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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

Civil Action No. 6:23-cv-00609 (JDK)

JOINT DISCOVERY PLAN AND PROPOSED SCHEDULE

Pursuant to Federal Rules of Civil Procedure 16(b) and 26(f), and the Court’s May 7, 2024 

Order for Proposed Schedule, ECF No. 55, the parties conferred by email on May 22, 30, and 31, and 

telephonically on May 23 and 29, 2024, and hereby submit this joint discovery plan and proposed 

schedule for disposition of this case.

1. DISCOVERY PLAN

a. Brief statement of claims and defenses. This action commenced on December 6, 2023. 

Plaintiffs are the State of Texas and two media companies alleging that the U.S. Department of State, 

through its Global Engagement Center, has abridged Media Plaintiffs’ rights to Freedom of Speech 

and Freedom of the Press by funding and assisting in the development of, marketing, and/or 

promoting “censorship technologies”—in particular, the censorship-by-risk-rating technology and 

related entities—that is used to censor Media Plaintiffs’ speech. See ECF No. 1 ¶ 274, 279. The 

Complaint raises claims under the First Amendment (Counts I and II), as well as claims alleging agency 

action in violation of Constitutional and statutory authority (Counts III-V). On February 6 and 

February 7, respectively, Plaintiffs moved for a preliminary injunction and for expedited preliminaryinjunction-related discovery. ECF Nos. 11 & 13. Defendants opposed those motions and, in turn, 

moved to transfer venue and to dismiss the Complaint for lack of jurisdiction, principally arguing that 

THE DAILY WIRE, LLC et al., 

Plaintiffs

v.

UNITED STATES DEPARTMENT

OF STATE et al., 

Defendants.

Case 6:23-cv-00609-JDK Document 60 Filed 05/31/24 Page 1 of 10 PageID #: 1994
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Plaintiffs lack Article III standing. ECF Nos. 14 & 33. Following a hearing on April 23, 2024, the 

Court denied Defendants’ motion to transfer venue, denied Defendants’ motion to dismiss the 

Complaint in principal part (but granted the motion to dismiss CountIV for lack of final agency action),

and granted Plaintiffs’ motion for expedited preliminary-injunction-related discovery. 1 See ECF Nos. 

53 & 54. Accordingly, there are four remaining claims: Counts I and II (First Amendment); Count III 

(ultra vires non-final agency action beyond statutory authority); and Count V (ultra vires action beyond 

Constitutional authority). Plaintiffs’ motion for preliminary injunction remains pending. ECF No. 11.

b. Expedited Discovery and Regular Discovery:

The Court granted Plaintiffs’ expedited preliminary-injunction-related discovery motion and 

entered an Order adopting Plaintiffs’ proposed schedule for expedited discovery followed by

supplemental briefing for Plaintiffs’ Motion for Preliminary Injunction. ECF No. 54. However, that 

schedule does not address the time required for Defendants to locate, collect, and review documents for 

responsiveness and privilege, nor does it set a final date (or any interim dates) by which Defendants must 

produce the documents sought in the expedited portion of discovery. Also, the Court’s Order allows for 

Regular Discovery (i.e. Rule 26 discovery) to proceed simultaneously with expedited discovery.

Given the abbreviated timeframe for Defendants to respond to expedited discovery and complete 

supplemental briefing on the Motion for Preliminary Injunction, the Parties agree that, absent leave of the 

Court, further written discovery requests by Plaintiffs to Defendants should await the conclusion of the 

expedited discovery process and the conclusion of any commensurate supplemental briefing on the Motion 

for Preliminary Injunction. Further, given Plaintiffs’ anticipated receipt of responses to the subpoenas 

Plaintiffs have served and the abbreviated time for Plaintiffs to review the document productions, address 

any discovery issues, and determine the need for depositions during the expedited discovery, the parties 

agree to facilitate Plaintiffs’ timely review of produced documents, including through rolling productions 

of documents and conferring regarding any necessary and reasonable extension of time for Plaintiffs to 

1 Following the Court’s grant of Plaintiffs’ motion for expedited preliminary-injunction-related discovery, Plaintiffs served 

on Defendants 14 requests for production of documents and 8 interrogatories. Plaintiffs also served Fed. R. Civ. P. 45

subpoenas seeking documents from five third parties: Disinformation Index, Inc. (“GDI”), Logically AI, Inc., Meta 

Platforms, Inc. (“Facebook”), Park Capital Investment Group, LLC, and X Corporation (“Twitter”). The subpoenas 

together present a total of 47 requests for production of documents from the third parties.

Case 6:23-cv-00609-JDK Document 60 Filed 05/31/24 Page 2 of 10 PageID #: 1995
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respond to the standard Rule 26 discovery. 

The Parties also agree that they will work together to significantly narrow Plaintiffs’ requested 

expedited discovery. Defendants represent that their initial searches, which applied Plaintiffs’ list of more 

than 100 discrete search terms to approximately 50 Department custodians (with the exceptions of the 

terms “GEC” and “Global Engagement Center,” which appear in GEC employees’ signature lines and 

thus would have captured essentially every e-mail sent by a GEC employee), yielded more than 

approximately 1.2 million e-mails (not including and attachments). Defendants further represent that they 

cannot process 1.2 million documents, or any significant percentage of that number, within the highly 

expedited timeline proposed in the schedule below for completion of their document productions. The 

parties agree to make efforts to significantly narrow expedited discovery, including by shifting some portion 

of the production requests to the period of Regular Discovery and working to agree on a limited number 

of State Department custodians and a reasonable set of search terms and phrases for expedited discovery.

Should the parties be unable to reach agreement on appropriate narrowing measures, or should it otherwise 

become impracticable for Defendants to meet the agreed timeline for completing document productions

(due to, for instance, delays caused by discovery disputes), the parties agree to confer regarding any 

necessary and reasonable extension of the discovery schedule and report to the Court. Finally, in addition 

to the meet and confer processes set forth in the schedule below, the parties agree to raise discovery 

disputes promptly as they arise and to work together to either resolve the disputes as quickly as possible or 

to bring the issues to the Court for resolution in a timely manner.

Following the Court’s decision on Plaintiffs’ Motion for Preliminary Injunction, the parties agree 

that a six-month period to complete all remaining fact discovery is appropriate. However, the parties will 

confer to determine whether that period will begin immediately following the Court’s decision or whether 

it will be placed on hold pending the resolution of any appeal.

c. Disposition of Case:

The parties submit that this case will likely be resolved on either motions for summary

judgment or a bench trial.

d. Statement of jurisdiction. The Complaint alleges subject-matter jurisdiction under 28 

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U.S.C. § 1331. ECF No. 1 ¶ 7. Defendants agree that Plaintiffs’ claims arise under the Constitution and federal laws, 

however, Defendants do not agree that the Court has subject-matter jurisdiction over this case because, in Defendants’ 

view, Plaintiffs lack Article III standing.

e. Statement concerning the possibility of settlement. The parties agree that there is no 

reasonable possibility of promptly settling this case.

f. Changes to the timing, form, or requirement for disclosures under Rule 26(a)(1) 

(including when disclosures will be made). The parties agree that they should not dispense with 

the initial disclosures required by Fed. R. Civ. P. 26(a)(1), that no changes should be made to the form 

of those disclosures, and that the disclosures should be made by June 14, 2024.

g. Subjects on which discovery may be needed, when discovery should be completed, 

and whether discovery should be conducted in phases or limited or focused on particular 

issues.

Plaintiffs’ Anticipated Discovery from Defendants: Plaintiffs anticipate seeking additional 

discovery from Defendants related to their funding and assisting in the development of, marketing, 

and/or promotion of censorship technologies that affect the circulation of Media Plaintiffs’ speech 

and/or that impact the enforceability of Texas H.B. 20. 

Plaintiffs’ Anticipated Discovery from Third Parties: Plaintiffs anticipate seeking additional 

discovery from Third Parties related to funding and collaboration with Defendants in the development 

of, marketing, and/or promotion of censorship technologies that affect the circulation of Media 

Plaintiffs’ speech and/or that impact the enforceability of Texas H.B. 20 

Defendants’ Anticipated Discovery from Plaintiffs: Defendants anticipate seeking discovery 

from each Plaintiff on the subjects of: (1) Article III standing, and in particular Plaintiffs’ asserted 

injuries; (2) the allegations related to each of the remaining claims in the Complaint; and (3) each of the

requested forms of relief. To those ends, Defendants anticipate serving on Plaintiffs requests for 

production of documents, interrogatories, requests for admissions, and notices of deposition.

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h. Disclosure, discovery, or preservation of electronically stored information (“ESI”): The

parties agree to work cooperatively to develop an ESI protocol that will provide for the forms of 

disclosure of discovery and to submit the protocol to the Court by June 14, 2024.

i. Claims of privilege or of protection as trial-preparation materials. The parties agree that 

a protective order and clawback order are needed in this case. They will work cooperatively to submit 

these proposed orders to the Court by June 14, 2024. 

j. Expert disclosures. The parties request that the time for expert disclosures and discovery 

be set in accordance with the proposed schedule below.

k.Changes to discovery limitations. The parties agree the 10 depositions allowed per side 

under Fed. R. Civ. P. 30(a)(2)(A)(i) excludes expert depositions. The parties also agree that requests 

for production of documents or for admission be limited to 30 requests of each type per side, but 

agree to confer regarding any necessary and reasonable revision of this limit after the close of the 

expedited discovery period. The parties further agree that the limit on interrogatories provided in Fed. 

R. Civ. P. 33(a)(2) be 25 interrogatories per side. 

l. Whether the case should be assigned to a magistrate judge for any purposes. The 

parties do not believe this case should be assigned to a magistrate judge for any purposes.

m. Whether the case could benefit from Alternative Dispute Resolution (“ADR”) 

procedures. At this time, the parties do not believe this matter would be suitable for ADR procedures.

2. PROPOSED SCHEDULE

[PROPOSED] SCHEDULING ORDER

May 31, 2024 Parties file joint report of attorney conference

June 10, 2024 Defendants serve written responses and objections to RFPs and 

Interrogatories served by Plaintiffs on May 9, 2024

June 14, 2024 Parties exchange Rule 26(a)(1) Initial Disclosures and file

Proposed Protective Order, Clawback Agreement, and ESI 

Protocol

No later than June 20, 2024 Parties begin meet and confer over any discovery disputes 

regarding Defendants’ written responses and objections to the 

RFPs and Interrogatories; Parties will confer and, if needed,

provide joint statement to Court on unresolved discovery 

disputes within one week of completing conferral process

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July 12, 2024 Defendants Begin Rolling Production of Documents Responsive 

to Expedited RFPs. Defendants will produce privilege logs on a 

rolling basis. The Parties agree that privileged communication 

between the parties’ litigation counsel and their clients occurring 

after this suit commenced, or amongst agency litigation counsel 

discussing matters related to this litigation, may be excluded from 

privilege logs.

September 1, 2024, or 30

days before Defendants 

complete production of 

documents responsive to 

Expedited RFPs, whichever 

is later

Answer due

September 30, 2024 All documents and privilege logs from Expedited RFPs produced

Within 10 days after 

Defendants complete 

production of documents 

responsive to Expedited 

RFPs

Parties begin meet and confer over any discovery disputes 

regarding Defendants’ expedited document production; Parties 

will confer and, if needed, provide joint statement to Court on 

unresolved discovery disputes within one week of completing 

conferral process

Within 10 days after 

Defendants complete 

production of documents 

responsive to Expedited 

RFPs

Plaintiffs provide Defendants notice of intent to seek 

depositions or additional third-party subpoenas for preliminary 

injunction

Within 17 days after 

Defendants complete 

production of documents 

responsive to Expedited 

RFPs

Parties begin meet and confer regarding Plaintiffs’ notice of intent 

to seek depositions or additional third-party subpoenas for 

preliminary injunction; Parties will confer and, if needed, submit 

separate statements to Court

TBD by Court If needed, Court decision on depositions, additional third-party 

subpoenas, or other outstanding preliminary injunction 

discovery disputes

Within 10 days after 

agreement or order regarding 

Plaintiffs’ notice seeking

expedited depositions and 

additional subpoenas

Plaintiffs serve additional third-party subpoenas, if needed

Within 30 days after

agreement or order regarding 

Plaintiffs’ notice seeking 

expedited depositions and 

additional subpoenas

Preliminary injunction depositions completed, if needed

21 days after preliminary 

injunction depositions

Plaintiffs’ supplemental memorandum in support of preliminary 

injunction due

21 days after Supplemental 

Memorandum

Defendants’ supplemental response due

Case 6:23-cv-00609-JDK Document 60 Filed 05/31/24 Page 6 of 10 PageID #: 1999
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7 days after Supplemental 

Response

Plaintiffs’ supplemental reply due

Within 30 days after 

Completion of Supplemental 

Preliminary Injunction

Briefing

Parties confer regarding completion of Rule 26 and Third-Party 

discovery, including potential need for periodic status 

conferences, whether the anticipated six months from 

Preliminary Injunction ruling is adequate for completing 

discovery, and whether the limits on discovery need to be 

adjusted; Parties will also confer as needed if Plaintiffs propose 

to amend complaint

45 days after Completion of

Supplemental Preliminary 

Injunction Briefing

Deadline for Plaintiffs to file amended pleadings (assuming 

Defendants’ consent or leave of court is given)

TBD Hearing on motion for preliminary injunction

TBD Ruling on motion for preliminary injunction

6 months after Ruling on 

Preliminary Injunction

Fact discovery completed

14 days after Completion of 

Fact Discovery

Deadline for Plaintiffs’ case-in-chief expert reports and 

disclosures pursuant to Federal Rules of Civil Procedure 

26(a)(2)(B) and 26(a)(2)(C). 

75 days after Completion of 

Fact Discovery

Deadline for Defendants’ rebuttal or case-in-chief expert reports 

and disclosures pursuant to Federal Rules of Civil Procedure 

26(a)(2)(B) and 26(a)(2)(C). 

105 days after Completion of 

Fact Discovery

Deadline for Plaintiffs’ rebuttal expert report and disclosures, if 

any.

135 days after Completion of 

Fact Discovery

Expert discovery completed

No later than 30 days after 

Completion of Expert 

Discovery

Deadline for Plaintiffs’ motion for summary

judgment or other dispositive motions, if any

No later than 60 days after 

Completion of Expert 

Discovery

Deadline for Defendants’ response to Plaintiffs’ dispositive 

motion(s) and for Defendants’ motion for summary

judgment or other dispositive motions, if any

No later than 90 days after 

Completion of Expert 

Discovery

Deadline for Plaintiffs’ summary judgment reply and response 

to Defendants’ dispositive motion(s)

No later than 120 days after 

Completion of Expert 

Discovery

Deadline for Defendants’ summary judgment reply

TBD Summary Judgment Hearing or Evidentiary Bench Trial

If any of these dates fall on a weekend or Court holiday, the deadline is modified to be the next 

Court business day. Also note that all deadlines in this order are for filing or delivery, not mailing

dates.

Case 6:23-cv-00609-JDK Document 60 Filed 05/31/24 Page 7 of 10 PageID #: 2000
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A proposed Order reflecting this schedule is attached.

Dated: May 31, 2024 Respectfully submitted, 

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

JAMES J. GILLIGAN

Special Litigation Counsel 

Federal Programs Branch

JOSHUA E. GARDNER

Special Counsel

Federal Programs Branch

/s/ Cristen C. Handley (by permission)

DOROTHY M. CANEVARI (NY # 5989694) 

CRISTEN C. HANDLEY (MO # 69114) 

ARJUN MODY (DC #90013383)

Trial Attorneys

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W.

Washington, D.C. 20005 

Tel: 202-305-2677

Email: cristen.handley@usdoj.gov

Counsel for Defendants

KEN PAXTON /s/ Jenin Younes

Attorney General JENIN YOUNES

Lead Attorney

BRENT WEBSTER NY Bar No. 5020847

First Assistant Attorney General jenin.younes@ncla.legal

RALPH MOLINA

Deputy Attorney General for Legal Strategy MARGOT J. CLEVELAND

Michigan Bar No. 83564

RYAN D. WALTERS margot.cleveland@ncla.legal

Chief, Special Litigation Division

ZHONETTE M. BROWN

/s/ Susanna Dokupil (by permission) D.C. Bar No. 463407

SUSANNA DOKUPIL zhonette.brown@ncla.legal

Attorney in Charge

Special Counsel

Texas Bar No. 24034419

Case 6:23-cv-00609-JDK Document 60 Filed 05/31/24 Page 8 of 10 PageID #: 2001
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JONATHAN STONE

Special Counsel

Texas Bar No. 24071779

AMY HILTON

Special Counsel

Texas Bar No. 24097834

JACOB E. PRZADA

Special Counsel

Texas Bar No. 24125371

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

Special Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Tel.: (512) 463-2100

susanna.dokupil@oag.texas.gov

jonathan.stone@oag.texas.gov

amy.hilton@oag.texas.gov

jacob.przada@oag.texas.gov

Counsel for Plaintiff The State Of Texas

MARGARET A. LITTLE

Connecticut Bar No. 303494

peggy.little@ncla.legal

NEW CIVIL LIBERTIES ALLIANCE

1225 19th Street NW, Suite 450

Washington, DC 20036

Tel.: (202) 869-5210

Counsel for Plaintiffs

The Daily Wire Entertainment LLC and

FDRLST Media LLC

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CERTIFICATE OF SERVICE

On May 31, 2024, I electronically submitted this document to the clerk of the court of the

U.S. District Court for the Eastern District of Texas using the court’s electronic case filing system. I 

certify that I have served all parties electronically or by another manner authorized by Federal Rule 

of Civil Procedure 5(b)(2).

/s/ Margot J. Cleveland

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