Case 3:22-cv-01213-TAD-KDM Document 173 Filed 01/11/23 Page 1 of 12 PageID #: 9224
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`THE STATE OF MISSOURI, et al.,
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`Plaintiffs,
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`v.
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`JOSEPH R. BIDEN, JR., in his official
`capacity as President of the United States, et
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`Defendants.
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`Case No. 3:22-cv-01213-TAD-KDM
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`MONROE DIVISION
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`DEFENDANTS’ SUPPLEMENTAL MEMORANDUM
`ON DISCOVERY RELATING TO PUBLIC STATEMENTS BY JENNIFER R. PSAKI
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`TABLES OF CONTENTS
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`INTRODUCTION ......................................................................................................................1
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`ARGUMENT ..............................................................................................................................2
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`I.
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`II.
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`No Further Discovery Is Necessary As an Alternative to Ms. Psaki’s Deposition. ............2
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`If any Additional Discovery is Ordered, it Should be Limited to Amended
`Interrogatory Responses Reflecting Information Obtained from Ms. Psaki.......................5
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`CONCLUSION ...........................................................................................................................9
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`i
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`Case 3:22-cv-01213-TAD-KDM Document 173 Filed 01/11/23 Page 3 of 12 PageID #: 9226
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`CASES
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`TABLE OF AUTHORITIES
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`BKGTH Prods., LLC v. Does 1-20,
`CIV.A. No. 13-5310, 2013 WL 5507297 (E.D. La. Sept. 30, 2013) .........................................2
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`Cheney v. U.S. Dist. Ct. for D.C.,
`542 U.S. 367 (2004) ............................................................................................................ 4, 8
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`In re Paxton,
`53 F.4th 303 (5th Cir. 2022) ................................................................................................ 3, 4
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`ii
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`INTRODUCTION
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`The Fifth Circuit stayed the deposition of Jennifer R. Psaki, the former White House Press
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`Secretary “pending the pursuit of less intrusive alternatives to a deposition and further order of the
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`district court.” See Order at 8, In re Murthy, No. 22-30697 (5th Cir. Jan. 5, 2023) (“In re Murthy
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`II”). This Court accordingly ordered the parties to file simultaneous briefs addressing alternatives
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`to Ms. Psaki’s deposition and stated that it would “consider an extension of the expedited
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`preliminary injunction-related discovery only for [such] purposes.” See Minute Entry (Jan. 6,
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`2023), ECF No. 163. Absent extension, the expedited discovery period ends on January 13, 2023.
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`See Mem. Order, ECF No. 148.
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`Any additional expedited discovery in lieu of Ms. Psaki’s deposition must therefore be
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`designed to serve as a substitute for the information that Plaintiffs would have sought in a
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`deposition of Ms. Psaki. But as the Fifth Circuit also explained, there is unlikely to be much, if
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`any, information that Plaintiffs still need in this area. That court rejected the notion that Ms. Psaki
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`had unique information on the ground that she had made public statements on relevant topics, and
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`further identified numerous alternative sources of information already in the record relevant to the
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`matters that Plaintiffs asserted they would explore in her deposition. See In re Murthy II at 7
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`(emphasizing that “[t]he federal government has produced thousands of pages of written discovery,
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`and four depositions have already taken place”—all during an “early station in litigation” before
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`resolution of the pending motion to dismiss).1
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`This Court should therefore decline to extend the expedited discovery period for further
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`discovery into Ms. Psaki’s statements; such discovery is unnecessary to resolve Plaintiffs’
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`1 Since briefing at the Fifth Circuit, a fifth witness sat for deposition and a sixth is scheduled for
`tomorrow, January 12, 2023. Defendants have also since responded to extensive discovery served
`on Robert Flaherty, White House Director of Digital Strategy.
`1
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`preliminary injunction motion. The parties should instead proceed to completing briefing on
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`Plaintiffs’ motion for preliminary injunction. If this Court concludes that more discovery is needed
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`in lieu of Ms. Psaki’s deposition, it should, at most, order Defendants to amend their previous
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`responses to the interrogatories Plaintiffs served on the White House Office of the Press Secretary
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`by providing supplemental answers based on consultation with Ms. Psaki. Anything more would
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`be unrelated to the information Plaintiffs purportedly need from Ms. Psaki, and therefore
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`unauthorized by this Court’s January 6 order, and would only further delay the close of expedited
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`discovery and resolution of Plaintiffs’ aging preliminary-injunction motion.
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`I.
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`ARGUMENT
`No Further Discovery Is Necessary As an Alternative to Ms. Psaki’s Deposition.
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`The Fifth Circuit stayed Ms. Psaki’s deposition on the ground that Plaintiffs had not
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`satisfied the “exceptional circumstances” standard to depose Ms. Psaki. In the course of the court’s
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`discussion, the court also made clear that the range of information, if any, that would have been
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`gleaned in that deposition is narrow and that extensive alternative sources of information
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`concerning White House contacts with social-media companies are already in the record. Thus,
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`there is no justification for any additional expedited discovery to substitute for Ms. Psaki’s
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`deposition to litigate Plaintiffs’ preliminary injunction motion. See BKGTH Prods., LLC v. Does
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`1-20, CIV.A. No. 13-5310, 2013 WL 5507297, at *5 (E.D. La. Sept. 30, 2013) (“A party seeking
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`expedited discovery must narrowly tailor their requests in scope to the necessary information they
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`seek.” (emphasis added)).
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`In particular, the Fifth Circuit rejected Plaintiffs’ argument that a deposition is required in
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`order to, among other things, “illuminate the meaning of [Ms. Psaki’s public] statements,” pointing
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`out that “[m]uch of this desired illumination” already “is apparent from the record.” In re Murthy
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`II at 5. For example, the “content of th[e] ‘asks’” “the federal government made to social media
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`platforms” is “available from Psaki’s public statements.” Id. And “[t]he record is already replete
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`with” information about “the identities of government officials and social media platforms
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`mentioned in Psaki’s statements.” Id. (noting that the “record identifies” the names of several
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`White House officials and social media platforms). Indeed, at the time of briefing to the Fifth
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`Circuit, “[t]he federal government ha[d] produced thousands of pages of written discovery, and
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`four depositions ha[d] already taken place.” Id. at 7. The record has only grown since then. The
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`federal government has produced nearly 2,000 pages of additional documents from the White
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`House. See Mem. Order at 9, ECF No. 148 (ordering Robert Flaherty, White House Director of
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`Digital Strategy, to respond to written discovery by January 5, 2023). And Plaintiffs have now
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`deposed a fifth individual, Eric Waldo, an official from U.S. Department of Health and Human
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`Services. At that deposition, Plaintiffs asked Mr. Waldo about e-mails between White House
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`officials and social media companies—produced to Plaintiffs in August 2022—that he was copied
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`on. See, e.g., Deposition of Eric Waldo at 297-302 (discussing an e-mail from Rob Flaherty to Eric
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`Waldo, a Facebook employee, and others) (attached); see also The Parties’ Joint Statement on
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`Discovery Disputes at 6, ECF No. 71 (“Joint Statement”) (acknowledging in August that
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`Defendants’ “document production” identified “several senior White House officials in
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`communications with social-media platforms,” and noting that subpoena responses from several
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`social media platforms “disclosed” names of White House officials).
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`Further, the Fifth Circuit underscored that a press secretary’s “generalized” public
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`statements do not warrant discovery probing into what the press secretary meant or knows. In re
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`Murthy II at 5 (observing that the Fifth Circuit “recently rejected subjecting certain high-ranking
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`state-government officials to depositions because of generalized ‘public statements about a matter
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`that later became the subject [of] litigation.’” (quoting In re Paxton, 53 F.4th 303, 309 (5th Cir.
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`2022)). In Paxton, the Fifth Circuit rejected the argument that the Texas Attorney General should
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`have been made to testify about public statements he made about his enforcement authority. In re
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`Paxton, 53 F.4th at 309 (finding it “is entirely unexceptional for a public official to comment
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`publicly about a matter of public concern.”). The Fifth Circuit here adopted the same logic in
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`staying Ms. Psaki’s deposition, noting that, “[a]s Press Secretary, Psaki’s role was to inform the
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`media of the administration’s priorities, not to develop or execute policy.” In re Murthy II at 5-6.
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`That is, a press secretary often makes countless public statements on behalf of an administration
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`based on second-hand information received from other government officials. Probing what the
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`press secretary meant by those statements should not be the subject of discovery. Otherwise, that
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`would be true for any matter of public interest that is in litigation.
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`In light of the Fifth Circuit’s analysis and the current state of the record, Plaintiffs cannot
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`justify taking further expedited discovery relating to Ms. Psaki’s statements even by means other
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`than a deposition of Ms. Psaki. As the Fifth Circuit noted, “much of [Plaintiffs’] desired
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`illumination” of the “meaning of [Ms. Psaki’s public] statements” is “apparent from the record.”
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`Id. at 5. Accordingly, Plaintiffs cannot demonstrate that further discovery related to Ms. Psaki’s
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`statements, by any means, is “necessary” to litigate their preliminary-injunction motion. Moreover,
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`even apart from the burden imposed when discovery of the White House raises concerns about
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`executive privilege—which this Court has previously addressed—the Supreme Court has
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`admonished courts to consider “the burden imposed [on the White House] by . . . discovery orders,”
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`emphasizing that “the Executive’s ‘constitutional responsibilities and status [are] factors
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`counseling judicial deference and restraint’ in the conduct of litigation against [the White House].”
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`See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 385 (2004) (citation omitted) (holding the
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`D.C. Circuit erred in not entering mandamus against a discovery order against the White House).
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`That burden is yet another factor that militates against Plaintiffs’ discovery request.
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`Plaintiffs thus do not need and cannot justify more discovery at the preliminary-injunction
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`stage (including written discovery purportedly in lieu of a deposition) related to Ms. Psaki’s public
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`statements. Discovery has already proceeded for six months, and, as the Fifth Circuit noted, that
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`discovery has been “extensive” even though “‘expedited discovery’ should be ‘narrowly
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`tailored.’” See In re Murthy II at 7. In the meantime, “[a]n initial motion to dismiss was filed, and
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`another revised to reflect the amended complaint is pending,” id. It is time for Plaintiffs to
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`supplement the preliminary injunction motion they filed last spring, rather than to continue to
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`exploit the expedited discovery period to obtain more open-ended discovery.
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`II.
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`If any Additional Discovery is Ordered, it Should be Limited to Amended
`Interrogatory Responses Reflecting Information Obtained from Ms. Psaki.
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`Even if further discovery were warranted at this stage, the Fifth Circuit recognized that
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`there is a “clear alternative [to Ms. Psaki’s deposition that] both parties actually had accepted”:
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`that Defendants “amend [their] interrogatory responses after consulting with Psaki.” See Id. at 4.
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`Thus, if this Court concludes that further discovery concerning Ms. Psaki’s public statements is
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`necessary, then, in lieu of her deposition, this Court should simply direct Defendants to amend
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`their written responses to the interrogatories Plaintiffs previously served on the White House
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`Office of the Press Secretary, to include information obtained directly from Ms. Psaki.
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`This Court should reject any request by Plaintiffs to go further, and to have Defendants
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`also designate “lower-level officials with relevant knowledge” to provide further written discovery
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`responses and potentially sit for depositions. See id. at 4. Rather, to the extent Plaintiffs insist on
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`(and can justify) discovery to learn what Ms. Psaki meant in her public statements, then amending
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`interrogatory responses with information provided by Ms. Psaki would be the only appropriate,
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`and least burdensome, means of doing so. And it is an alternative that Plaintiffs have already
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`accepted. Plaintiffs’ request for additional discovery on “lower-level” officials thus boils down
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`instead to an effort to further expand discovery in a manner untethered to their previous purported
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`need for Ms. Psaki’s deposition. As Plaintiffs have acknowledged, the objective of such discovery
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`is to obtain information within the possession of those individuals, not Ms. Psaki. Pls.’ Reply Br.
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`Addressing the Fifth Circuit’s Nondispositive Order Regarding Deps. at 15, ECF No. 146 (“Pls.’
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`Reply Br.”) (seeking authorization “to serve written interrogatories and document requests on that
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`official or officials” and to potentially later seek deposition(s)). But the discovery Plaintiffs would
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`seek from those officials has nothing to do with obtaining knowledge Ms. Psaki possesses.
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`To the extent Plaintiffs want Defendants to identify lower-level officials in the White
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`House Press Office, Defendants’ prior discovery responses make clear that no other officials are
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`likely to furnish information that is not already to be found in the record. Defendants have already
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`conducted a reasonable search for email communications concerning misinformation between
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`Press Office personnel and social media platforms—including of Ms. Psaki’s emails—and did not
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`identify any responsive documents. See Ex. B to Defendants’ Motion to Quash Psaki’s Deposition
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`(ECF No. 119-2) (Defendant Karine Jean-Pierre’s Amended Objections and Responses to
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`Plaintiffs’ Requests for the Production of Documents). Likewise, the White House Office of the
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`Press Secretary has already responded to Plaintiffs’ interrogatories about what Ms. Psaki meant in
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`her public statements. See Ex. C to Defendants’ Motion to Quash Psaki’s Deposition (ECF No.
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`119-2) (Defendants’ Amended Combined Corrected Interrogatory Responses).
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`And to the extent Plaintiffs request that Defendants identify additional officials outside of
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`the White House Press Office who have communicated with social media platforms about
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`misinformation, that is simply an attempt to expand discovery in a way that has already been
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`foreclosed by this Court’s prior orders. After Defendants produced thousands of documents in
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`August, Plaintiffs added several White House officials as Defendants in this action and sought to
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`take discovery on them and other newly added Defendants. See Joint Statement, ECF No. 71, at 6
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`(listing several White House officials identified in Defendants’ discovery production and in
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`subpoena responses from social media platforms); id. at 26 (seeking to amend their complaint and
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`to take new discovery on the new defendants); see also Second Am. Compl., ECF No. 84 (naming
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`more than ten White House officials as defendants). But this Court denied “Plaintiffs’ request for
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`additional expedited preliminary-injunction discovery as to the newly added defendants.” Mem.
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`Ruling and Order on Discovery Disputes at 4, ECF No. 72. In denying that request, this Court
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`observed that Plaintiffs’ “expedited discovery request [is] for the purpose of gaining the necessary
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`information to address the preliminary injunction,” and that the Court was “aware of the burden it
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`has put on all parties” such that “[t]o add additional expedited discovery during the current
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`schedule would be too much.” Id. Any request for more discovery on the White House would be
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`duplicative of what this Court previously rejected. See id.2
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`Further, any such discovery would be cumulative and burdensome at this stage. Defendants
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`have now just responded to discovery served on Mr. Flaherty by producing more than 500
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`documents totaling nearly 2,000 pages, while also providing extensive interrogatory responses
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`verified by Mr. Flaherty. See Mem. Order at 9, ECF No. 148 (setting January 5 for deadline to
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`respond to discovery served on Mr. Flaherty). And, to the extent that Plaintiffs try to rely on the
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`2 If Plaintiffs’ request is to depose low-ranking officials, then that would impose even more
`unwarranted burdens on the White House, a point Plaintiffs have tacitly recognized. In their reply
`brief following the first Fifth Circuit order, Plaintiffs proposed that the Court allow them “to serve
`written interrogatories and document requests on that official or officials,” and then to “report back
`to the Court . . . about whether” Ms. Psaki or those other officials should be deposed. See Pls.’
`Reply Br. at 15, ECF No. 146. Implicit in Plaintiffs’ proposal is the recognition that depositions
`would be even more burdensome than written discovery.
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`discovery obtained from Mr. Flaherty to assert a need for more discovery of the White House, that
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`would have nothing to do with obtaining, through less burdensome means, the information they
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`seek from Ms. Psaki. Further, as noted, the Supreme Court has counseled “judicial deference and
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`restraint” before imposing discovery burdens on the White House at any stage of litigation. See
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`Cheney, 542 U.S. at 385 (“counseling judicial deference and restraint’ in the conduct of litigation
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`against [the White House]” in finding the D.C. Circuit erred in not granting mandamus). Such
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`caution is especially warranted at the expedited discovery phase when “[e]xpedited discovery is
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`not the norm” and must be “reasonable[] . . . in light of all the surrounding circumstances.” See
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`Mem. Ruling and Order at 9, ECF No. 34. The Fifth Circuit’s direction that “less intrusive
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`alternatives to a deposition” of Ms. Psaki be considered, see In re Murthy II at 8, was not an
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`invitation to further efforts by Plaintiffs to expand the “extensive discovery” that they have already
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`been authorized to pursue in an “expedited discovery” process intended to be “narrowly tailored.”
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`See id. at 7 (also noting the pendency of Defendants’ motion to dismiss).
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`Accordingly, if this Court is to extend the expedited discovery period as it relates to Ms.
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`Psaki, any such discovery should be limited to Defendants amending their previous interrogatory
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`responses for the White House Office of the Press Secretary after consulting with Ms. Psaki.
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`Defendants request that the Court provide three weeks from any such Court order to amend those
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`responses to provide adequate time for proper coordination with a former governmental official
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`now represented by private counsel.
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`CONCLUSION
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`For the reasons stated herein, this Court should close the expedited discovery period and
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`decline to authorize any further expedited discovery related to Ms. Psaki. If it orders any discovery
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`as an alternative to Ms. Psaki’s deposition, the discovery should be limited to ordering Defendants
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`to provide, in three weeks, amended responses, after consultation with Ms. Psaki, to Plaintiffs’
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`interrogatories previously served on the White House Press Secretary’s Office.
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`Dated: January 11, 2023
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`Respectfully submitted,
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`BRIAN M. BOYNTON
`Principal Deputy Assistant Attorney General
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`JAMES J. GILLIGAN
`Special Litigation Counsel, Federal Programs Branch
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`/s/ Adam D. Kirschner
`ADAM D. KIRSCHNER (IL Bar No. 6286601)
`Senior Trial Counsel
`KYLA SNOW (OH Bar No. 96662)
`INDRANEEL SUR (D.C. Bar No. 978017)
`AMANDA K. CHUZI (D.C. Bar No. 1738545)
`Trial Attorneys
`U.S. Department of Justice
`Civil Division, Federal Programs Branch
`1100 L Street, NW
`Washington D.C. 20005
`Tel: (202) 598-3846
`Adam.Kirschner@usdoj.gov
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` Attorneys for Defendants
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