Case 3:19-cv-01255-LAB-KSC Document 33 Filed 08/21/19 PageID.163 Page 1 of 22

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Oscar Ramallo (Bar No. 241487)
oscar.ramallo@arnoldporter.com
ARNOLD & PORTER KAYE SCHOLER LLP
777 South Figueroa Street, 44th Floor
Los Angeles, CA 90017
Telephone: (213) 243-4000
Facsimile: (213) 243-4199
Attorney for Plaintiff
Kaji Dousa
[Additional counsel listed on following pages]

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KAJI DOUSA,
Plaintiff,

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Case No. 19-cv-01255(LAB)(KSC)

v.

JOINT MOTION FOR
DETERMINATION OF
DISCOVERY DISPUTE

U.S. DEPARTMENT OF HOMELAND
SECURITY (“DHS”); U.S. IMMIGRATION [Hon. Karen S. Crawford]
AND CUSTOMS ENFORCEMENT
(“ICE”); U.S. CUSTOMS AND BORDER
PROTECTION (“CBP”); KEVIN K.
MCALEENAN, Acting Secretary of DHS;
MATTHEW T. ALBENCE, Acting Director
of ICE; MARK A. MORGAN, Acting
Commissioner of CBP; AND PETER
FLORES, Director of Field Operations for
CBP, San Diego,
Defendants.

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PLAINTIFF’S POSITION

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WHEREAS, Plaintiff Kaji Dousa filed a Complaint for Declaratory and

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Injunctive Relief on July 8, 2019, asserting Retaliation in Violation of the First

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Amendment (Count 1), Violation of the First Amendment’s Free Exercise Clause

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(Count 2), a Hybrid First Amendment Rights Claim (Count 3), and Violation of the

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Religious Freedom Restoration Act (Count 4), against Defendants U.S. Department

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of Homeland Security (“DHS”), U.S. Immigration and Customs Enforcement

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(“ICE”), U.S. Customs and Border Protection (“CBP”), Kevin K. McAleenan,

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Matthew T. Albence, Mark A. Morgan, and Peter Flores. ECF No. 1.
WHEREAS, Plaintiff then filed a motion for a preliminary injunction on July

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25, 2019, with a hearing date of September 23, 2019. ECF No. 25.
WHEREAS, Plaintiff is seeking limited expedited discovery in support of her

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motion for a preliminary injunction – specifically the following categories of

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documents:1
1. Any and all documents within the possession, custody, or control of DHS,
ICE, or CBP relating to the revocation of Kaji Dousa’s Secure Electronic
Network of Travelers Rapid Inspection (“SENTRI”) pass.

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2. Any and all files, including but not limited to any “dossiers,” created,
kept, or maintained by DHS, ICE, or CBP at any time from January 1,
2018 through the present, related to Kaji Dousa.

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3. Any and all documents, dated January 1, 2018 through the present,
maintained within a system of records as defined in 5 U.S.C. § 552a(a)(5)
and in possession, custody, or control of DHS, USCIS, ICE, or CBP, to
which Plaintiff Kaji Dousa is entitled access under the Privacy Act, 5
U.S.C. § 552a.

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See Exhibit A to the Declaration of R. Stanton Jones, counsel for Plaintiff (“Jones
Decl.”).

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JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE

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WHEREAS, Plaintiff’s counsel spoke with Defendants’ counsel regarding

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Plaintiff’s request for expedited discovery by phone on July 25, 2019, and the

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parties thereafter exchanged a number of email messages.

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WHEREAS, Defendants have agreed to produce only two heavily redacted

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pages of documents voluntarily, and the parties have reached an impasse with

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respect to the vast majority of documents that Plaintiff is seeking to discover in

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advance of the hearing on her motion for a preliminary injunction.

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WHEREAS, Plaintiff asserts that there is good cause for expedited discovery
and asks that the Court order Defendants to produce all responsive documents

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(without withholding based on further objection) no later than ten days following an

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order from this Court, or by September 9, 2019 (one week before Plaintiff’s reply in

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support of her motion for a preliminary injunction is due), whichever is earlier.

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WHEREAS, Defendants maintain that expedited discovery is not justified.

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NOW, THEREFORE, the parties submit their respective positions as

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follows:
A. Introduction
Plaintiff Kaji Dousa files this motion seeking limited expedited discovery in

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support of her motion for a preliminary injunction prohibiting the Defendant

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government agencies from continuing to target her for adverse treatment because

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she exercises her fundamental rights of free speech, association, and religious

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exercise in support of immigrant communities.

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Pastor Dousa is a Christian pastor who ministers to, and advocates for,

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immigrant communities as part of the exercise of her faith. Compl. at ¶ 4-5 (ECF

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No. 1). She provides pastoral care to migrants, both in the United States and across

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the Southern Border in Mexico, officiates migrants’ weddings, and leads prayerful

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vigils in opposition to U.S. immigration policy. Id. 8-9, 31. Because she engages

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in these activities—all of which are protected by the First Amendment—

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JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE

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Defendants have targeted Pastor Dousa for adverse treatment, including revoking

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border-crossing privileges they once provided her, and subjecting her to

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unwarranted surveillance, detention, interrogation, and harassment. Id. 10-14. And

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Defendants have done so as part of a disturbing pattern and practice of targeting

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scores of faith leaders, journalists, and advocates for adverse treatment in order to

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stifle opposition to U.S. immigration policy, and to punish those who offer comfort,

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aid, or ministry to migrants. Id.

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In both her Complaint and motion for a preliminary injunction, Pastor Dousa

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alleges that Defendants’ conduct violates the First Amendment’s Free Exercise and

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Free Speech Clauses, as well as the Religious Freedom Restoration Act, 42 U.S.C.

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§§ 2000bb et seq. Pastor Dousa further alleges that Defendants’ actions already

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have severely harmed her ministry—both in the United States and at the Southern

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Border—and will continue to inflict further irreparable harm if not enjoined.

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Accordingly, Pastor Dousa is seeking a preliminary injunction ordering Defendants

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to comply with the United States Constitution and federal law, to cease their

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adverse treatment of her, and to restore her status as a “trusted traveler” as part of

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the Secure Electronic Network for Travelers Rapid Inspection (“SENTRI”)

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program2, and restraining Defendants from taking any future adverse action against

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her based on her protected expression, association, or religious exercise.

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During the course of conferring on this motion, counsel for Defendants initially
represented that Pastor Dousa’s SENTRI pass currently is “valid and available for
use.” However, they also acknowledged that “it may be that the SENTRI pass was
revoked or suspended for a period of time.” See Jones Decl. ¶ 8. After Plaintiff
sent Defendants her portion of this joint motion, Defendants’ counsel produced the
two heavily redacted pages attached to the Declaration of Saro Oliveri, which
purport to be records related to Pastor Dousa’s Global Entry card. Id. ¶ 11.
Neither these documents, nor Mr. Oliveri’s declaration, establish that Pastor Dousa
did not also have a SENTRI pass at one point in time (as the declaration implies, it
is common to have both), nor do they explain the leaked government documents—
effectively authenticated by CBP—indicating that Pastor Dousa did in fact have a

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In support of that motion, Pastor Dousa seeks limited expedited discovery

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that is directly relevant to the motion and the imminent harm it seeks to prevent.

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The discovery Pastor Dousa proposes—three targeted document requests covering a

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short window of time—is narrowly tailored to seek only limited information in

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Defendants’ possession, custody, and control that pertains specifically to Pastor

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Dousa. Defendants should be able to locate and produce the documents readily and

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with minimal effort. Thus, the burden on Defendants, if any, will be insignificant.

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At the same time, the documents Pastor Dousa seeks, which are in Defendants’

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exclusive control, bear directly on the relief she is seeking in her motion for a

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preliminary injunction. In fact, the Privacy Act, 5 U.S.C. § 552a, requires

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Defendants to produce most, if not all, of the requested information upon request.3

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Thus, the benefits of the discovery outweigh any conceivable prejudice to

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Defendants.
In short, there is good cause for the Court to grant Pastor Dousa’s request for

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limited expedited discovery in connection with her motion for a preliminary

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injunction.4

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SENTRI pass and that it was revoked as part of “Operation Secure Line.” See
Compl. ¶¶ 56-66, 72-73 (ECF No. 1); Jones Decl., Exhibit D.
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Pastor Dousa submitted a separate Privacy Act request to ICE and CBP on June
7, 2019, but has not received any responsive documents or information. See Jones
Decl. ¶ 4. Defendants’ counsel advised Pastor Dousa’s counsel that “the process
has been taking longer than usual,” and was unable to provide even an estimate as
to when the agencies will complete their review, let alone produce responsive
documents. Id. ¶ 7.
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Prior to submitting their portion of this motion, Defendants had not raised any
other or more specific objection to Pastor Dousa’s proposed document requests.
See Jones Decl. ¶ 9.

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B. The Court Has Discretion to Allow Expedited Discovery
Although the parties generally may not commence discovery until they have

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conferred as required by Federal Rule of Civil Procedure 26(f), courts may permit

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earlier, expedited discovery upon a showing of good cause. Citizens for Quality

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Education San Diego v. San Diego Unified School Dist., 2018 WL 1150836, *2

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(S.D. Cal. March 5, 2018); SemiTool Inc., v. Tokyo Electron America, Inc., 208

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F.R.D 273, 275-76 (N.D. Cal. 2002). Good cause exists “where the need for

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expedited discovery, in consideration of the administration of justice, outweighs the

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prejudice to the responding party.” In re Countrywide Fin. Corp. Derivative Litig.,

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542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008) (quotations omitted). Such discovery

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is often permitted where it would “better enable the court to judge the parties’

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interests and respective chances for success on the merits at a preliminary

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injunction hearing.” Citizens for Quality Education, 2018 WL 1150836, *2 (citing

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Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613 (D. Ariz.

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2001) (quotations and citations omitted)); see also Fed. R. Civ. P. 26 advisory

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committee note (1993) (discovery before the Rule 26 conference “will be

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appropriate in some cases, such as those involving requests for a preliminary

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injunction or motions challenging personal jurisdiction”); Ellsworth Assoc., Inc. v.

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U.S., 719 F. Supp. 841, 844 (D.D.C. 1996) (noting that expedited discovery is

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“particularly appropriate” when a plaintiff seeks injunctive relief and is routinely

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granted in cases challenging the constitutionality of government action). Courts

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examine the requested discovery based on the entirety of the record to date and the

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reasonableness of the request in light of all surrounding circumstances. Merrill

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Lynch, Pierce, Fenner & Smith v. O’Connor, 194 F.R.D. 618, 624 (N.D. Ill. 2000).

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Factors commonly considered in determining reasonableness include: “(1) whether

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a preliminary injunction is pending; (2) the breadth of the discovery requests; (3)

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the purpose for requesting the expedited discovery; (4) the burden on the

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defendants to comply with the requests; and (5) how far in advance of the typical

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discovery process the request was made.” Am. LegalNet, Inc. v. Davis, 673 F.

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Supp. 2d 1063, 1067 (C.D. Cal. 2009) (quotations and citations omitted).
Pastor Dousa’s request for limited expedited discovery readily satisfies this

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standard.
C. Pastor Dousa Has Good Cause for Seeking Expedited Discovery

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There is good cause for the Court to grant Pastor Dousa’s request for limited

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expedited discovery. A motion for preliminary injunction is pending, and the

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discovery sought is designed to facilitate the Court’s full and fair consideration of

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that motion. Pastor Dousa’s requests are narrow and reasonable, and the benefits of

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requiring Defendants to produce the documents sought prior to the hearing on

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Pastor Dousa’s motion for a preliminary injunction significantly outweigh any

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potential prejudice or burden to Defendants.

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1. Pastor Dousa’s Requests are Directly Relevant to the Pending Preliminary
Injunction Motion

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The documents Pastor Dousa seeks are directly relevant to the Court’s

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consideration of her pending motion for preliminary injunction and prevention of

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irreparable harm. Pastor Dousa has proposed three document requests narrowly

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targeted to discover Defendants’ motives in revoking her SENTRI pass,5 subjecting

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her to extended secondary detention and interrogation at the border, and surveilling

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her, including whether Defendants took those actions based on Pastor Dousa’s First

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Amendment-protected activities. As courts in this District have observed, in the

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First Amendment context—where evidence regarding the purpose and effect of

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challenged conduct is essential to assessing both likelihood of success on the merits

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and irreparable harm—“it is in the interest of the administration of justice . . . to

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Defendants have not in fact refuted the allegation that they unlawfully revoked
Pastor Dousa’s SENTRI pass. See supra n.2.

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JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE

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more fully develop the factual record on Plaintiffs’ preliminary injunction motion.”

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See Citizens for Quality Education, 2018 WL 1150836, at *4, *6 (granting

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expedited discovery request) (internal citations and quotations omitted); see also

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American Beverage Assoc. v. City and County of San Francisco, 916 F.3d 749,

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757-58 (9th Cir. 2019) (where plaintiffs have a colorable First Amendment claim,

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they have demonstrated that they likely will suffer irreparable harm) (citing Doe v.

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Harris, 772 F.3d 563, 584 (9th Cir. 2014)). Thus, given that Plaintiff’s motion for

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a preliminary injunction is already pending (with a hearing date just over a month

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away), the possibility that Defendants may file a motion to dismiss Plaintiff’s

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Complaint does not change the analysis.

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2. Pastor Dousa’s Requests are Narrowly Tailored and Reasonable

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Pastor Dousa proposes three narrow document requests. The first request

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seeks documents related to revocation of her SENTRI border-crossing privileges, a

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recent and discrete event. The second request seeks files or “dossiers” Defendants

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maintain on Pastor Dousa. As a U.S. citizen and faith leader with no criminal

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record or unusual international travel habits, there is little reason for Defendants to

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have any, let alone voluminous, documents responsive to this request—and

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Defendants have not provided any meaningful explanation to the contrary. The

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third request seeks records to which Pastor Dousa is legally entitled pursuant to the

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Privacy Act, 5 U.S.C. § 552a, and which, in any event, may overlap entirely with

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the first and second requests.

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3. Defendants Will Not Be Prejudiced or Burdened by the Limited
Discovery Sought

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Finally, responding to Pastor Dousa’s proposed discovery requests will not

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impose any significant burden on Defendants. In light of the specific and narrow

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scope of Pastor Dousa’s requests—each is limited to records created in the last 20

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months and each is likely to include only records maintained in files organized and

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searchable by Pastor Dousa’s name—Defendants should be able to gather

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responsive documents with minimal time and effort. Further, Pastor Dousa already

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has attempted to secure the documents at issue by other means. Over two months

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ago, Pastor Dousa submitted a Privacy Act request, to which Defendants were

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legally required to respond within 20 working days. See 6 C.F.R. § 5.6(c). To

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date, Pastor Dousa has received no substantive response, and Defendants are unable

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even to provide an estimate as to when the agencies’ review will be complete, let

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alone when responsive documents will be produced.6 See Jones Decl. ¶¶ 4, 7.

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Expedited discovery is the only way to ensure that Defendants timely produce these

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documents such that the Court can consider them in adjudicating Pastor Dousa’s

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preliminary injunction motion. Moreover, expedited discovery need not delay the

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hearing on Pastor Dousa’s motion for a preliminary injunction, provided

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Defendants respond in a timely manner. Expedited discovery therefore will not

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prejudice or burden Defendants in any way.
D. Defendants Have No Immediate Need to Depose Pastor Dousa

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Defendants’ suggestion that they should be permitted to take the deposition

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of Pastor Dousa if she is granted expedited discovery (raised for the first time in

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their portion of this briefing) misses the point. Defendants have exclusive control

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of the documents and information that Pastor Dousa is seeking by this motion, and

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the expedited discovery of those documents will aid the Court in deciding whether a

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preliminary injunction is merited. Defendants’ desire to depose Pastor Dousa about

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supposed “inconsistencies” in her declaration does not serve the same purpose—or

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really any immediate purpose.

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Defendants’ suggestion that the Court should be “wary” of allowing discovery in
this case to interfere with the FOIA process is entirely without merit.

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JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE

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In any event, Defendants should not be permitted to depose Pastor Dousa

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more than once. If the Court were to order her deposition on an expedited basis, it

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should also make clear that Defendants will not be permitted another bite at the

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apple later in the litigation.
E. Conclusion

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For the foregoing reasons, Pastor Dousa respectfully requests that the Court

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order Defendants to respond to her proposed document requests and produce

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responsive documents (without withholding based on further objection)7, no later

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than ten days following an order from this Court, or by September 9, 2019,

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whichever is earlier.

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Pastor Dousa requests that the Court order Defendants to respond without further
objection in order to ensure there is no delay in resolving her motion for a
preliminary injunction.

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JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE

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Dated: August 21, 2019

Respectfully submitted,
By: /s/ Oscar Ramallo

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ARNOLD & PORTER KAYE SCHOLER LLP
Oscar Ramallo
oscar.ramallo@arnoldporter.com
R. Stanton Jones (pro hac vice)
stanton.jones@arnoldporter.com
William C. Perdue (pro hac vice)
william.perdue@arnoldporter.com
Ada Añon (pro hac vice)
ada.anon@arnoldporter.com
Christian D. Sheehan (pro hac vice)
christian.sheehan@arnoldporter.com
Jaba Tsitsuashvili (Bar No. 309012)
jaba.tsitsuashvili@arnoldporter.com
Leah J. Harrell (pro hac vice)
leah.harrell@arnoldporter.com
Jean Chang (pro hac vice)
jean.chang@arnoldporter.com
PROTECT DEMOCRACY PROJECT, INC.
Stephanie Llanes (pro hac vice)
stephanie.llanes@protectdemocracy.org
Anne Tindall (pro hac vice)
anne.tindall@protectdemocracy.org
Genevieve Nadeau (pro hac vice)
genevieve.nadeau@protectdemocracy.org
Ben Berwick (pro hac vice)
ben.berwick@protectdemocracy.org
Attorneys for Plaintiff Kaji Dousa

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DEFENDANTS’ POSITION

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I.

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Introduction

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“The government is permitted to engage in legitimate law enforcement
activities such as surveillance and secondary screening at the border.” Plaintiff’s
Mot. for Prelim. Inj., ECF No. 25-1 at 24:20-22. That is exactly what occurred here.

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On January 2, 2019 – one day after Customs and Border Protection (“CBP”)
was forced to use tear gas to deter a large group of migrants attempting to cross the
Mexican border illegally – Plaintiff was subjected to secondary screening at the San
Ysidro port of entry when she returned to the United States. Plaintiff was released
in less than 45 minutes and her Global Entry pass was not revoked or suspended at
that (or any) time. In fact, approximately three months later, Plaintiff crossed into
Mexico and used the same Global Entry pass at the same port of entry upon her
return. Plaintiff’s Global Entry pass remains valid and is not scheduled to expire
until 2022.8

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Plaintiff appears to confuse Global Entry with SENTRI, which are both
components of CBP’s Trusted Traveler Program. Both Global Entry and SENTRI
allow members of those programs expedited entry into the United States from
Mexico and Canada via land ports. Global Entry also links to a member’s passport
and allows expedited entry when flying into the United States. With respect to a
person returning to the United States from Mexico on foot or in an automobile,
Global Entry and SENTRI provide the same expedited clearance benefits. Plaintiff’s
Global Entry pass has never been suspended or revoked. See Declaration of Saro
Oliveri (“Oliveri Decl.”), ¶¶ 3-4. Mr. Oliveri’s search also turned up no evidence
that Plaintiff ever had a SENTRI pass, and Plaintiff has produced no SENTRI
application or SENTRI card to refute this fact. The only document Plaintiff has
produced as evidence of her alleged enrollment in the SENTRI program is one that
contains an image of her photograph with a statement indicating her SENTRI status
has been revoked. But, as Plaintiff concedes, that document was published by a local
news station which claims the image was leaked by an undisclosed internal CBP
source. Because the source of the document is unknown at this time, and discovery
into its origin has not yet begun, the government does not concede that the document
is authentic. Nor does Plaintiff produce any evidence that anyone at CBP has
confirmed its authenticity.
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Given these facts, Plaintiff does not come close to meeting the standard for a

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preliminary injunction, let alone expedited discovery. Specifically, no good cause

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exists for expedited discovery because: (1) there is no immediate threat or

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emergency that justifies a deviation from the normal discovery rules; (2) Plaintiff’s

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complaint is likely subject to a motion to dismiss; (3) Plaintiff’s request that the

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Court order the government to produce documents “without further objection” and

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within 10 days creates a significant burden; (4) some of the information called for in

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Plaintiff’s requests implicates governmental and law enforcement privileges; and (5)

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the government has already voluntarily produced information demonstrating that

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Plaintiff’s Global Entry pass has never been revoked.

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In short, Plaintiff has not suffered any harm, let alone an unconstitutional

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deprivation of rights. Plaintiff remains free to travel to Mexico, practice her religion,

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and voice her opposition to U.S. immigration policy. This lawsuit should therefore

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be subject to the normal discovery rules. In the unlikely event the Court permits

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expedited discovery, however, the government should be allowed to depose Plaintiff

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regarding the contents of the declaration she filed in support of her motion for a

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preliminary injunction.

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A.

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There Is No Immediate Threat Or Emergency Justifying Expedited
Discovery

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Among the factors the Court must consider in determining whether good

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cause for expedited discovery exists is whether the requesting party will suffer harm

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absent a deviation from the normal discovery rules. See Megaupload, Ltd. v.

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Universal Music Grp., Inc., No. 11-CV-6216 CW (JSC), 2012 WL 243687, at *3

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(N.D. Cal. Jan. 25, 2012) (noting courts generally permit early discovery when

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“there is ongoing harm or the evidence sought is in danger of destruction or loss”).

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Here, no imminent threat exists.

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The core allegation at the heart of Plaintiff’s suit – that she was “singled out”

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for secondary screening on January 2, 2019 – occurred more than eight months ago.

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Approximately three months following that event, Plaintiff crossed into Mexico and

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returned through the same port of entry using the same Global Entry pass without

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incident. Oliveri Decl., ¶¶ 5-6. Plaintiff then waited almost four additional months

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before filing this suit. Plaintiff has never been prevented from crossing the border,

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nor does she allege any intent to travel to Mexico in the near future. And even if she

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did, there is no evidence her ability to travel would be impacted. In other words, no

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emergency exists to justify a deviation from the normal discovery rules. See Al Otro

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Lado, Inc. v. Nielsen, No. 17-CV-2366-BAS (KSC), 2019 WL 1057387, at *3 (S.D.

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Cal. Mar. 6, 2019) (denying motion for expedited discovery on similar facts because

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immigrant rights group failed to articulate “any imminent irreparable harm that

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could be prevented by the Court allowing expedited discovery, as opposed to

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discovery conducted under the typical timing requirements of the Federal Rules of

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Civil Procedure”); see also Fuhu, Inc. v. Toys “R” Us, Inc., No. 12-CV-2308-WQH

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(WVG), 2012 WL 12870313, at *3 (S.D. Cal. Oct. 4, 2012) (noting that “if Plaintiffs

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were acting under exigent circumstances as they claim,” Plaintiff’s motion for

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expedited discovery should “have been filed earlier, rather than two weeks after

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discovering the alleged wrongdoing that created the emergency”). 9

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Plaintiff contends she is afraid to cross the U.S.-Mexico border due to the alleged
conduct of CBP. But this assertion is not credible. In fact, Plaintiff recently boasted
on her Twitter feed @KajiDousa that “Because I have a voice and won’t be
intimidated – even by the most powerful government in the world – I am suing #DHS
#ICE #CBP.” See Declaration of Ernest Cordero, Jr. (“Cordero Decl.”), Exhibit 1,
p. 1. Plaintiff also does not shy away from controversy or engagement. Rather, as
evident from her Twitter postings, she is an experienced activist who regularly
networks with organizations seeking to bring about political and social change in
various areas, especially with respect to U.S. immigration policy. Id. The Court may
take judicial notice of the Twitter feed pursuant to Federal Rule of Evidence 201(b).
Dzinesquare, Inc. v. Armano Luxury Allowys, Inc., No. 14-CV-01918-JVS (JCGTx),
2014 WL 12597154, at *3 (C.D. Cal. Dec. 22, 2014).
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The fact that Plaintiff has filed a motion for a preliminary injunction does not

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change this result. Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 (C.D.

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Cal. 2009) (“[E]xpedited discovery is not automatically granted merely because a

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party seeks a preliminary injunction.”). In fact, a review of Plaintiff’s pending

5

motion reveals no missing piece of evidence that Plaintiff believes is necessary to

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prove her entitlement to injunctive relief. See ECF No. 25-1. For this additional

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reason, expedited discovery should be denied.

8

Solutions, Inc., No. 12-CV-1223-WQH (BLM), 2012 WL 2106228, at *2 (S.D. Cal.

9

June 11, 2012) (denying motion for expedited discovery in part because “the Court

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has reviewed [plaintiff’s] motion for preliminary injunction and . . . it does not

11

identify any missing facts or need for discovery”); Fuhu, 2012 WL 12870313, at *3

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(“With Plaintiffs’ concessions that they have all of the information that they need

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for the upcoming TRO hearing, the Court is at a loss to understand why expedited

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discovery is necessary.”).

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B.

See Palermo v. Underground

Plaintiff’s Complaint Is Likely Subject To A Motion To Dismiss

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Expedited discovery is also unwarranted because Plaintiff’s complaint is

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likely subject to a motion to dismiss. Although no response to the complaint is due

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for some time, a preliminary review of Plaintiff’s allegations indicates that Plaintiff

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suffered no actual harm, let alone an unconstitutional deprivation of rights.10

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Moreover, even if Plaintiff could articulate some cognizable injury, Plaintiff’s

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requested relief is so vague that it is legally infirm.

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University of California, 815 F. Supp. 1341, 1345-46 (C.D. Cal. 1993) (granting

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motion to dismiss complaint seeking injunction preventing defendants from

See Van Dyke v. Regents of

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25
26
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10

Notably, the government’s right to conduct searches at an international border is
broad and requires no probable cause. See United States v. Cotterman, 709 F.3d
952, 960 (9th Cir. 2013) (noting that “border searches are generally deemed
‘reasonable simply by virtue of the fact that they occur at the border’”) (citing United
States v. Ramsey, 431 U.S. 606, 616 (1977)).
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interfering with plaintiffs’ religion as vague, overbroad and impossible to enforce).

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Given that Plaintiff’s complaint is likely subject to legal challenge, early discovery

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is particularly unjustified. See Lycurgan, Inc. v. Griffith, No. 14-CV-548-JLS

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(BGS), 2017 WL 2709740, at *5 (S.D. Cal. June 22, 2017) (finding no good cause

5

for expedited discovery in part because “the Court should first be given an

6

opportunity to decide defendants’ pending Motions to Dismiss, which appear to raise

7

potentially valid legal challenges”); Profil Institut Fur Stoffwechselforschung Gmbh

8

v. Profil Institute For Clinical Research, No. 16-CV-2762-LAB (BLM), 2016 WL

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7325466, at *4 (S.D. Cal. Dec. 16, 2016) (“The Court’s resolution of the pending

10

motion to dismiss will significantly impact the scope and permissibility of any

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discovery.”).

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government answers Plaintiff’s complaint, which will give the Court an opportunity

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to evaluate Plaintiff’s requests in the context of what is ultimately at issue. See Pofil

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Institut, 2016 WL 7325466 at *4 (denying expedited discovery in part because

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“Defendant’s answer, when and if filed, will further define the proper scope of

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discovery”).

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C.

At the very least, discovery should not commence until the

Plaintiff’s Requests Present A Significant Burden

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Contrary to Plaintiff’s suggestion, Plaintiff’s discovery requests will also

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create a significant burden at this early stage. Essentially, Plaintiff’s requests require

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the Department of Homeland Security (“DHS”) to produce all documents in its

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“possession, custody, or control” that might refer or relate to Plaintiff. Given the

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size and number of different components contained within DHS, complying with

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this request is not a simple matter that can be carried out “readily and with minimal

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effort.” Moreover, the conditions under which Plaintiff seeks to force DHS to

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respond are extreme. Specifically, Plaintiff asks the Court to enter an order requiring

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the government to comply “without further objection” and within 10 days. There is

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no justification for an order forcing the government to waive all of its objections,

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and compelling DHS to respond within 10 days creates a colossal burden. See

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Palermo, 2012 WL 2106228 at *3 (finding requests unduly burdensome because

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they appear “to be a vehicle to conduct the entirety of [plaintiff’s] discovery prior to

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the Rule 26(f) conference”). Again, Plaintiff fails to demonstrate how she will be

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irreparably harmed if forced to make these document requests under the normal

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rules. See Am. LegalNet, 673 F. Supp. 2d at 1071 (finding no evidence the plaintiff

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“will be irreparably harmed by delaying the broad-based discovery it now requests

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until after the initial conference between the parties under Rule 26(f)”).

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D.

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Plaintiff’s Requests Implicate Governmental And Law Enforcement
Privileges

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Plaintiff’s requests raise additional and significant burdens in the context of

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this case.

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applicable to CBP’s law enforcement mission. See Paco v. United States Customs

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and Border Protection, Civ. No. 14-5017 (MLC), 2016 WL 344522, at *5-6 (D. N.J.

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Jan. 27, 2016) (finding CBP properly withheld information related to the revocation

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of plaintiff’s Global Entry membership on a number of grounds, including FOIA

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exemptions applicable to privacy interests and law enforcement records). This is

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precisely why Plaintiff has yet to receive documents in response to her FOIA

19

request.11 As a result, if discovery is permitted at this early stage, the government

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will be forced to assert a number of privileges, creating an additional burden and

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most likely leading to additional motion practice. See Al Otro Lado, 2019 WL

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1057387 at *3 (denying expedited discovery in part because the proposed discovery

Specifically, Plaintiff’s requests implicate a number of privileges

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The Court should be particularly wary of permitting expedited discovery to the
extent it might conflict with, undermine or circumvent the FOIA process that is
currently underway. See Hines v. United States, 736 F. Supp. 2d 51, 53 (D. D.C.
2010) (noting that exhaustion of FOIA administrative remedies is generally required
before seeking judicial review to prevent premature interference with agency
processes, provide the agency an opportunity to correct errors, and enable an
adequate record for review).
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requests “may implicate qualified privileges that are available to governmental and

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law enforcement agencies” and therefore “place an additional burden on defendants

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in responding”).

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E.

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The Government Has Already Voluntarily Produced Information That
Negates Plaintiff’s Core Allegation

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Setting the lack of good cause aside, Plaintiff’s request for expedited

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discovery should be denied because the government has already voluntarily

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produced information negating the central allegation in Plaintiff’s complaint.

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Specifically, the government voluntarily produced a record of all of Plaintiff’s

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crossings from Mexico into the United States within last 18 months, including

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evidence that Plaintiff’s Global Entry pass is valid and not scheduled to expire until

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2022. Oliveri Decl. at ¶ 4. This information refutes Plaintiff’s allegation that her

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expedited access has been revoked and provides yet another reason to follow the

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normal discovery rules. See Am. LegalNet, 673 F. Supp. 2d at 1070 (finding no good

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cause for expedited discovery in part because evidence proffered by the defense lies

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“in stark contrast to the inference [plaintiff] asks the Court to draw”).

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F.

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If The Court Permits Plaintiff to Conduct Expedited Discovery, the
Government will Request an Order Permitting it to Depose Plaintiff

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Finally, in the event the Court permits Plaintiff to conduct expedited

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discovery, the government will seek an order allowing it to depose Plaintiff on the

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topics contained in her declaration filed in support of her motion for a preliminary

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injunction. A review of that declaration reveals a number of inconsistencies with

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the allegations contained in Plaintiff’s complaint. For example, Plaintiff’s complaint

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states unequivocally that Plaintiff “no longer has access to the expedited screening

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she enjoyed as a SENTRI holder,” yet Plaintiff’s declaration makes no mention of

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ever possessing a SENTRI card and seems to admit that her Global Entry card has

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never been revoked. Compare Compl., ECF No. 1 at ¶ 82 with Plaintiff’s Decl.,

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ECF No. 25-1 at ¶ 27. Plaintiff’s alleged possession and use of a SENTRI card

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purportedly suspended or revoked by CBP is a key assertion underlying her request

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for expedited discovery and a preliminary injunction. For this reason, counsel for the

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government sent Plaintiff’s attorneys an email on August 19, 2019 requesting

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Plaintiff’s production of a copy of her alleged SENTRI card. As set forth in the

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email:

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If Pastor Dousa was issued a SENTRI card as she contends, the best evidence
of this would be the card itself. The documents submitted as part of the joint
motion do not state whether she still has the card or, if not, what happened to
it. Since the alleged SENTRI card is key to the ongoing dispute, I believe the
Court would be interested in knowing the physical card’s status and the last
time Pastor Dousa used the card to enter the U.S. Our information is that even
if she did have a SENTRI card, she has not used it for at least the past 18
months. Hopefully, the Court is not being requested to resolve a dispute that
involves, in part, an alleged SENTRI membership that is of no consequence
because Pastor Dousa uses only her Global Entry card/membership when she
enters the U.S.

16

See Cordero Decl., ¶ 4 and Exhibit 2. The following day, Plaintiff’s attorneys

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responded that they did not agree with the government’s position and did not

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produce a copy of the card. It therefore appears that the only way to obtain

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information from Plaintiff on the status of her SENTRI card is to take her deposition.

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Similarly, Plaintiff’s declaration claims that she “fear[s] travelling across the

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border to Mexico,” yet says nothing about her trip to Mexico in April 2019 or her

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use of her Global Entry pass upon her return. See Plaintiff’s Decl., ECF No. 25-1 at

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¶ 42. The ability to cross examine Plaintiff regarding her alleged fear serves an

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immediate purpose because that alleged fear forms the basis of her claim that she is

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entitled to a preliminary injunction. Plaintiff’s declaration is also replete with vague

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claims of harm and alleged “targeting” of individuals that seem to have little or no

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connection to this case. Id. at ¶¶ 46-52.

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If the Court denies Plaintiff’s request for expedited discovery, the government

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will not need to take Plaintiff’s deposition in advance of the due date for its

5

opposition brief (currently September 9, 2019). But, if Plaintiff is granted expedited

6

discovery, the government will request, and should be permitted, to depose Plaintiff

7

in order to cross examine her on the assertions made in her declaration. See United

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States v. Zerjav, No. 08-CV-00207 ERW, 2008 WL 2486032, at *2 (E.D. Mo. June

9

18, 2008) (recognizing defendants’ need to conduct early discovery and permitting

10

defendants to “depose nine of the eighteen affiants identified in Plaintiff’s motion

11

for a preliminary injunction”). Because this deposition will be limited to the issues

12

raised in Plaintiff’s declaration, the Court should also permit the government to

13

depose Plaintiff more broadly in course of normal discovery, should Plaintiff’s

14

complaint survive the pleading stage.

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II.

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Conclusion

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Plaintiff seeks expedited discovery in this case. But the evidence submitted in

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support of her request, and in opposition, does not support any violation of

19

constitutional rights. That charge is supported solely by Plaintiff’s speculative

20

allegations – not evidence. In fact, this entire lawsuit appears based on a media

21

report regarding an alleged SENTRI pass that Plaintiff never says she had and likely

22

never existed. Moreover, even if Plaintiff did possess a SENTRI pass at some point

23

long ago, Plaintiff does not meet her burden to show good cause for expedited

24

discovery, in part, because she is able to enter the United States with her Global

25

Entry card. Contrary to Plaintiff’s belief, her expedited entry right has not been

26

suspended or revoked.

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JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE

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In sum, there is no reason why discovery cannot proceed in the normal course

2

in this action. That said, in the event the Court permits expedited discovery, the

3

government will request, and should be allowed, to take Plaintiff’s deposition on the

4

topics raised by her declaration prior to its September 9, 2019 deadline to respond

5

to the motion for preliminary injunction. This deposition should not preclude the

6

government from further deposing Plaintiff once it obtains additional information

7

and documents through regular discovery.

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9

DATED:

August 21, 2019

Respectfully submitted,

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ROBERT S. BREWER, JR.
United States Attorney

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s/ Michael Garabed
ERNEST CORDERO, JR
Assistant U. S. Attorney
California Bar No. 131865
E-mail: ernest.cordero@usdoj.gov
MICHAEL A. GARABED
Assistant U.S. Attorney
California Bar No. 223511
E-mail: michael.garabed@usdoj.gov
United States Attorney’s Office
880 Front Street, Room 6293
San Diego, CA 92101-8893
Telephone: (619) 546-7478/7703
Facsimile: (619) 546-7751

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Attorneys for Federal Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2019, I electronically filed the foregoing
with the Court by using the CM/ECF system. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system.
Respectfully,
ARNOLD & PORTER KAYE SCHOLER LLP
/s/ Oscar Ramallo
Oscar Ramallo
oscar.ramallo@arnoldporter.com