IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

THE DAILY WIRE, LLC et al., 

 Plaintiffs, 

v. 

UNITED STATES DEPARTMENT 

OF STATE et al., 

 Defendants. 

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

DEFENDANTS’ OPPOSITION TO MOTION FOR EXPEDITED 

PRELIMINARY-INJUNCTION-RELATED DISCOVERY 

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 

 CRISTEN C. HANDLEY 

 CODY T. KNAPP 

 Trial Attorneys 

 U.S. Department of Justice 

 Civil Division, Federal Programs Branch 

 1100 L Street NW 

 Washington, D.C., 20005 

 Tel: (202)-305-2677 

Fax: (202)-616-8470 

 Cristen.Handley@usdoj.gov 

 Counsel for Defendants 

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TABLE OF CONTENTS 

INTRODUCTION ............................................................................................................................. 1 

BACKGROUND ................................................................................................................................ 2 

LEGAL STANDARD ........................................................................................................................ 3 

ARGUMENT ....................................................................................................................................... 3 

I. Expedited discovery is inappropriate due to the threshold jurisdictional and 

venue issues that are pending before the Court. 

II. Should the Court find both jurisdiction and proper venue, it should not allow 

expedited discovery because Plaintiffs fail to demonstrate good cause. 

CONCLUSION ................................................................................................................................. 13

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TABLE OF AUTHORITIES 

CASES

Amos v. Taylor, 

2020 WL 5809972 (N.D. Miss. Aug. 26, 2020) .................................................................. 11, 13 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ......................................................................................................................... 6 

Badon v. U.S. Dep’t of Agric., 

2021 WL 3201367 (M.D. La. July 28, 2021) ................................................................................ 4 

Base Metal Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory”, 

283 F.3d 208 (4th Cir. 2002) .......................................................................................................... 6 

Benavides v. Gartland, 

2020 WL 2561777 (S.D. Ga. May 20, 2020) ................................................................................ 9 

Better Packages, Inc. v. Zheng, 

2006 WL 1373055 (D.N.J. May 17, 2006) .................................................................................. 12 

BKGTH Prods, LLC v. Does 1-20, 

2013 WL 5507297 (E.D. La. Sept. 30, 2013) ............................................................................... 7 

Bug Juice Brands, Inc. v. Great Lakes Bottling Co., 

2010 WL 1418032 (W.D. Mich. Apr. 6, 2010) .......................................................................... 11 

Califano v. Sanders, 

430 U.S. 99 (1977) ........................................................................................................................... 2 

Dickson v. United States, 

831 F. Supp. 893 (D.D.C. 1993) .................................................................................................... 6 

Elrod v. Burns, 

427 U.S. 347 (1976) ................................................................................................................... 9, 10 

Enochs v. Lampasas Cnty., 

641 F.3d 155 (5th Cir. 2011) .......................................................................................................... 4 

Enplanar, Inc. v. Marsh, 

11 F.3d 1284 (5th Cir. 1994) .......................................................................................................... 6 

Francis v. API Tech. Servs., LLC, 

2013 WL 12222464 (E.D. Tex. Nov. 14, 2013) .................................................................... 3, 11 

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GHX Indus. LLC v. Servco Hose & Supply LLC, 

2020 WL 1492920 (W.D. La. Feb. 5, 2020) ................................................................................. 8 

Google, Inc. v. Hood, 

822 F.3d 212 (5th Cir. 2016) .......................................................................................................... 9 

Guajardo v. State Bar of Tex., 

803 F. App’x 750 (5th Cir. 2020) ................................................................................................... 5 

H.D. Vest, Inc. v. H.D. Vest Mgmt. & Servs., LLC, 

2009 WL 1766095 (N.D. Tex. June 23, 2009) ........................................................................... 10 

Haverkamp v. Linthicum, 

6 F.4th 662 (5th Cir. 2021) ............................................................................................................. 4 

In re Horseshoe Ent., 

337 F.3d 429 (5th Cir. 2003) .......................................................................................................... 6 

Johnson v. TheHuffingtonPost.com, Inc., 

21 F.4th 314 (5th Cir. 2021) ........................................................................................................... 6 

Lapaglia v. Transamerica Cas. Ins. Co., 

155 F. Supp. 3d 153 (D. Conn. 2016) ........................................................................................... 6 

Laufer v. Patel, 

2021 WL 327704 (W.D. Tex. Feb. 1, 2021) ................................................................................. 4 

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor, 

194 F.R.D. 618 (N.D. Ill. 2000) ................................................................................................. 7, 8 

Missouri v. Biden, 

2022 WL 2825846 (W.D. La. July 12, 2022) .............................................................................. 13 

Mullane v. Almon, 

339 F.R.D. 659 (N.D. Fla. 2021) ................................................................................................... 8 

NetChoice, LLC v. Paxton, 

2023 WL 6319650 (U.S. Sept. 29, 2023) ...................................................................................... 5 

OrthoAccel Techs., Inc. v. Propel Orthodontics, LLC, 

2016 WL 3747222 (E.D. Tex. July 13, 2016)...................................................................... 11, 13 

Shenzhen Tange Li’An E-Commerce, Co. v. Drone Whirl LLC, 

2020 WL 5237267 (W.D. Tex. Sept. 2, 2020) ............................................................................ 10 

Smith v. Potter, 

400 F. App’x 806 (5th Cir. 2010) ................................................................................................... 4 

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St. Louis Grp., Inc. v. Metals & Additives Corp., 

275 F.R.D. 236 (S.D. Tex. 2011) ........................................................................................ 8, 9, 10 

Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998) .................................................................................................................. 2, 4, 5 

TransUnion LLC v. Ramirez, 

584 U.S. 413 (2021) ......................................................................................................................... 5 

Tween Brands Inv., LLC v. Bluestar All., LLC, 

2015 WL 5139487 (S.D. Ohio Sept. 1, 2015) .............................................................................. 8 

Uniloc USA, Inc. v. Apple Inc., 

2017 WL 3382806 (E.D. Tex. July 21, 2017).................................................................... 3, 8, 11 

Wilson v. Samson Contour Energy E & P, LLC, 

2014 WL 2949457 (W.D. La. June 30, 2014)............................................................................... 7 

Winter v. Nat. Res. Def. Council, Inc., 

555 U.S. 7 (2008) ............................................................................................................................. 9 

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INTRODUCTION 

It should be uncontroversial that a lawsuit may not proceed to discovery before 

jurisdictional issues are resolved and while the case lays venue in the wrong court. That is 

particularly so where a plaintiff seeks expedited discovery—before the defendant has even 

responded to the Complaint—demanding urgent access to information related to allegations 

that could have been raised years earlier. 

But Plaintiffs have done just that. On December 6, 2023, Plaintiffs brought this suit 

challenging two agency grants that date back to 2020 and 2021, and other agency actions 

allegedly performed on an online platform that Plaintiffs acknowledge has been retired since 

2021. See Compl. ¶¶ 59, 142-44, 160, ECF No. 1. Two months passed without litigation 

activity. Upon receiving notice of Defendants’ intent to move to transfer this matter to a 

proper venue, Plaintiffs moved this Court for two extraordinary orders. First, Plaintiffs seek 

a preliminary injunction that would prohibit Defendants “and any individuals and entities 

acting on their behalf” from a sweeping array of activities, including researching, assessing, 

funding, or “otherwise assist[ing]” with third parties’ development or use of certain 

technologies. See Mot. for Prelim. Inj. at 36, ECF No. 11. Second, the focus of this filing, 

Plaintiffs ask the Court to depart from the ordinary course of civil litigation by requiring 

Defendants to respond to an unspecified number of interrogatories and requests for 

documents, and to potentially prepare for depositions that may exceed the maximum number 

allowed by the Federal Rules of Civil Procedure, all on a compressed timeline. See Mot. for 

Disc. at 2-3, ECF No. 13. 

While Plaintiffs would have the Court leap ahead to the merits of their claims and 

requested relief, there are threshold jurisdictional and venue issues that prevent this case from 

moving forward at all. For starters, as Defendants have previously demonstrated and will 

further explain in forthcoming filings, Plaintiffs lack Article III standing because they have 

failed to identify any cognizable injury that is legally attributable to Defendants and likely to 

be redressed by judicial relief. Because a lawsuit may not proceed without jurisdiction, see Steel 

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Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998), expedited discovery should be denied 

on this basis alone. Further, no expedited discovery (or any other litigation activity) should 

proceed in this Court because this District is not a proper venue for this matter. See Mot. to 

Transfer, ECF No. 14. At minimum, the Court should first determine whether it is authorized 

to hear this case pursuant to jurisdictional and venue principles before it considers Plaintiffs’ 

request for expedited discovery. 

Even assuming Plaintiffs could surmount these threshold hurdles, their claims are not 

the type that would warrant expedited discovery. That is, Plaintiffs have not established any 

pressing need or other good cause that would outweigh the burden that expedited discovery 

would impose on Defendants. For these additional reasons, the Court should deny Plaintiffs’ 

motion. 

BACKGROUND 

Plaintiffs are two media organizations and the State of Texas. Compl. ¶¶ 13, 39, 41. 

The Complaint alleges that the Department of State, through its Global Engagement Center 

(“GEC”), encouraged the development of “Countering Propaganda and Disinformation” 

technologies by private third parties, which social media companies in turn purportedly used 

to restrict the Media Plaintiffs’ speech. See id. ¶¶ 3, 65. Texas argues separately that 

Defendants’ alleged actions interfere with its enforcement of a (presently enjoined) state law 

that is directed at social media companies. See id. ¶¶ 234-35. 

Although this suit was brought more than two months ago and complains primarily 

of conduct from several years earlier, Plaintiffs now seek expedited discovery and a preliminary 

injunction. Specifically, Plaintiffs state that expedited discovery is necessary to “(1) ascertain 

the identities of State Department officials, employees, and contractors” who may have 

information relevant to Plaintiffs’ claims; “(2) determine the nature and content of 

communications among and between” those individuals and “social media and tech 

companies”; “(3) determine the breadth of the still ongoing harm to Plaintiffs” from 

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Defendants’ alleged actions; and “(4) determine what additional and tailored preliminary 

injunctive relief is appropriate and necessary[.]” Mot. for Disc. at 2. 

LEGAL STANDARD 

 The Fifth Circuit has not adopted a standard for determining when expedited 

discovery is warranted, though district courts within this Circuit typically require a showing of 

an exigent need that is supported by “good cause.” See, e.g., Uniloc USA, Inc. v. Apple Inc., 2017 

WL 3382806, at *1 (E.D. Tex. July 21, 2017) (collecting cases). Under this standard, courts 

consider the following factors: “(1) whether a preliminary injunction is pending; (2) the 

breadth of the discovery requests; (3) the purpose for requesting the expedited discovery; (4) 

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

typical discovery process the request was made.” Id. In considering these factors, “the court 

should examine the discovery request on the entirety of the record to date and the 

reasonableness of the request in light of all the surrounding circumstances.” Id.1 The burden 

of showing good cause is on the party seeking expedited discovery. E.g., Francis v. API Tech. 

Servs., LLC, 2013 WL 12222464, at *1 (E.D. Tex. Nov. 14, 2013). 

ARGUMENT 

 The Court should deny Plaintiffs’ motion for expedited discovery for two key reasons. 

First, there is no basis for this case to proceed at all, much less to expedited discovery, because 

the Complaint fails to demonstrate both subject-matter jurisdiction and proper venue. These 

threshold issues must at least be resolved before any request for discovery is considered. 

Second, should the Court conclude that it has jurisdiction, and that venue is proper, Plaintiffs 

have not demonstrated good cause justifying expedited discovery. 

I. Expedited discovery is inappropriate due to the threshold jurisdictional 

and venue issues that are pending before the Court. 

The “first and fundamental question” in every case “is that of jurisdiction.” Steel Co., 

523 U.S. at 94-95. Jurisdiction is a “requirement that . . . as a threshold matter spring[s] from 

1 Internal quotations and citations omitted throughout this brief unless otherwise noted. 

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the nature and limits of the judicial power of the United States and is inflexible and without 

exception.” Id. Accordingly, “[c]ourts are instructed to examine their jurisdiction at every 

stage of the litigation,” Enochs v. Lampasas Cnty., 641 F.3d 155, 161 (5th Cir. 2011), including 

“at the pleading stage” where “the plaintiff’s burden is to allege a plausible set of facts 

establishing jurisdiction,” Haverkamp v. Linthicum, 6 F.4th 662, 668 (5th Cir. 2021). Because a 

lawsuit may not proceed without jurisdiction, courts routinely stay discovery when 

jurisdictional issues are pending. See, e.g., Smith v. Potter, 400 F. App’x 806, 813 (5th Cir. 2010) 

(concluding that the district court did not abuse its discretion in “grant[ing]” a “motion to stay 

discovery pending . . . the motion to dismiss for lack of jurisdiction.”); Badon v. U.S. Dep’t of 

Agric., 2021 WL 3201367, at *2 (M.D. La. July 28, 2021) (“Defendant’s Motion to Dismiss 

raises the threshold issue of subject-matter jurisdiction,” and so “the Court finds good cause 

to stay discovery pending resolution of Defendant’s Motion to Dismiss.”); Laufer v. Patel, 2021 

WL 327704, at *2 (W.D. Tex. Feb. 1, 2021) (“[D]iscovery should be stayed until the District 

Court has determined whether it has jurisdiction over this case.”). 

Applying these principles here, Plaintiffs are not entitled to expedited discovery 

because their Complaint fails to plausibly allege facts supporting Article III standing. As 

explained in Defendants’ pending motion to transfer venue, Plaintiff the State of Texas’s injury 

allegations are implausible because they are premised only on conclusory statements that 

Defendants have interfered with Texas’s enforcement of a state law, when in fact that law has 

never been enforceable (much less enforced) as it has been preliminarily enjoined since before 

it was scheduled to take effect, and is now undergoing review by the Supreme Court. See Mot. 

to Transfer at 5-6 (discussing NetChoice, LLC v. Paxton, 2023 WL 6319650 (Mem) (U.S. Sept. 

29, 2023)). Defendants’ transfer motion also showed that the Complaint relies on allegations 

of past conduct by Defendants and speculation about the independent decisions of mostly 

unidentified third parties, which cannot withstand Article III scrutiny. See id. at 7-9. Plaintiffs 

have not responded to these points. Defendants will present additional arguments further 

demonstrating that each Plaintiff lacks Article III standing in their opposition to Plaintiffs’ 

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motion for preliminary injunction, which will be filed by March 15, 2024. Defendants also 

anticipate filing a motion to dismiss the Complaint on jurisdictional and other grounds by 

March 28, 2024 (their current deadline to respond to the Complaint). Because the Court must 

first assure itself of its subject-matter jurisdiction, Steel Co., 523 U.S. at 944-95, discovery 

cannot take place unless and until each Plaintiff demonstrates its Article III standing, see 

TransUnion LLC v. Ramirez, 584 U.S. 413, 431 (2021) (“[S]tanding is not dispensed in gross; 

rather, plaintiffs must demonstrate standing for each claim that they press.”). 

For similar reasons, Plaintiffs are not entitled to expedited discovery (or any other 

relief) in this Court because they have filed this case in the wrong District. As explained in 

Defendants’ motion to transfer, Plaintiffs’ claim to venue is improper because it is based solely 

on the presence of a plaintiff, Texas, that lacks Article III standing. See Mot. to Transfer at 1, 

4-9. Moreover, even if Texas had Article III standing, venue would still be improper since the 

State does not reside in this District for venue purposes, and none of the alleged actions giving 

rise to Texas’s claims occurred here. See id. at 10-13. Venue must be demonstrated for each 

claim, see, e.g., Guajardo v. State Bar of Tex., 803 F. App’x 750, 755 (5th Cir. 2020), and the 

Complaint does not even assert that venue is proper as to the Media Plaintiffs’ First 

Amendment claims, which are a central focus of the request for expedited discovery, see Mot. 

for Disc. at 6. Any review of Plaintiffs’ motion should be undertaken by a court that is 

authorized under the venue statute to hear this case in the first instance. That is especially so 

since any authorization of expedited discovery would require judicial supervision over the 

scope, schedule, and content of such discovery, and would require the court to resolve any 

discovery-related disputes. Thus, discovery should not proceed absent, at minimum, a finding 

by this Court that venue is proper. See generally In re Horseshoe Ent., 337 F.3d 429, 433 (5th Cir. 

2003) (disposition of a transfer motion should be “a top priority in the handling of [a] case”); 

see also Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1291 (5th Cir. 1994) (no abuse of discretion where 

district court denied discovery pending disposition of a motion to transfer venue). 

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If Plaintiffs assert that expedited discovery is justified in order to obtain information 

that would support their allegations related to Article III standing or venue, that is plainly 

wrong. “Basic fact-finding should precede the filing of a lawsuit,” Dickson v. United States, 831 

F. Supp. 893, 900 (D.D.C. 1993), and a plaintiff is not entitled to discovery merely to remedy 

the deficiencies in its complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (if a plaintiff’s 

“complaint is deficient under Rule 8, [it] is not entitled to discovery, cabined or otherwise”). 

See also Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 326 (5th Cir. 2021) (“[A] jurisdictional 

fishing expedition” is not justified “based on a plaintiff’s general averments that more 

discovery will prove [the court’s] jurisdiction”); Base Metal Trading, Ltd. v. OJSC “Novokuznetsky 

Aluminum Factory”, 283 F.3d 208, 216 n.3 (4th Cir. 2002) (the district court did not abuse its 

discretion in “failing to permit jurisdictional discovery” because “the plaintiff simply want[ed] 

to conduct a fishing expedition in the hopes of discovering some basis of jurisdiction”); 

Lapaglia v. Transamerica Cas. Ins. Co., 155 F. Supp. 3d 153, 156 (D. Conn. 2016) (“Absent . . . 

plausible allegations of subject-matter jurisdiction, any plaintiff would be free to assert 

extravagant, unfounded, and conclusory claims of jurisdiction, and a court would be faced 

with no option in response but to impose expensive and time-consuming discovery.”); Dickson, 

831 F. Supp. at 900 (“[T]he insufficiency of the Plaintiff’s Complaint does not warrant any 

form of discovery for . . . jurisdiction.”). Put differently, Plaintiffs’ failure to come forward 

with well-pled, non-conclusory allegations supporting jurisdiction and venue is itself 

confirmation that they are not entitled to discovery. 

In any event, discovery from Defendants could not establish that Plaintiffs have 

Article III standing or that venue is proper. As to standing, discovery would not, for instance, 

reveal facts demonstrating that Defendants interfered with Texas’s enforcement of HB 20 

because, again, HB 20 has never been enforceable. See supra at 4. Nor would it shed light on 

the Media Plaintiffs’ asserted injuries, all of which turn on whether independent third parties 

would alter their alleged behavior in response to a court order directed at Defendants. As to 

venue, discovery from Defendants would not be relevant to the legal issue of Texas’s 

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residency, and it could not identify events giving rise to Texas’s non-existent efforts to enforce 

HB 20. If anything, should the Court determine that discovery is needed from Defendants to 

evaluate Plaintiffs’ Article III standing, discovery should also be acquired from Plaintiffs, since 

presumably they—rather than Defendants—have sole access to information concerning their 

asserted injuries to, for instance, Texas’s enforcement efforts or the Media Plaintiffs’ revenue 

and viewership. See Compl. ¶¶ 4-5. 

Because the Complaint cannot survive scrutiny under basic jurisdictional and venue 

principles, expedited discovery is inappropriate, and the Court should at least resolve these 

pending issues before entertaining Plaintiffs’ request. 

II. Should the Court find both jurisdiction and proper venue, it should not 

allow expedited discovery because Plaintiffs fail to demonstrate good 

cause. 

 As explained above, no discovery is proper, much less discovery on an expedited basis, 

considering the Complaint’s failure to plausibly allege jurisdiction and proper venue. Should 

the Court determine that this case may proceed after considering those issues, however, 

Plaintiffs have failed to demonstrate good cause that would justify expedited discovery. 

Expedited discovery is rare and allowable only “in limited circumstances.” See Wilson v. Samson 

Contour Energy E & P, LLC, 2014 WL 2949457, at *3 (W.D. La. June 30, 2014); BKGTH Prods, 

LLC v. Does 1-20, 2013 WL 5507297, at *5 (E.D. La. Sept. 30, 2013) (“Courts in the Fifth 

Circuit have stated that irrespective of the standard applied, [e]xpedited discovery is not the 

norm.”); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618, 623 (N.D. Ill. 

2000) (similar). The requesting party must demonstrate a pressing need that outweighs the 

burdens imposed on Defendants and that is “reasonable[] . . . in light of all the surrounding 

circumstances.” Uniloc, 2017 WL 3382806, at *1; see also St. Louis Grp., Inc. v. Metals & Additives 

Corp., 275 F.R.D. 236, 239 (S.D. Tex. 2011). 

Fundamentally, Plaintiffs argue that expedited discovery is warranted because they 

have moved for a preliminary injunction. See Mot. for Disc. at 1, 4-7; see also Uniloc, 2017 WL 

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3382806, at *1 (the good-cause analysis considers, among several other factors, “whether a 

preliminary injunction [motion] is pending”). But a party is not entitled to discovery simply 

because it sued the Government and seeks emergency relief. See Mullane v. Almon, 339 F.R.D. 

659, 665 n.2 (N.D. Fla. 2021) (“[E]xpedited discovery is not automatically granted merely 

because a party seeks a preliminary injunction.”); Tween Brands Inv., LLC v. Bluestar All., LLC, 

2015 WL 5139487, at *3 (S.D. Ohio Sept. 1, 2015) (same). That is especially true here, because 

any exigency arising from Plaintiffs’ preliminary injunction motion is solely of their own 

making. Plaintiffs brought this suit in December 2023, challenging two agency funding 

decisions that date back several years and alleging other activities on a platform that the 

Complaint admits was retired in 2021. See Compl. ¶¶ 125, 142, 160. And, once Plaintiffs 

eventually filed this suit, they waited another two months to seek a preliminary injunction and 

expedited discovery. The Court should not require Defendants to respond to discovery on an 

expedited basis when Plaintiffs themselves have moved at so leisurely a pace. 

 More than that, Plaintiffs fail to show that the information they seek is “necessary” to 

litigate their preliminary injunction motion. See GHX Indus. LLC v. Servco Hose & Supply LLC, 

2020 WL 1492920, at *2 (W.D. La. Feb. 5, 2020) (denying expedited discovery as to requests 

that did not seek “only necessary information”). Plaintiffs filed that motion without the aid 

of expedited discovery. And they state that they have already “obtained sufficient open-source 

evidence to establish” each of their claims. See Mot. for Disc. at 3. Nonetheless, Plaintiffs 

argue that expedited discovery is warranted to “determine the full scope” of their claims and 

asserted injuries. See id. But Plaintiffs are not entitled to expedited discovery “only to bolster 

positions they already contend are supported by evidence.” See Benavides v. Gartland, 2020 WL 

2561777, at *3 (S.D. Ga. May 20, 2020); see also id. (“The fact that Petitioners are seeking 

cumulative evidence to support their . . . motion for preliminary injunction cuts against good 

cause for the proposed expedited discovery.”). Nor can they justify their request by 

speculating that they might happen upon evidence that further supports their arguments. If 

“that reason alone” could “constitute good cause,” then “expedited discovery would be the 

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norm instead of the exception, and there would be no substantive purpose for Federal Rule 

26(d)(1).” St. Louis Grp., 275 F.R.D. at 242. 

Plaintiffs’ arguments that discovery is needed to determine “the breadth of the[ir] still 

ongoing harm” and “what additional and tailored preliminary injunctive relief is appropriate . 

. . to prevent further irreparable harm” are equally unavailing. See Mot. for Disc. at 1. It is 

inconceivable that discovery from Defendants is necessary for Texas to support its allegations 

concerning its own purported enforcement of state law, or for the Media Plaintiffs to provide 

evidence concerning their own revenue and viewership. That information should be 

exclusively within Plaintiffs’ possession. If Plaintiffs are unaware of facts showing whether or 

how they were harmed by the alleged conduct of Defendants, that is strong evidence that they 

have not been harmed at all. 

For similar reasons, the Media Plaintiffs cannot assert a need for expedited discovery 

on the basis that their First Amendment claims automatically establish irreparable harm. See

id. at 6-7. Although First Amendment injuries may be irreparable when they occur, see Elrod 

v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion), a plaintiff seeking a preliminary injunction 

still must show that such injuries are “imminent,” see Winter v. Nat. Res. Def. Council, Inc., 555 

U.S. 7, 22 (2008). That is, merely invoking the loss of First Amendment freedoms “cannot 

substitute for the presence of an imminent, non-speculative injury.” See Google, Inc. v. Hood, 

822 F.3d 212, 228 (5th Cir. 2016). “A preliminary injunction is not appropriate . . . unless the 

party seeking it can demonstrate,” id. at 227-28, what the Supreme Court found in Elrod itself: 

“that First Amendment interests [are] either threatened or in fact being impaired at the time 

relief [is] sought.” 427 U.S. at 373. 

Here, the Media Plaintiffs raise First Amendment claims based primarily on past 

alleged conduct, and their allegations of ongoing harm are undermined by their own 

acknowledgement that the platform that supposedly facilitated that alleged harm is now retired 

(and has been for years). See Compl. ¶¶ 59, 142-44, 160. The Complaint alleges generally that 

Defendants “continue[] to promote censorship tools and technology,” id. ¶ 163, but that is 

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not the same as establishing that any such “tools” or “technology” “promoted” by Defendants 

will actually and imminently be adopted by unidentified third parties so as to harm the Media 

Plaintiffs’ First Amendment interests. See Elrod, 427 U.S. at 347. And, again, Plaintiffs’ delay 

in bringing this suit and in moving for preliminary relief undermines any assertion that they 

are suffering some imminent, irreparable, and as-yet unidentified harm necessary to satisfy the 

“good cause” standard. See, e.g., H.D. Vest, Inc. v. H.D. Vest Mgmt. & Servs., LLC, 2009 WL 

1766095, at *4 (N.D. Tex. June 23, 2009) (“Absent a good explanation, a substantial period of 

delay militates against the issuance of a preliminary injunction by demonstrating that there is 

no apparent urgency to the request for injunctive relief.”); Shenzhen Tange Li’An E-Commerce, 

Co. v. Drone Whirl LLC, 2020 WL 5237267, at *4 (W.D. Tex. Sept. 2, 2020) (“Plaintiffs’ delay 

in seeking injunctive relief suggests a lack of urgency . . .”). 

Compounding the error, although Plaintiffs argue that they will suffer irreparable harm 

in the absence of a preliminary injunction, they do not establish that irreparable harm will result 

in the absence of expedited discovery. See St. Louis Grp., 275 F.R.D. at 240 (“[C]ourts have granted 

expedited discovery requests when there is some showing of irreparable harm that can be 

addressed by . . . expedited discovery.” (emphasis added)). They do not suggest, for example, 

that relevant evidence may be hidden, destroyed, or otherwise unavailable later on. See id.

(collecting cases). They claim that the information they seek is exclusively within Defendants’ 

possession. See Mot. for Disc. at 7. While that may be true regarding the requests for the 

identities of and communication solely between Government employees, there is nothing 

unusual about the Government possessing such information, and there is no reason that 

Plaintiffs will suffer later in the absence of access to that information now. 

The remaining factors—the scope of the requests, the burden on Defendants, and 

how far in advance of the usual discovery process the requests are made—also weigh against 

a finding of good cause. See Uniloc, 2017 WL 3382806, at *1. In this context, scope and burden 

are intertwined, and the requests must be “narrowly tailored in scope” to avoid an undue 

burden on Defendants. See, e.g., Francis, 2013 WL 12222464, at *1. 

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The precise scope of Plaintiffs’ requests is unknown, as they do not submit any of their 

proposed interrogatories, document requests, or topics for depositions, which parties routinely 

do when seeking expedited discovery. See Amos v. Taylor, 2020 WL 5809972, at *6-8 (N.D. 

Miss. Aug. 26, 2020); OrthoAccel Techs., Inc. v. Propel Orthodontics, LLC, 2016 WL 3747222 at *1 

(E.D. Tex. July 13, 2016). Nor do Plaintiffs suggest any date ranges or limits on the number 

of requests or depositions they intend to seek from Defendants; by contrast, they appear to 

contemplate seeking additional depositions beyond the maximum of 10 imposed by the 

Federal Rules of Civil Procedure. See Mot. for Disc. at 3 (“Plaintiffs shall notify Defendants 

whether they will seek additional third-party subpoenas or depositions pursuant to Rule 

30(a)(2).”). 

Instead, Plaintiffs offer several loosely described categories of evidence they deem “of 

core relevance” to their claims and motion for a preliminary injunction, such as information 

regarding “the nature and content of communications” between the Government and 

technology and social media companies, and “the breadth and impact of these [actors’] 

combined efforts.” See id. at 8. In so doing, Plaintiffs essentially summarize the evidence they 

believe they need to establish their case on the merits. That is impermissibly expansive rather 

than narrow in scope. See OrthoAccel Techs., Inc., 2016 WL 3747222, at *4 (expedited discovery 

is “manifestly improper” when the requests “broadly seek any and all information necessary 

for Plaintiffs to establish their cause of action”); see also Bug Juice Brands, Inc. v. Great Lakes 

Bottling Co., 2010 WL 1418032, at *2 (W.D. Mich. Apr. 6, 2010) (finding document requests 

overbroad because they sought information necessary for the plaintiffs to establish their cause 

of action); Better Packages, Inc. v. Zheng, 2006 WL 1373055, at *4-5 (D.N.J. May 17, 2006) 

(denying the plaintiff’s request for expedited discovery in part because it “would lead to the 

parties conducting nearly all discovery in an expedited fashion under the premise of preparing 

for a preliminary injunction hearing, which is not the purpose of expedited discovery”). 

Plaintiffs’ request is also overly broad insofar as it seeks information to prepare a future 

request for preliminary injunctive relief that reaches “beyond the relief sought in Plaintiffs’ 

Case 6:23-cv-00609-JDK Document 20 Filed 02/21/24 Page 16 of 19 PageID #: 666
12

Motion for Preliminary Injunction.” See Mot. for Disc. at 2. Plaintiffs’ requested preliminary 

injunction is already extraordinarily broad. It would prevent “Defendants and any individuals 

and entities acting on their behalf” from even wholly internal activities such as “research[ing]” 

or “assess[ing]” certain technologies. See Mot. for Prelim. Inj. at 36. Any request for expedited 

discovery concerning preliminary relief that is even more expansive than the sweeping relief 

presently requested would, by definition, not be narrowly tailored. 

In contrast to the lack of narrowly tailored requests, the burden that expedited 

discovery would impose on Defendants is substantial. Plaintiffs’ requests would require 

Defendants to search for and collect years’-old documents from potentially numerous 

government servers; conduct manual, page-by-page reviews of every document for 

responsiveness and privilege; consult with any appropriate equity holders; and process the 

productions. Those steps would require significant government resources and time—

retrieving the relevant documents and loading them into the government’s review platform 

could alone take weeks (if not months). Defendants would also have to collect information 

to provide thorough interrogatory responses, which would require additional searches and 

other efforts. Further, Plaintiffs are incorrect that Defendants can “easily comply” with parts 

of their requests “by providing Plaintiffs access to the Disinfo Cloud platform and Disinfo 

Cloud Digest.” See Mot. for Disc. at 9. As Plaintiffs know, Disinfo Cloud and the Disinfo 

Cloud Digest have been inoperative for years, and they were managed by a third-party that has 

itself been “shuttered,” according to the Complaint. See Compl. ¶¶ 55, 160. Accessing that 

platform and Digest is thus hardly as simple as Plaintiffs assume.2 

2 Plaintiffs’ reliance on the grant of expedited discovery in Missouri v. Biden does not support their 

arguments. See Mot. for Disc. at 9 (citing Missouri v. Biden, 2022 WL 2825846, at *5 (W.D. La. July 12, 

2022)). The discovery in that case was neither expedited nor narrow; it lasted approximately nine 

months and resulted in the government’s production of thousands of pages of documents, and it 

included two mandamus petitions to the Fifth Circuit (both of which resulted in orders granting the 

government’s request to stay depositions of certain high-ranking officials). See In re Murthy, No. 22-

30697 (5th Cir. orders dated Nov. 21, 2022 & Jan. 5, 2023). That lengthy process posed an immense 

burden on the federal defendants as well as the court. 

Case 6:23-cv-00609-JDK Document 20 Filed 02/21/24 Page 17 of 19 PageID #: 667
13

Finally, Plaintiffs’ request for expedited discovery comes far in advance of the typical 

discovery process, which weighs against a finding of good cause. See OrthoAccel Techs., 2016 

WL 3747222, at *5. Plaintiffs seek expedited discovery while significant threshold issues are 

pending—i.e., whether this Court has subject-matter jurisdiction and is a proper venue—and 

before Defendants have answered the Complaint or responded to Plaintiffs’ motion for a 

preliminary injunction. Authorizing expedited discovery at this time would impermissibly 

propel Plaintiffs past their initial burden to allege plausible facts establishing jurisdiction and 

proper venue, and the Court must at least resolve those outstanding issues before this case 

may proceed. 

CONCLUSION 

For these reasons, the Court should deny Plaintiffs’ motion for expedited discovery. 

Dated: February 21, 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 

CRISTEN C. HANDLEY 

CODY T. KNAPP 

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 

Fax: (202)-616-8470 

Email: cristen.handley@usdoj.gov 

Counsel for Defendants 

Case 6:23-cv-00609-JDK Document 20 Filed 02/21/24 Page 18 of 19 PageID #: 668
14

CERTIFICATE OF SERVICE 

 I hereby certify that on February 21, 2024, I electronically filed the foregoing paper 

with the Clerk of Court using this Court’s CM/ECF system, which will notify all counsel of 

record of such filing. 

/s/Cristen C. Handley 

CRISTEN C. HANDLEY 

CODY T. KNAPP 

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 

Fax: (202)-616-8470 

Email: cristen.handley@usdoj.gov 

CERTIFICATE OF CONFERENCE 

 I, Cristen C. Handley, hereby certify that counsel for the parties met and conferred via 

teleconference on February 5, 2024. The following counsel participated in this meet and 

confer: 

Margaret A Little 

Margot J. Cleveland 

Counsel for the Media Plaintiffs 

Susanna Dokupil 

Counsel for Plaintiff the State of Texas 

Cristen C. Handley 

Cody T. Knapp 

Counsel for Defendants 

/s/Cristen C. Handley 

CRISTEN C. HANDLEY 

Trial Attorney 

U.S. Department of Justice 

Case 6:23-cv-00609-JDK Document 20 Filed 02/21/24 Page 19 of 19 PageID #: 669