Kayvan v. Pompeo

Background

The plaintiffs sued Michael R. Pompeo and others, alleging that the defendants were improperly withholding decisions on case-by-case waivers under Presidential Proclamation 9645. The plaintiffs had filed a motion for a preliminary injunction, scheduled to be heard on February 13, 2020.

The pending motion asked for expedited discovery—early exchange of information before the ordinary discovery process. The plaintiffs wanted to serve four interrogatories, or written questions, concerning what information was still needed for each waiver decision, whether requests had been made to other government agencies, why responses had not been provided, and whether an enhanced automated screening and vetting process had been used. They asked the court to require responses seven days before the preliminary-injunction hearing.

Legal Standard

Federal Rule of Civil Procedure 26(d) generally bars discovery before the parties’ required planning conference unless the rules, an agreement, or a court order allows it. Courts in the Ninth Circuit generally require “good cause” for expedited discovery. The court described good cause as a situation in which the need for early discovery, considering the administration of justice, outweighs the burden or prejudice to the responding party.

The court considered factors including whether a preliminary injunction was pending, the breadth and purpose of the requested discovery, the burden on the defendants, and how early the request was made.

Court’s Analysis

The court first found that the application was procedurally improper because it did not comply with Civil Local Rules 7-1 and 7-10.

The court also found that the plaintiffs had not shown good cause. Although a preliminary-injunction motion was pending, that fact alone did not justify expedited discovery. The court found that responding to the questions would impose a significant burden because the defendants would need to coordinate and compile the review status held by various federal agencies for each waiver applicant. The defendants also represented that some information was protected or classified and that much of it was held by agencies that were not defendants in the case.

The plaintiffs argued that the discovery was relevant to whether the waiver reviews were being unreasonably delayed. The court discussed two similar cases in which courts had allowed expedited discovery, but noted that the discovery in those cases ultimately had little or no relevance to the preliminary-injunction decisions. Those courts had analyzed the delay claims using the six-factor framework for evaluating unreasonable agency delay without relying on the expedited-discovery responses.

Disposition

Judge Edward J. Davila denied the plaintiffs’ ex parte application for expedited discovery. The order did not decide the plaintiffs’ underlying allegations about delayed waiver adjudications or the pending preliminary-injunction motion.