Motion for Limited Expedited Discovery — Changizi v. HHS

Record facts

U.S. District Court for the Southern District of Ohio, Eastern Division · No. 2:22-cv-01776-EAS-CMV · Doc. 27 · 2022-04-12 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF OHIO 
 
 
 
 
 
 
 
 
MARK CHANGIZI, et al., 
 
 
 
 
 
 
 
 
Plaintiffs, 
 
 
 
 
CASE NO: 2:22-cv-1776 
v. 
 
 
 
 
 
DEPARTMENT OF HEALTH AND HUMAN 
SERVICES, et al., 
 
Defendants. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
MOTION FOR LIMITED EXPEDITED DISCOVERY OR, IN THE ALTERNATIVE, TO 
EXCLUDE DEFENDANTS’ EVIDENCE, AND MEMORANDUM IN SUPPORT 
 
Plaintiffs respectfully move the Court to expedite and order the following discovery in advance 
of the April 26, 2022 hearing on Plaintiff’s motion for a preliminary injunction.  See Fed. R. Civ. P. 37.  
Plaintiffs attempted negotiated compliance to no avail, and move for extremely limited discovery so 
as to make the hearing as useful for the Court’s determination of the issues presented as possible.  
Defendants have indicated they will provide nothing and produce nothing for that hearing or 
beforehand.  Plaintiffs limit their requests to the following: 
1) Production of correspondence from the Surgeon General’s office to Twitter, pertaining 
to the Request for Information (“RFI”) and any other request for information or actions 
regarding Covid-19 “misinformation” that the Surgeon General or his office possesses 
that were sent to Twitter. 
 
2) Statement as to whether or not any Defendant ordered removed, objected to, identified, 
or “flagged” specific posts on Twitter.   Include whether Defendants have knowledge of 
whether any company complied with such request or removed, de-platformed or 
suspended any user of such platform subsequent to such request, identification, objection 
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or flagging by Defendants. If so, please identify such posts or persons so removed or 
deplatformed.1 
 
I. 
 FACTUAL BACKGROUND 
 
On March 24, 2022, Plaintiffs filed a complaint against Defendants: the Department of Health 
and Human Services (HHS), Surgeon General Vivek Murthy, and Secretary of HHS Xavier Becerra.  
See ECF No. 1. Plaintiffs filed a motion for a preliminary injunction and memorandum in support on 
March 30, 2022.  See ECF No. 9, 9-1. 
On April 1, 2022, beginning at 10:30 a.m., the parties participated in a telephonic conference 
with the Court at which scheduling for the hearing on the preliminary injunction was discussed, as 
well as possible discovery and witnesses for the hearing. See ECF No. 16; 4/8/22 Declaration of Jenin 
Younes (“Younes Decl.”), Attachment 2. The conference lasted for approximately half an hour.  The 
undersigned counsel, Ms. Younes, stated at the hearing that she did not intend to call witnesses or ask 
for discovery, as a hearing at the earliest possible opportunity was of the utmost importance.  The 
court asked the parties to meet and confer. 
Very shortly after the hearing ended and following consultation with her colleague, John J. 
Vecchione, Ms. Younes determined that witnesses and discovery would aid the Court in its 
determination of the issues.  She sent an email to opposing counsel, Department of Justice Attorney 
Kuntal Cholera, at 11:36 a.m. (approximately half an hour after the phone conference ended) asking 
to set up the meet and confer, providing some available times on Monday, April 4 and Tuesday, April 
5, and also stating that she wished to “give [him] a heads up that after some reflection, I believe we 
will call witnesses and seek expedited discovery.  I apologize for that change, and am happy to discuss 
 
1 Plaintiffs also subpoenaed Defendant Surgeon General Vivek Murthy for a preservation videotaped 
deposition in Washington, District of Columbia.  See Attachment 1.  The subpoena was sent on April 
12, 2022.  See id.  Pursuant to Rule 45(d)(3), any dispute related to this issue will be determined in a 
court in that jurisdiction (Washington, D.C.). 
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further when we talk.”  See Ex. A of Younes Decl.  Mr. Cholera responded, but only to say that he 
had received the email and would get back to her with a time.  See Ex. B of Younes Decl.   
Immediately after that, Ms. Younes called the Court to notify it of the change of plans as soon 
after the conference as possible. Ms. Younes spoke to the Court’s clerk, who told her simply to report 
back after the meet-and-confer and expedited discovery, if any, could be addressed subsequently. 
Thus, prior to taking any action, Ms. Younes awaited word from opposing counsel.  Having 
not yet heard back by Monday afternoon (April 4), Ms. Younes and her colleague, John J. Vecchione, 
sent a letter to Mr. Cholera, attached to an email at 4:20 p.m., alerting him to five areas of inquiry to 
which they either sought answers or production of documents.  See Ex. C of Younes Decl. Those 
questions/requests were: 
1) How does the Surgeon General define “misinformation” regarding Covid-19 as the term 
is used in the March 3, 2022 Request for Information (RFI)? 
 
2) Produce any and all documents, including but not limited to correspondence between any 
Defendant and Twitter, as well as other social media companies, pertaining to the RFI and 
any other request for information or actions regarding Covid-19 “misinformation” that 
defendants have in their possession. 
 
3) Please identify what the Surgeon General intends to do with documents, if anything, 
obtained from Twitter and other social media companies (the “Produced Material”) that 
are turned over as a result of the RFI. 
 
4) Please identify who within HHS or under any Defendant is tasked with receiving and 
maintaining the Produced Material.  Please include their titles and addresses. 
 
5) Please state whether or not any Defendant ordered removed, objected to, identified, or 
“flagged” specific posts on Twitter or any other social media platform.  Include whether 
Defendants have knowledge of whether any company complied with such request or 
removed, de-platformed or suspended any user of such platform subsequent to such 
request, identification, objection or flagging by Defendants.  If so, please identify such 
posts or persons and provide any documents reflecting such posts or individuals. 
 
See Ex. D of Younes Decl.   
 
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The letter also explained that Plaintiffs intended to present testimony from Plaintiff Mark 
Changizi, and to call Surgeon General Vivek Murthy and the Surgeon General’s Chief of Staff, Max 
Lesko, and that refusal to comply would result in a subpoena.  Id.   
Again, having received no response, Ms. Younes sent Mr. Cholera an email on Tuesday, April 
5, at 2:56 p.m. asking if a time for the meet and confer had been set yet.  See Ex. E of Younes Decl. 
 Mr. Cholera responded minutes thereafter, said that he was consulting with his clients about 
all of it, and that he would get back to her.  See Ex. F of Younes Decl.   
Defendants sent Ms. Younes and Mr. Vecchione a letter responding to the requests, and in 
sum and substance refusing to comply with any of them.  See Younes Decl., Ex. G.  Defendants raised 
the following specific arguments:  
(1) The discovery requests were premature and procedurally defective, and therefore 
Defendants would not accept service, because the April 4, 2022 letter was sent prior to 
issuance of summons on the U.S. Attorney, which occurred the following day; 
 
(2) No Rule 26(f) conference had occurred, so no discovery could be sought; 
 
(3) The discovery requests were not properly served, and thus Defendants have no obligation 
to respond to them: 
 
a. It was “too late” to “introduce the issue of expedited discovery,” and Defendants 
would not have agreed to brief the preliminary injunction motion in two weeks 
had they known of counsel’s intent to seek discovery;   
 
b. Expedited discovery was “infeasible” due to the tight timeline, especially if 
Plaintiffs were permitted discovery, Defendants may want discovery as well; 
 
c. Discovery was inappropriate prior to resolution of a Rule 12(b)(1) motion to 
dismiss, which Defendants intended to file, and expedited discovery was not 
warranted because “Plaintiffs have already filed a preliminary injunction motion 
without the aid of discovery, suggesting that they believed they could meet their 
burden on the current record”; 
 
d. Defendants refused to consent to produce Surgeon General Murthy or Mr. Lesko 
for the hearing as they do not live, work, or transact business within 100 miles of 
the courthouse.  Defendants claim that these individuals are protected from having 
to testify by the “apex doctrine” which protects “high-level executives and 
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government officials” from having to testify in light of the burdens that would 
impose.   
 
On April 7, 2022, at 1:00 p.m., the parties (Ms. Younes, Mr. Vecchione, and Mr. Cholera) had a 
meet-and-confer.  Mr. Cholera stated that he would not agree to produce the Surgeon General or Mr. 
Lesko to testify, and that he would not agree to the discovery requests. When Mr. Vecchione asked 
whether they could agree upon a more limited discovery, specifically written communications from 
the Surgeon General’s office to Twitter, Mr. Cholera indicated that he doubted that, but would check 
with his clients. 
II. 
ARGUMENT:  PLAINTIFFS ARE ENTITLED TO EXPEDITED DISCOVERY 
 
Plaintiffs’ letter to Defendants preceding the meet-and-confer explaining their intent to seek 
discovery and compel witness testimony was a courtesy to obtain consent before seeking court 
intervention or processes, and so that counsel could comprehensibly discuss the matter.  Plaintiffs had 
limited their requests and wanted to determine if any material could be agreed upon prior to hearing.  
Given that Defendants took quite some time to even respond to Ms. Younes’s requests to schedule 
the meet-and-confer, she thought it considerate to alert them ahead of time to Plaintiffs’ intentions 
for the hearing.  At the time of this filing, Plaintiffs have fully served Defendants and issued a 
subpoena for the Surgeon General to bring material related to the first discovery request to a 
deposition in D.C. in advance of the hearing. 
Defendants contend that Plaintiffs cannot show that expedited discovery is warranted because 
“Plaintiffs have already filed a preliminary injunction motion without the aid of discovery, suggesting 
that they believed they could meet their burden on the current record.”  See Exhibit G at 3.  Contrary 
to Defendants’ suggestion otherwise, Courts within the Sixth Circuit have routinely allowed expedited 
discovery—in particular when there is a request for a preliminary injunction. See, e.g., United States v. 
Kettering Health Network, No. 1:14-CV-345, 2014 WL 12586794, at *1 (S.D. Ohio Dec. 5, 2014) (“Good 
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cause [for expedited discovery] is often found when there is a request for a preliminary injunction”); 
Tri Cty. Wholesale Distributors, Inc. v. Labatt USA Operating Co., LLC, No. 2:13-CV-317, 2013 WL 
12180497, at *2 (S.D. Ohio Apr. 22, 2013) (“As this Court has noted previously, ‘“[g]ood cause [for 
expedited discovery] is often found when there is a request for a preliminary injunction”) 
(citing  Russell v. Lumpkin, No. 2:10–CV–00314, 2010 WL 1882139 at *1–*2 (S.D. Ohio 2010)); USEC 
Inc. v. Everitt, No. 3:09-CV-4, 2009 WL 152479, at *3 (E.D. Tenn. Jan. 22, 2009) (same); Hausser Taylor 
LLC v. RSM McGladrey, Inc., No. 1:07–CV–2832, 2007 WL 2778659, at *3 (N.D. Ohio Sept. 21, 
2007) (permitting expedited discovery to “allow Plaintiff the opportunity to present evidence 
warranting a preliminary injunction”). 
Moreover, Defendants have thus far cited only a single case as purported support for the 
proposition that the act of filing a preliminary injunction motion waives the filing party’s right to 
expedited discovery. See Exhibit G at 3 (citing Skylink Ltd. v. UniTek Glob. Servs., Inc., No. 3:13-CV-
02103, 2014 WL 104896, at *2 (N.D. Ohio Jan. 9, 2014)).  Skylink, however, lends no support to 
Defendant argument. Skylink did not involve a preliminary injunction or a request for injunctive 
relief.  Indeed, the Skylink court’s basess for denying the plaintiff’s motion for expedited discovery are 
readily distinguishable from the circumstances here. See Skylink Ltd. V. UniTek Glob. Servs., Inc., at *2 
(finding plaintiff not at risk of harm that was not potentially “compensable by way of damages” and 
that plaintiff’s request for expedited discovery was effort to “circumvent the normal litigation process” 
given that plaintiff’s complaint would soon be amended again and that a dispositive motion was 
forthcoming).  Defendants’ unfounded argument is also belied by the Advisory Committee Notes to 
Rule 26, which explain that discovery may begin prior to a Rule 26(f) conference “in some cases, such 
as those involving requests for a preliminary injunction.”  Fed.R.Civ.P. 26(d) 1993 Advisory 
Committee Notes.   
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Contrary to Defendants’ suggestion otherwise, expedited discovery is often deemed even more 
appropriate when a plaintiff seeks injunctive relief due to the emergency nature of injunctive 
proceedings. See Kentucky CVS Pharmacy v. McKinney, No. 5:13-CV-25-KSF, 2013 WL 1644903, at *1 
(E.D. Ky. Apr. 16, 2013) (“Defendants suggest the Court should rule on the merits of the motion 
for preliminary injunction before 
allowing 
any 
discovery. The 
purpose 
of 
the 
request 
for expedited discovery, however, is in aid of the motion for preliminary injunction. Plaintiff has 
shown good cause for expedited discovery.”); Philadelphia Newspaper, Inc. v. Gannett Satellite Information 
Network, Inc., 1998 U.S. Dist. LEXIS 10511, at *4 (E.D. Pa. July 15, 1998) (“expedited discovery is 
particularly appropriate when a plaintiff seeks injunctive relief because of the expedited nature of 
injunctive proceedings”) (quoting Ellsworth Associates, Inc. v. United States, 917 F. Supp. 841, 844 
(D.D.C.1996)). 
In sum, Plaintiffs respectfully request the Court to compel discovery on the two items above 
by April 22, 2022, or in the alternative to preclude defendants from introducing any evidence on the 
two issues. 
Dated:  April 12, 2022 
Respectfully submitted, 
/s/Jenin Younes__________ 
 
 
 
Jenin Younes (pro hac vice) 
Jenin.Younes@ncla.legal 
 
/s/John J. Vecchione 
 
 
 
John J. Vecchione (pro hac vice) 
John.Vecchione@ncla.legal 
 
NEW CIVIL LIBERTIES ALLIANCE 
1225 19th Street NW, Suite 450 
Washington, DC 20036 
(202) 869-5210 
 
 
/s/Angela Lavin___________  
Case: 2:22-cv-01776-EAS-CMV Doc #: 27 Filed: 04/12/22 Page: 7 of 8  PAGEID #: 150

 
 
Angela M. Lavin (0069604) 
Jay R. Carson (0068526) 
Local Counsel 
WEGMANHESSLER 
6055 Rockside Woods Boulevard North 
Suite 200 
Cleveland, Ohio 44131 
Telephone: (216) 642-3342 
Facsimile: (216) 642-8826 
AMlavin@wegmanlaw.com 
 
 
 
 
 
 
 
 
 
Attorneys for Plaintiffs 
Case: 2:22-cv-01776-EAS-CMV Doc #: 27 Filed: 04/12/22 Page: 8 of 8  PAGEID #: 151

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