U.S. WeChat Users Alliance v. Trump

Background

The plaintiffs, including U.S. WeChat Users Alliance and individual and business users, use the WeChat mobile-messaging application. They challenge Executive Order 13943, issued on August 6, 2020. According to the plaintiffs, the order would prohibit use of WeChat beginning September 20, 2020. Their complaint alleges violations of the First Amendment’s protection of freedom of speech, the Fifth Amendment’s equal-protection and due-process clauses, and the Religious Freedom Restoration Act. They also challenge the order as exceeding presidential authority under the International Economic Emergency Powers Act and as violating other statutes.

The plaintiffs had moved for a preliminary injunction, meaning an order temporarily blocking the challenged action, with a hearing set for September 17, 2020. They separately sought expedited discovery before the parties’ usual initial discovery conference. Their request sought “all evidence” supporting the factual bases for Executive Order 13943, later limited to documents generated through August 6, 2020. The plaintiffs said the documents would help them respond to the government’s opposition, including possible arguments that national-security threats justified the order.

Governing Standard

Under Federal Rule of Civil Procedure 26(d), a court may permit discovery before the parties’ Rule 26(f) conference when doing so would serve the parties’ and witnesses’ convenience and the interests of justice. Courts in the Ninth Circuit generally require a showing of “good cause.” The court identified five relevant considerations: whether a preliminary-injunction motion is pending, the breadth of the request, the request’s purpose, the burden on the defendants, and how far the request precedes the normal discovery process. The court considers the reasonableness of the request under all the surrounding circumstances.

Analysis

The court denied the request on the record before it. It found that the request was broad, even though the plaintiffs had limited it to documents generated through August 6, 2020. The defendants had filed their opposition to the preliminary-injunction motion and, on the court’s quick review, appeared to rely on public information as they had promised. The court also concluded that addressing privilege issues on the existing schedule was not practicable. In addition, the relationship between the executive order and the Commerce Secretary’s eventual final agency action supported the government’s proposed approach of waiting for that action. Finally, the court found that the existing record permitted consideration of the issues at the September 17 hearing.

Disposition

The court denied the plaintiffs’ request for expedited discovery and stated that this disposed of ECF No. 18. The order did not decide the plaintiffs’ constitutional, statutory, or ultra vires challenges to Executive Order 13943.