses who will invoke their First Amendment rights.” Id. That concern is equally applicable here.

•

Judge Huvelle explained that proceeding to discovery “would also draw this Court into endless discovery disputes.” Id. That concern is equally applicable here.

•

Judge Huvelle explained that proceeding to discovery would force the Campaign to
bear “burden and expense.” Id. That concern is equally applicable here.

•

Judge Huvelle explained that Plaintiffs’ requests constituted an “ill-defined,” “overly
broad,” “not narrowly tailored,” “wide-ranging,” “thinly-veiled,” “speculative,”
“overreaching” “fishing expedition.” Id. at 187–89. That concern is equally applicable
here—in fact, more applicable, since Plaintiffs’ requests are broader than the requests
Judge Huvelle criticized. (Mem. 4.)
*

*

*

Plaintiffs’ own allies, in a press release issued by Plaintiffs’ own counsel, have described
this lawsuit as “a vehicle for discovery of documents and evidence” from the Campaign. (Mem.
3; see also https://protectdemocracy.org/cockrum-v-trump/legal-experts/.) Plaintiffs’ dramatically
overbroad discovery requests in Judge Huvelle’s court, and their even broader discovery requests
in this Court, confirm this assessment of the lawsuit’s goals. It cannot be the case that a plaintiff
can fail to show that his lawsuit is consistent with the First Amendment, fail to plead claims un4

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der the law of the correct state, fail to plead the legal elements of those claims, and fail to plead a
plausible factual theory—yet still gets exactly what he wants out of the lawsuit. The Court
should grant the motion for a stay.
CONCLUSION
The Court should grant the Campaign’s motion to stay discovery pending resolution of
the Campaign’s motion to dismiss.

Dated:

January 17, 2019

Respectfully submitted,
/s/ Nikki L. McArthur
Michael A. Carvin*
Nikki L. McArthur (Virginia Bar No. 84174)
Vivek Suri*
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
(202) 879-3939
macarvin@jonesday.com
nmcarthur@jonesday.com
vsuri@jonesday.com

Jeffrey Baltruzak*
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
(412) 391-3939
jbaltruzak@jonesday.com

* Pro hac vice
Counsel for Donald J. Trump for President, Inc.

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CERTIFICATE OF SERVICE
I certify that on January 17, 2019, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will send a notice of electronic filing to all registered
parties.
Dated:

January 17, 2019

/s/ Nikki L. McArthur
Nikki L. McArthur
Counsel for Donald J. Trump for President, Inc.

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