IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

THE DAILY WIRE, LLC; 

FDRLST MEDIA, LLC; and

THE STATE OF TEXAS, by and through its 

Attorney General, Ken Paxton, 

Plaintiffs,

v.

DEPARTMENT OF STATE;

GLOBAL ENGAGEMENT CENTER;

ANTONY BLINKEN, in his official capacity as 

Secretary of State;

LEAH BRAY, in her official capacity as Deputy 

Coordinator of the State Department’s Global 

Engagement Center;

JAMES P. RUBIN, in his official capacity as 

Coordinator for the Global Engagement Center of the 

State Department;

DANIEL KIMMAGE, in his official capacity as the 

Principal Deputy Coordinator for the Global 

Engagement Center at the State Department;

ALEXIS FRISBIE, in her official capacity as Senior 

Technical Advisor of the Technology Engagement 

Team for the Global Engagement Center at the State 

Department;

PATRICIA WATTS, in her official capacity as the 

Director of the Technology Engagement Team at the 

Global Engagement Center at the State Department,

Defendants. 

Civil Action No.: 6:23-cv-00609

PLAINTIFFS’ REPLY IN 

SUPPORT OF MOTION FOR 

EXPEDITED PRELIMINARYINJUNCTION-RELATED 

DISCOVERY 

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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................ ii

TABLE OF AUTHORITIES..........................................................................................................iii

I. THE GOVERNMENT MISREPRESENTS THE COMPLAINT......................................................... 1

II. THE STATE DEPARTMENT’S JURISDICTIONAL AND VENUE ARGUMENTS ARE 

IRRELEVANT TO THE MOTION TO EXPEDITE DISCOVERY...................................................... 2

III. GOOD CAUSE EXISTS FOR EXPEDITED DISCOVERY. ............................................................. 3

CONCLUSION............................................................................................................................... 5

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iii

TABLE OF AUTHORITIES

Page(s) 

Cases

Amos v. Taylor, 

No. 20-cv-7, 2020 WL 5809972 (N.D. Miss. Aug. 26, 2020) ..................................................... 4 

Badon v. U.S. Dep’t of Agric., 

No. 20-cv-460, 2021 WL 3201367 (M.D. La. July 28, 2021) ..................................................... 2 

Ellsworth Assocs., Inc. v. United States, 

917 F. Supp. 841 (D.D.C. 1996) .................................................................................................. 3 

Elrod v. Burns, 

427 U.S. 347 (1976) .................................................................................................................... 4 

Halcyon Biomed v. Glatt Air Tech., 

No. H-19-690, 2019 WL 2420232 (S.D. Tex. June 10, 2019)..................................................... 5 

Laufer v. Patel, 

No. 20-cv-631, 2021 WL 327704 (W.D. Tex. Feb. 1, 2021) ....................................................... 2 

Missouri v. Biden, 

No. 3:22-CV-01213, 2022 WL 2825846 (W.D. La. July 12, 2022) ............................................ 5 

NetChoice, L.L.C. v. Paxton, 

49 F.4th 439 (5th Cir. 2022) ........................................................................................................ 2 

Netchoice, LLC v. Paxton, 

216 L. Ed. 2d 1313 (Sept. 29, 2023) ........................................................................................... 2 

Smith v. Potter, 

400 F. App’x 806 (5th Cir. 2010) ................................................................................................ 2 

Texas v. Dep’t of Homeland Sec., 

661 F.Supp.3d 683 (S.D. Tex. 2023) ........................................................................................... 3 

Texas v. EEOC, 

933 F.3d 433 (5th Cir. 2019) ....................................................................................................... 3 

Willey v. Harris County District Attorney, 

27 F.4th 1125 (5th Cir. 2020) ...................................................................................................... 3 

Rules

Fed. R. Civ. P. 26 ............................................................................................................................. 3 

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Other Authorities

Letter from H. Comm. on Small Bus. to Global Engagement Center (Feb. 16, 2024)................... 4

Letter from H. Comm. on Small Bus. to Global Engagement Center (Jan. 8, 2024) ..................... 4

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PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR EXPEDITED DISCOVERY

I. THE GOVERNMENT MISREPRESENTS THE COMPLAINT

Defendants’ response presents two arguments against expedited discovery, both of which 

lack merit. Initially, though, Plaintiffs must respond to the government’s misleading presentation 

of the case. The Complaint and the Motion for Preliminary Injunction both make clear Plaintiffs 

seek only to enjoin Defendants from engaging in specific activities that target “the lawful speech 

of the American press and Americans.” Compl. at 68, ECF 1. It should be uncontroversial that the 

State Department cannot target Americans’ speech because its authority is limited to foreign 

affairs—Congress expressly limited the Global Engagement Center to countering foreign 

misinformation. Yet Defendants inaccurately portray Plaintiffs’ requested relief as “sweeping,”

Resp. 1, and “extraordinarily broad,” Resp. 12, by deceptively omitting “the American press and 

Americans” language in its discussion of the relief requested by Plaintiffs.

Defendants also inaccurately frame Plaintiffs’ suit as challenging “two agency grants that 

date back to 2020 and 2021” and agency actions performed on its since retired Disinfo Cloud 

platform,

1 Resp. 1—a tacit admission the State Department exceeded its foreign affairs’ mandate,

and a suggestion relief is no longer needed because it no longer does so. The Complaint, however, 

is not premised on two illegal grants or the now shuttered Disinfo Cloud, but rather on Defendants’ 

still-ongoing censorship scheme that suppresses disfavored domestic speech “by funding the 

infrastructure, development, and marketing and promotion of censorship technology and private 

censorship enterprises.” Compl. ¶¶ 1, 160-180, ECF 1. That Defendants “retired” Disinfo Cloud 

1 See also Resp. 2 (The suit “complains primarily of conduct from several years earlier[.]”); Resp. 4 (The 

Complaint relies on “allegations of past conduct by Defendants[.]”); Resp. 9 (“Media Plaintiffs raise First 

Amendment claims based primarily on past alleged conduct[.]”).

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is irrelevant because the censorship scheme continues, the Silicon Valley office remains in 

operation, and so does the blacklisting Defendants implemented through Disinfo Cloud: 

Defendants just use a different platform and contractors, which is precisely why discovery is 

needed.

II. THE STATE DEPARTMENT’S JURISDICTIONAL AND VENUE ARGUMENTS ARE 

IRRELEVANT TO THE MOTION TO EXPEDITE DISCOVERY.

Defendants’ main argument is that there is no basis for expedited discovery because “the 

Complaint fails to demonstrate both subject-matter and proper venue.” Resp. 3. In essence, 

Defendants are asking this Court to stay the proceedings. Resp. 2 (“[N]o expedited discovery (or 

any other litigation activity) should proceed in this Court because this District is not a proper 

venue, . . .”). Defendants even cite decisions involving stays of discovery—none of which involved 

pending preliminary injunction motions.

2 This Court has already considered and rejected the 

government’s motion for a general stay which presented the same venue and standing arguments. 

ECF 15. Defendants are not entitled to a second bite of the apple and, thus, the Court should 

consider only whether good cause exists to order expedited discovery.

However, should the Court consider Defendants’ rehashing of its Motion to Stay, it should 

reject the government’s arguments. First, the Fifth Circuit has upheld the constitutionality of HB 

20, and to accept Defendants’ argument that there is no imminent harm to Texas’s sovereign 

interests would require this Court to inappropriately speculate that the Supreme Court will reverse 

that decision. NetChoice v. Paxton, 49 F.4th 439, 445–46 (5th Cir. 2022), cert. granted in part sub 

2 Defendants rely on the same trio of cases it cited in arguing against discovery in Missouri v. Biden, namely 

Smith v. Potter, 400 F. App’x 806, 813 (5th Cir. 2010), Badon v. U.S. Dep’t of Agric., 2021 WL 3201367, at 

*2 (M.D. La. July 28, 2021), and Laufer v. Patel, 2021 WL 327704, at *2 (W.D. Tex. Feb. 1, 2021). As 

Plaintiffs established in Missouri v. Biden, those cases are inapposite because none involved a pending 

preliminary-injunction motion for which discovery was needed to prevent irreparable injury.

Case 6:23-cv-00609-JDK Document 23 Filed 02/28/24 Page 6 of 11 PageID #: 680
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nom., 216 L. Ed. 2d 1313 (Sept. 29, 2023). See Willey v. Harris County D.A., 27 F.4th 1125, 1130 

n.9 (5th Cir. 2020) (courts must presume the constitutionality of legislative enactments). HB 20’s 

private enforcement provisions also have never been enjoined. Finally, contrary to Defendants’ 

cramped view of a state’s sovereign interests, Texas’s interest in passing and enforcing laws 

extends beyond bringing enforcement actions to include efforts by the state to maintain compliance 

with its laws. See Texas v. EEOC, 933 F.3d 433 (5th Cir. 2019). Preventing viewpoint 

discrimination by common carriers in violation of HB 20 in the first instance—something 

Defendants’ ultra vires censorship scheme causes—is squarely within Texas’s sovereign interests 

in maintaining compliance with its laws. See id. Accordingly, Texas has standing to challenge the 

State Department’s ultra vires actions. And venue is proper in both Texas and the Eastern District 

of Texas. See Texas v. Dep’t of Homeland Sec., 661 F.Supp.3d 683 (S.D. Tex. 2023). 

III. GOOD CAUSE EXISTS FOR EXPEDITED DISCOVERY. 

Defendants’ argument that Plaintiffs have failed to demonstrate good cause for expedited 

discovery fares no better because the “good cause” factors overwhelmingly support Plaintiffs’ 

motion.

3 First, “[e]xpedited discovery is particularly appropriate when a plaintiff seeks injunctive 

relief because of the expedited nature of injunctive proceedings,” Ellsworth, 917 F. Supp. at 844, 

and Plaintiffs’ motion for a preliminary injunction is now pending. ECF 11. Defendants’ response 

is to blame Plaintiffs for not having sought injunctive relief sooner, but the State Department’s 

censorship scheme only recently became known, and since then Plaintiffs have moved with all 

3 Defendants inaccurately frame expedited discovery as “extraordinary,” Resp. 1, “rare,” Resp. 7, and 

limited to cases where “exigent need” exists. Resp. 3. While not the norm, there is nothing “extraordinary” 

or “rare” about such discovery, with the Federal Rules of Civil Procedure expressly providing for it and 

with courts “routinely grant[ing] expedited discovery in cases involving challenges to constitutionality of 

government action.” Ellsworth Assocs., Inc. v. United States, 917 F. Supp. 841, 844 (D.D.C. 1996). And the 

rules establish “good cause” not “exigent need” as the controlling standard. Fed. R. Civ. P. 26(d)(1). 

Case 6:23-cv-00609-JDK Document 23 Filed 02/28/24 Page 7 of 11 PageID #: 681
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expediency consistent with their affirmative duty to support their claims. Defendants’ argument 

that there is no irreparable harm to justify expedited discovery is further misplaced because it relies 

on the false premise that the Complaint is “based primarily on past alleged conduct.” Resp. 9. 

The second good cause factor also favors Plaintiffs, as only limited discovery relevant to 

the pending motion for a preliminary injunction is sought. Defendants’ sole response here consists 

of speculation that Plaintiffs “might” seek overbroad discovery. Defendants ignore, however, that 

Plaintiffs have expressly limited their request for third-party subpoenas to five, and that Defendants 

may object to the discovery served upon them if they believe the request overbroad. This procedure 

ensures the discovery is narrow. See Amos v. Taylor, No. 20-cv-7, 2020 WL 5809972 at *9 (N.D. 

Miss. Aug. 26, 2020) (discovery request is narrow and supports finding of good cause where Court 

establishes process for opposing party to raise objections at later time).

The third factor, the purpose of the expedited discovery, also supports Plaintiffs’ motion.

While Defendants argue Plaintiffs should have investigated more prior to suing—ironic, really, 

given they also complain Plaintiffs moved too leisurely in filing the complaint, Resp. 8—the 

detailed evidence submitted with the preliminary injunction motion shows Plaintiffs dutifully 

exhausted all publicly available resources. Discovery is needed to understand how Defendants’ 

current censorship scheme operates—something the State Department is concealing even from 

Congress!4 And it is that censorship scheme that harms the Media Plaintiffs regardless of any lost 

revenue because “the loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

5

4 Letter from H. Comm. on Small Bus. to Global Engagement Center (Jan. 8, 2024). Exh 1; Letter from H. 

Comm. on Small Bus. to Global Engagement Center (Feb. 16, 2024). Exh 2 (chastising State Department 

for ignoring Congressional requests and seeking copy of “2023.02.14 GEC-GDI-BLACKLIST.docx”).

5 Defendants also suggest discovery should be ordered of Plaintiffs, but they failed to move for discovery 

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The burden on Defendants is also slight, first because the discovery is narrow and involves 

isolated divisions of the State Department—GEC and the Technology Engagement Team. Second, 

much of the information can be made available to Plaintiffs by providing access to Disinfo Cloud: 

Surely, the Government is not representing to the Court that it lacks control over the platform for 

which it paid over a million dollars. Third, the discovery sought would be required later in any 

event. The State Department, which has invested millions to operate its wide-ranging censorship 

scheme that targets Americans, should not be heard to complain of the burden of complying with 

discovery. Finally, any burden must be balanced against the irreparable harm to Plaintiffs, which 

is particularly acute as it violates Media Plaintiffs’ core First Amendment rights and Texas’s

sovereign interests in “protecting the free exchange of ideas and information[.]” HB 20 §1(2).

6

Thus, while discovery has been requested early on, the totality of the factors support Plaintiff’s 

request, just as was the case in Missouri v. Biden. Inexplicably, Defendants claim Missouri v. Biden, 

2022 WL 2825846 at *5 (W.D. La. July 12, 2022), does not support Plaintiffs’ motion because 

“discovery in that case was neither expedited nor narrow,” Resp. 12, but the Court granted 

Plaintiffs discovery in that case, making Plaintiffs much narrower request here doubly justified.

CONCLUSION

For all these reasons, Plaintiffs respectfully request this Court grant their motion.

DATED: February 28, 2024 Respectfully submitted,

and Plaintiffs’ claims are premised on the harm to their First Amendment and sovereign interests— not lost 

revenues, which are not sought in this litigation, making such discovery irrelevant and, if pursued, abusive. 6 Defendants suggest this Court cannot consider the First Amendment harm to Media Plaintiffs because 

there is no venue over those claims. Defendants’ Motion to Transfer did not contest venue over those claims, 

however, and such a challenge would fail because pendent venue clearly exists. See Halcyon Biomed v. 

Glatt Air Tech., 2019 WL 2420232 at *8 (S.D. Tex. June 10, 2019) (explaining pendent venue allows a 

court to hear claims arising out of a common nucleus of operative facts). Further, Plaintiff The Daily Wire 

LLC is a Texas company, incorporated in Texas and with a registered address in the state of Texas.

Case 6:23-cv-00609-JDK Document 23 Filed 02/28/24 Page 9 of 11 PageID #: 683
6 

/s/ Margaret A. Little

Margaret A. Little

Lead Attorney

Senior Litigation Counsel 

Connecticut Bar # 303494 

NEW CIVIL LIBERTIES ALLIANCE 

1225 19th Street NW, Suite 450 

Washington, DC 20036 

Telephone: (202) 869-5210 

Facsimile: (202) 869-5238 

Peggy.Little@ncla.legal

/s/ Margot J. Cleveland 

Margot J. Cleveland, 

Of Counsel 

Michigan Bar #P83564 

NEW CIVIL LIBERTIES ALLIANCE

Margot.Cleveland@ncla.legal 

/s/ Casey Norman

Casey Norman*

Pro hac vice forthcoming 

Litigation Counsel 

New York Bar #5772199 

Casey.Norman@ncla.legal

Attorneys for Plaintiffs the Daily Wire 

Entertainment LLC and FDRLST Media LLC 

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General of Texas

GRANT DORFMAN

Deputy First Assistant Attorney General of 

Texas

RALPH MOLINA

Deputy Attorney General for Legal Strategy 

RYAN D. WALTERS

Chief, Special Litigation Division

/s/ Susanna Dokupil

SUSANNA DOKUPIL

Lead Attorney 

Special Counsel

Texas State Bar No. 24032801 

AMY S. HILTON

Special Counsel

Texas State Bar No. 24097834 

JOHNATHON STONE

Special Counsel

Texas State Bar No. 24071779 

Office of the Attorney General of Texas

P.O. Box 12548 (MC 009) 

Austin, TX 78711-2548 

Phone: (512) 936-3754 

FAX: (512) 457-4410 

Susanna.Dokupil@oag.texas.gov

Amy.Hilton@oag.texas.gov

Johnathon.Stone@oag.texas.gov 

Attorneys for Plaintiff the State of Texas

Case 6:23-cv-00609-JDK Document 23 Filed 02/28/24 Page 10 of 11 PageID #: 684
CERTIFICATE OF SERVICE

 I hereby certify that on February 28, 2024, I electronically filed the foregoing document 

with the United States District Clerk for the Eastern District of Texas and electronically served 

all counsel of record via the District Court’s ECF system. 

 /s/ Margot J. Cleveland 

Case 6:23-cv-00609-JDK Document 23 Filed 02/28/24 Page 11 of 11 PageID #: 685