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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1-3; on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,
Plaintiffs,
v.
LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,
Defendants.
Case No. 4:21-cv-01236-O
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL
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TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................... ii
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ........................................................................................................................... 1
DISCOVERY STANDARDS ......................................................................................................... 2
DISCUSSION .................................................................................................................................. 3
I.
Ordering The Plaintiffs to Respond to Discovery Would Nullify the Efficiency of This
Class Action and Would Be Disproportionate to The Needs of The Case. ................................. 3
II.
The Named Plaintiffs Fully Responded and Properly Objected to Defendants’ Discovery
Inquiries into The Sincerity of Their Religious Beliefs on More Than One Occasion, And No
Further Responses Are Required. ................................................................................................ 7
A.
Interrogatories 3 and 6 ..................................................................................................... 7
B.
Interrogatory 7 ............................................................................................................... 10
C.
Interrogatories 5 and 8 ................................................................................................... 13
D.
Interrogatory 13 and Requests for Production 9 and 10 ................................................ 15
III.
The Named Plaintiffs Have Fully Responded to Inquiries Related to Compelling
Government Interest and Least Restrictive Means, And No Further Responses Are Required. ...
....................................................................................................................................... 17
IV.
Defendants’ Motion Should Be Denied Because Relevant Requested Documents Have
Been Produced. .......................................................................................................................... 19
A.
Defendants already possess the documents within Named Plaintiffs’ possession,
custody, or control, or agreed to forego production of documents within the scope of
Plaintiffs’ initial disclosures. ................................................................................................. 20
1.
Defendants already possess the Named Plaintiffs’ RARs and related documents. ... 20
2.
Defendants already possess the fifty-point standard operating procedure and related
documents used by Vice Admiral Nowell. ........................................................................ 22
3.
Defendants agreed to forego production of any publicly available Navy policy
documents. ......................................................................................................................... 22
B.
The Named Plaintiffs produced links to documents related to Interrogatories. ............ 23
C.
Plaintiffs have no responses to RFP 8 - Communications and Social Media Documents.
....................................................................................................................................... 24
CONCLUSION ............................................................................................................................. 25
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TABLE OF AUTHORITIES
Cases
A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010) ................................................. 10
Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301 (2022) ................................................................ 12
Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999 (7th Cir. 1971) ................................... 5
Clark v. Universal Builders, 501 F.2d 324 (7th Cir. 1974) ............................................................. 5
Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986) .................................................... 5
Crawford-El v. Britton, 523 U.S. 574 (1998) .................................................................................. 3
Crosby v. Louisiana Health Serv. & Indem. Co., 647 F.3d 258 (5th Cir. 2011) ............................. 3
Davis v. Fort Bend Cnty., 765 F.3d 480 (5th Cir. 2014) ............................................... 7, 10, 11, 16
Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) ......................................................................... 5
Earl v. Boeing Co., No. 4:19-CV-507, 2021 WL 3343232 (E.D. Tex. Aug. 2, 2021) ................ 3, 4
Egana v. Blair’s Bail Bonds, Inc., No. CV 17-5899, 2018 WL 10593649 (E.D. La. May 29,
2018) ............................................................................................................................................ 5
Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67 (S.D.N.Y. 2020) .......................................... 3, 4
Freeman v. United States, 556 F. 3d 326 (5th Cir. 2009) ............................................................... 3
Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014) .................................................... 14, 19
In re Allergan Generic Drug Pricing Sec. Litig., No. CV2169449KSHCLW, 2021 WL 236594
(D.N.J. Jan. 25, 2021) .................................................................................................................. 6
In re Carbon Dioxide Indus. Antitrust Litig., 155 F.R.D. 209 (M.D. Fla. 1993) .................... 3, 4, 5
In re Lucent Techs. Inc. Sec. Litig., No. 2:00-CV-621, 2002 WL 32815233 (D.N.J. July 16,
2002) ............................................................................................................................................ 4
Kervin v. Supreme Serv. & Specialty Co., Inc., No. CV 15-01172, 2016 WL 8257256 (E.D. La.
May 24, 2016) .............................................................................................................................. 6
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Moussazadeh v. Tex. Dep’t of Crim. Just., 703 F.3d 781 (5th Cir. 2012) ................................. 7, 10
Phillips Petrol. Co. v. Shutts, 472 U.S. 797 (1985) ......................................................................... 4
Reynolds v. Cactus Drilling Co., LLC, No. MO15CV00101DAEDC, 2015 WL 12660110 (W.D.
Tex. Dec. 21, 2015) ..................................................................................................................... 2
Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) ............................................................. 7, 10
Transamerican Ref. Corp. v. Dravo Corp., 139 F.R.D. 619 (S.D. Tex. 1991) ............................... 5
Turner v. JP Morgan Chase Bank, N.A., No. 3:12-CV-2701-M (BF), 2013 WL 12139324 (N.D.
Tex. July 26, 2013) .................................................................................................................... 12
United States v. Ballard, 322 U.S. 78 (1944) .......................................................................... 10, 16
United States v. Seeger, 380 U.S. 163 (1965) ............................................................................. 7, 9
Other Authorities
3 William B. Rubenstein, Newberg on Class Action (6th ed.) .................................................... 4, 5
Br. of Appellee, U.S. Navy SEALs 1-26 v. Biden, No. 22-10077 .................................................... 7
David Prentice, Ph.D., Update: COVID-19 Vaccine Candidates and Abortion-Derived Cell
Lines, Charlotte Lozier Institute (June 2, 2021), https://lozierinstitute.org/update-covid-19-
vaccine-candidates-and-abortion-derived-cell-lines/ ................................................................. 10
Rules
Fed. R. Civ. P. 26(b)(1) .......................................................................................................... passim
Fed. R. Civ. P. 33 ..................................................................................................................... 10, 23
Navy Bureau of Personnel Instruction (BUPERSINST) 1730.11A, “Standards and Procedures
Governing the Accommodation of Religious Practices” (Mar. 16, 2020) ................................ 18
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INTRODUCTION
The class representative Plaintiffs, SEALs 1-3 and EOD 1 (“Named Plaintiffs”), satisfied
their discovery obligations by fully responding and properly objecting to Defendants’ first round
of discovery requests in a timely manner. Class Counsel also conferred with Defendants’ counsel
to provide additional insight into the sufficiency of each of the Named Plaintiff’s responses and
objections. As explained below, Defendants lack a basis to compel further answers from the
Named Plaintiffs because the Named Plaintiffs have already produced responsive information.
The Court should deny Defendants’ Motion for four reasons. First, in class action litigation
only the Named Plaintiffs must respond to discovery. Permitting Defendants to conduct discovery
of all non-class representative Plaintiffs (“Plaintiffs”) who were originally named in this action
nullifies the efficiency of this class action litigation. Requiring all Plaintiffs to respond is also
disproportionate to the needs of the case. Thus, the Court should not require the Plaintiffs to
respond to Defendants’ First Set of Interrogatories and Requests for Production of Documents or
any additional discovery requests issued in this matter.
Second, the Named Plaintiffs provided Defendants with significant information pertaining
to the sincerity of their religious beliefs. The Named Plaintiffs’ detailed explanations of their
religious objections to the COVID-19 vaccine and its substantial burden on their beliefs were
captured in their Religious Accommodation Requests (“RARs”), declarations filed in this matter,
and open court testimony at the Preliminary Injunction Hearing on December 20, 2021, where
Defendants’ counsel had the benefit of cross-examining Named Plaintiffs SEAL 2, SEAL 3, and
EOD 1 on the issue of sincerity. Those documents and testimony fully explain the nature and scope
of the Named Plaintiffs’ religious beliefs, religious objections, and how Defendants’ COVID-19
vaccine mandates substantially burden their religious beliefs. The Court should not compel the
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Named Plaintiffs to provide yet another answer to questions that they already fully and completely
answered multiple times in this litigation or to provide medical information that is wholly
irrelevant and disproportionate to the needs of this case.
Third, the Named Plaintiffs provided significant information on the issues of compelling
government interest and least restrictive means. Information relevant to those matters was fully
briefed over the course of this litigation and, most recently, on appeal. And as Class Counsel
specifically stated in their objections on behalf of each of the Named Plaintiffs, the information is
readily or more accessible to Defendants from Defendants’ own files or from documents or
information in Defendants’ possession. Because the Named Plaintiffs fully responded to each of
Defendants’ requests pertaining to these issues, the Court should not compel the Named Plaintiffs
to provide supplemental information.
Fourth, Defendants ask the Court to compel production of documents that Defendants
already possess, have been filed in this matter already, or simply do not exist. Today, Class Counsel
produced links to documents identified in the relevant interrogatories. But there are no responsive
documents related to social media and online public forums, meaning there is nothing to compel.
Therefore, because the Named Plaintiffs do not currently possess additional responsive documents,
the Court should deny this portion of Defendants’ motion.
DISCOVERY STANDARDS
Under Rule 26(b), “[p]arties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). “The party seeking discovery
bears the initial burden of showing that the materials and information sought are relevant to the
action or will lead to the discovery of admissible evidence.” Reynolds v. Cactus Drilling Co., LLC,
No. MO15CV00101DAEDC, 2015 WL 12660110, at *2 (W.D. Tex. Dec. 21, 2015). The scope of
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discovery is within the sound discretion of the trial judge, see Freeman v. United States, 556 F. 3d
326, 341 (5th Cir. 2009), who may “tailor discovery narrowly and . . . dictate the sequence of
discovery,” Crawford-El v. Britton, 523 U.S. 574, 598 (1998). The Court must limit discovery, if
“the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some
other source that is more convenient, less burdensome, or less expensive” or “the proposed
discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Rule 26(b)
may not be used “as a license to engage in an unwieldy, burdensome, and speculative fishing
expedition.” Crosby v. Louisiana Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011).
The Court must therefore be on guard against “abusive discovery.” Id.
DISCUSSION
I. Ordering The Plaintiffs to Respond to Discovery Would Nullify the Efficiency of
This Class Action and Would Be Disproportionate to The Needs of The Case.
The Court should reject Defendants’ improper attempt to obtain discovery from all
Plaintiffs in this class action. While all Plaintiffs originally filed claims against Defendants and
obtained a preliminary injunction from the Court, Defendants overlook the transformation that
occurred when the Plaintiffs amended the complaint and the Court certified Plaintiffs’ proposed
classes and named the four Named Plaintiffs as class representatives. See Fishon v. Peloton
Interactive, Inc., 336 F.R.D. 67, 70 (S.D.N.Y. 2020) (stating “class certification is a pivotal stage
in civil litigation”). “By virtue of not being chosen as class representatives, these Plaintiffs remain
as passive class members, on equal footing with all other non-representative class members.” In
re Carbon Dioxide Indus. Antitrust Litig., 155 F.R.D. 209, 211 (M.D. Fla. 1993); see also Earl v.
Boeing Co., No. 4:19-CV-507, 2021 WL 3343232, at *2 (E.D. Tex. Aug. 2, 2021) (“By declining
to continue holding himself out as a putative class representative, upon certification, [a non-class
representative plaintiff] would be on equal footing with all other non-representative class members
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as an absent class member.”); In re Lucent Techs. Inc. Sec. Litig., No. 2:00-CV-621, 2002 WL
32815233, at *2 (D.N.J. July 16, 2002) (affirming a magistrate’s holding that “the forty-one non-
lead, non-representative plaintiffs should be treated as passive class members and thus not subject
to discovery”); see also 3 William B. Rubenstein, Newberg on Class Action § 9:12 (6th ed.)
(stating “several courts have held that ‘named plaintiffs’ who are not ‘class representatives’ should
be treated as functionally equivalent to absent class members for discovery purposes”).
“[The Plaintiffs], like the other absent class members, [are] ‘not required to do anything.
[They] may sit back and allow the litigation to run its course, content in knowing that there are
safeguards provided for [their] protection.’” Earl, 2021 WL 3343232, at *2 (quoting Phillips
Petrol. Co. v. Shutts, 472 U.S. 797, 810 (1985)). “Were Defendants permitted to conduct
‘discovery of . . . named plaintiffs who were not class representatives,’ the Court, in effect, would
be condoning ‘the functional equivalent of permitting discovery of absent class members,’ thereby
nullifying the efficiency inherent in class-action litigation.” Id. (quoting 3 William B. Rubenstein,
Newberg on Class Action § 9:12 (5th ed.)); see also In re Carbon, 155 F.R.D. at 212 (“The
efficiencies of a class action would be thwarted if routine discovery of absent class members is
permitted, particularly on the issue of liability.”); Fishon, 336 F.R.D. at 69 (“Extensive discovery
of putative class members could undercut those efficiency gains by implementing the very
individualized approach that class actions are intended to avoid.”). “In certifying the class, this
Court found that the claims of the class representatives were typical of the class as a whole.” In re
Carbon, 155 F.R.D. at 212; see also Dkt. 140 at 12-14. This Court should deny Defendants’
attempts to undermine the efficiencies Plaintiffs gained by obtaining class certification and create
a burden disproportionate to the needs of this case.
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Denial of discovery is especially appropriate here because Defendants failed to
demonstrate a “particularized need to obtain information not available from the class
representatives.” See In re Carbon, 155 F.R.D. at 212. The party seeking discovery of non-class
representatives bears the burden of proof as to why the discovery is necessary. See Egana v. Blair’s
Bail Bonds, Inc., No. CV 17-5899, 2018 WL 10593649, at *4 (E.D. La. May 29, 2018). To show
a particularized need, some courts have required defendants to prove: “(1) the discovery is not
designed to take undue advantage of class members or to reduce the size of the class, (2) the
discovery is necessary, (3) responding to the discovery requests would not require the assistance
of counsel, and (4) the discovery seeks information that is not already known to the defendants.”
Id. (citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir. 1986)), and Clark v.
Universal Builders, 501 F.2d 324, 340-41 (7th Cir. 1974)).1 Other courts have applied a multi-
factor test requiring “the party seeking discovery to prove that information sought (1) is not sought
with the purpose or effect of harassment or altering membership of the class; (2) is directly relevant
to common questions and unavailable from the representative parties; and (3) is necessary at trial
of issues common to the class.” Id. (citing Dellums v. Powell, 566 F.2d 167, 187 (D.C. Cir. 1977));
see also Transamerican Ref. Corp. v. Dravo Corp., 139 F.R.D. 619, 622 (S.D. Tex. 1991).
Regardless of which test the Court chooses to apply, Defendants failed to meet their
burden. The Court need look no further than the fact that Defendants served identical Requests for
Production and Interrogatories on the Plaintiffs and Named Plaintiffs to see that no particularized
need exists here. Additionally, Defendants’ Motion concedes that they seek to reduce the size of
the class based on the unsupported assertion that there have been “changes in circumstances.” Dkt.
1 Defendants cite Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1005 (7th Cir. 1971), to argue they have
an unfettered right to engage in discovery of absent class members, but many courts have criticized Brennan. See,
e.g., Cox, 784 F.2d at 1556; In re Carbon, 155 F.R.D. at 212. Indeed, even the Seventh Circuit has significantly
narrowed Brennan. See Clark, 501 F.2d at 340–41.
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192 at 7. The discovery requests at issue also seek to challenge the sincerity of Plaintiffs’ beliefs,
which is improper for all Plaintiffs for the same reason it is improper for the Named Plaintiffs. See
Part II, infra. Defendants offer nothing beyond speculation that they might use information
obtained in discovery to move to decertify the class without making any effort to explain why
limiting discovery to the Named Plaintiffs would be insufficient for the needs of this case.2 But
speculation is insufficient to make the “strong showing” courts require to compel all Plaintiffs to
be subjected to the burdens of discovery in a class action case. See In re Allergan Generic Drug
Pricing Sec. Litig., No. CV2169449KSHCLW, 2021 WL 236594, at *2 (D.N.J. Jan. 25, 2021).3
This Court should therefore deny Defendants’ attempt to obtain discovery from Plaintiffs.
Lastly, while Defendants assert that “all other objections have been waived” by Plaintiffs,
“Plaintiffs expressly reserve[d] the right to supplement, clarify, revise, or correct any or all of the
objections herein, and to assert additional objections or privileges, in one or more subsequent
supplemental response(s),” and “[did] not waive their right to amend their objections,” as expressly
stated in their July 7, 2022 objections to Defendants’ First Set of Interrogatories. Defs.’ App. 626-
27. Should this Court overrule Plaintiffs’ objections, Plaintiffs have preserved their opportunity to
assert individualized objections in accordance with this Court’s rulings on Defendants’ Motion.
2 See Br. of Appellee at 61, U.S. Navy SEALs 1-26 v. Biden, No. 22-10077.
3 Defendants cite multiple cases where courts permitted defendants to engage in individualized discovery in Fair Labor
Standards Act (“FLSA”) collective actions. Dkt. 192 at 8. But FLSA collective actions and Rule 23 class actions are
inherently different. Kervin v. Supreme Serv. & Specialty Co., Inc., No. CV 15-01172, 2016 WL 8257256, at *3 (E.D.
La. May 24, 2016) (distinguishing Rule 23 classes from FLSA collective actions). FLSA collective actions are
inherently fact-specific, and examination of a plaintiff’s particular factual circumstances and employment settings is
often necessary to determine the merits of a FLSA claim. Id. Here, this Court has already determined that any factual
differences among class members are irrelevant because all class members unsuccessfully sought a religious
accommodation from the COVID-19 vaccine mandate. Dkt. 140 at 13-14. Thus, Defendants’ reliance on FLSA cases
is misplaced.
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II. The Named Plaintiffs Fully Responded and Properly Objected to Defendants’
Discovery Inquiries into The Sincerity of Their Religious Beliefs on More Than One
Occasion, And No Further Responses Are Required.
A. Interrogatories 3 and 6
For Interrogatories 3 and 6, Defendants assert that they are “entitled to inquire into . . . [t]he
nature and scope of Plaintiffs’ religious objections to the COVID-19 vaccine, so that Defendants
can assess whether they should challenge sincerity . . . .” Dkt. 192 at 5; see also Defs.’ App. 031-
32 (text of Interrogatories 3 and 6). They also claim the information they seek is “a description of
the particular religious beliefs that are currently leading [the Plaintiffs] to object to the COVID-19
vaccine,” and that “[the] information regarding the nature and scope of Plaintiffs’ religious beliefs
is directly relevant to the claims presented here for multiple reasons.” Dkt. 192 at 10-11. But the
Named Plaintiffs provided Defendants with answers explaining their religious beliefs and religious
objections as they relate to the COVID-19 vaccine on multiple occasions and, thus, no further
responses are required.
When an inquiry is made into an individual’s religious beliefs, the “court’s inquiry is
limited to focusing upon the individual’s motivation. Specifically, a court’s task is to decide
‘whether [the individual’s beliefs] are, in his own scheme of things, religious.’” Davis v. Fort Bend
Cnty., 765 F.3d 480, 485 (5th Cir. 2014) (citing United States v. Seeger, 380 U.S. 163, 185 (1965))
(emphasis in original). A “belief is ‘religious’ if it is ‘[a] sincere and meaningful belief which
occupies in the life of its possessor a place parallel to that filled by . . . God.” Id. “The specific
religious practice must be examined rather than the general scope of applicable religious tenets,
and the plaintiff’s ‘sincerity’ in espousing that practice is largely a matter of individual credibility.”
Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013) (quoting Moussazadeh v. Tex. Dep’t of
Crim. Just., 703 F.3d 781, 792 (5th Cir. 2012)).
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In response to Interrogatories 3 and 6, the Named Plaintiffs made both specific and
continuing objections, highlighting the irrelevancy, overbreadth, and unduly burdensome and
inappropriate nature of the Defendants’ probe into the Named Plaintiffs’ sincerity.4 Named
Plaintiffs directed Defendants to their RARs, declarations filed in this matter, and hearing
testimony, where applicable. Defs.’ App. 564-66, 580, 582, 595-98, 612-13, 615. These materials
provide an overabundance of information related to the Named Plaintiffs’ sincerity. In fact, only a
review of Plaintiffs’ RARs was sufficient for the Navy to make its alleged individualized analysis
and for this Court to determine that “[Named] Plaintiffs’ beliefs about the vaccine are undisputedly
sincere.” Dkt. 66 at 4; see also Dkt. 17-6 at 2-15 (declarations of SEAL 1, SEAL 2, and SEAL 3);
Dkt. 17-8 at 27-32 (declaration of EOD 1); Dkt. 59 at 7-15, 107-110 (supplemental declarations
of Named Plaintiffs); Tr. of Hr’g. on Prelim. Inj. 8:15-101:3. The Named Plaintiffs have been
generously forthcoming about their religious objections, and the Defendants’ seeking anything
further is simply an inappropriate inquiry nearing harassment. Fed. R. Civ. P. 26(g)(1)(B)(ii).
While Defendants may inquire into the Named Plaintiffs’ religious beliefs as they pertain
to Defendants’ COVID-19 mandates, they may only pursue such inquiry for the narrow purpose
of understanding the Named Plaintiffs’ objections to the COVID-19 vaccine. The discovery
answers and materials already possessed by the Defendants and filed in this case satisfy this
inquiry. But Defendants’ discovery questions exceed this narrow inquiry and seek information
completely unrelated to the Named Plaintiffs’ religious objections to the COVID-19 vaccine, such
as the Named Plaintiffs’ use of a wide variety of other products associated with aborted fetal cells
or tissue without any timeframe limitations. Thus, Defendants’ inquiry constitutes an uninhibited
fishing expedition into all aspects of the Named Plaintiffs’ religious beliefs and practices, which
4 At this time, Named Plaintiffs reassert all objections made to Defendants’ First Set of Interrogatories and Requests
for Production. See Defs.’ App. 559-687; 704-709.
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is entirely outside the scope of Rule 26(b) and disproportionate to the needs of this case. But as
Defendants now assert in their brief, they seek “only a description of the particular religious beliefs
that are currently leading them to object to the COVID-19 vaccine.” Dkt. 192 at 10. On that issue,
the Named Plaintiffs satisfied their discovery obligations with the answers already provided, Fed.
R. Civ. P. 33, and no supplemental response is required for Interrogatories 3 and 6.
Defendants also assert that “[a] full interrogatory response . . . provides evidence of
whether or not the objection is religious in nature, whether it is burdened by the terms of the
mandate or other policies given the presently available vaccines, and whether less restrictive means
are available to accommodate Plaintiffs’ beliefs,” specifically pointing to the example that
“Novavax may not substantially burden those beliefs.”5 Dkt. 192 at 11. But the Named Plaintiffs
clearly established that their objections are “in their own scheme of things, religious,” Seeger, 380
U.S at 185, that the COVID-19 mandate burdens their religious beliefs, and that less restrictive
means, such as those that were employed almost two years prior to the availability of COVID-19
vaccines,6 are available.
Considering the comprehensive information each Named Plaintiff provided to Defendants
regarding his religious convictions and his objections to the COVID-19 vaccine through the RAR
process and the additional information each Named Plaintiff provided in this litigation,
5 Defendants assume that Novavax was not developed or tested with aborted fetal cell tissue. Dkt. 192 at 11-12. But
not only is Novavax not FDA-approved and not mandated by the Defendants’ COVID-19 vaccination requirements,
but there is publicly available information to suggest that fetal cell lines may have been used in the testing phase of
that vaccine. See David Prentice, Ph.D., Update: COVID-19 Vaccine Candidates and Abortion-Derived Cell Lines,
Charlotte Lozier Institute (June 2, 2021), https://lozierinstitute.org/update-covid-19-vaccine-candidates-and-abortion-
derived-cell-lines/.
6 As stated in Named Plaintiffs’ responses to Interrogatories 11 and 12 on least restrictive means, alternatives to
vaccination worked before the vaccine was available. See Dkt. 17-6 at 2-15; see also Dkt. 196-1 at 22-23 (Tr. 33:18-
34:8) (Testimony of Admiral Lescher stating that he was unaware of any combat operations negatively impacted by
COVID-19).
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“examin[ing] religious convictions any more deeply would stray into the realm of religious
inquiry, an area into which [courts] are forbidden to tread.” Moussazadeh, 703 F.3d at 792; see
also United States v. Ballard, 322 U.S. 78, 86-87 (1944) (“Men may believe what they cannot
prove. They may not be put to proof of their religious doctrines or beliefs”). Indeed, “the sincerity
of a plaintiff’s engagement in a particular religious practice is rarely challenged,” and “claims of
sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s
credible assertions.” Tagore, 735 F.3d at 328; see also Davis, 765 F.3d at 485-86 (“A court’s
inquiry is limited to focusing upon the individual’s motivation.”). Therefore, courts “‘must refuse
to dissect religious tenets just because the believer [’s] . . . beliefs are not articulated with the clarity
and precision that a more sophisticated person might employ.’” Davis, 765 F.3d at 487 (quoting
A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248, 261 (5th Cir. 2010)). For these reasons,
supplemental responses to Interrogatories 3 and 6 are not required.
B. Interrogatory 7
In Interrogatory 7, Defendants inquire into the substantial burden the Named Plaintiffs face
as a result of the COVID-19 vaccine. Defs.’ App. 566-67, 582, 598; 615-16. The Named Plaintiffs
objected to this interrogatory as seeking duplicative information or information already possessed
by the Defendants. Id. Despite these ongoing objections, each of the Named Plaintiffs directed the
Defendants to his RAR, declarations filed in this matter, and, in the instance of SEALs 2 and 3 and
EOD 1, to the transcript of their testimony from the December 20, 2021 Preliminary Injunction
Hearing, all of which adequately describe, either in part or in whole, the substantial burden he
faces. Id.
Defendants claim that “Plaintiffs’ RARs often do not explain how their religious beliefs
are substantially burdened by the military’s COVID-19 vaccine requirement,” or if “less restrictive
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means will be available.” Dkt 192 at 12. The example Defendants provided is that “SEAL 3’s RAR
. . . explains that his objection is based on the Catholic doctrine of proportionality but does not
explain how he determined that the vaccine would violate these precepts.” Id. Defendants point to
the example that “Novavax may not substantially burden those beliefs.” Dkt. 192 at 11.
While the Named Plaintiffs hold firm that their RARs do, in fact, explain how their
religious beliefs are substantially burdened by the military’s COVID-19 vaccine requirement, as
stated above, “[c]ourts ‘must refuse to dissect religious tenets just because the believer[’s] . . .
beliefs are not articulated with the clarity and precision that a more sophisticated person might
employ.’” Davis, 765 F.3d at 487 (quoting A.A., 611 F.3d at 261). As for least restrictive means,
Named Plaintiffs fully responded to that inquiry in response to Interrogatory 11. See Part III, supra.
Defs.’ App. 568-69, 584-85, 600-601, 618-19.
Defendants also claim that “[t]he question of substantial burden may be partially answered
by the reasons that Plaintiffs object to the vaccines available at the time they submitted their RAR,
but it is not fully answered by those objections” because it does not address the Plaintiffs’
allegations of harm. Dkt. 192 at 14. But the issue of “harm” is not the focus of Interrogatory 7.
The Named Plaintiffs responded to Defendants’ “harm” or adverse consequence-related inquiry in
response to Interrogatory 10. See Defs.’ App. 568; 584; 600; 617-18 705-06. SEAL 2, SEAL 3,
and EOD 1’s responses to Interrogatory 10 direct the Defendants to the transcript from the
December 20, 2021 Preliminary Injunction Hearing, Defs. App. 584, 600, 617-18, and for SEAL
1, to the declarations he filed in this matter, Defs.’ App. 568. In SEAL 2’s August 12, 2022,
supplemental responses to Defendants’ First Set of Interrogatories, he includes the fact that he was
prevented from attending a required training due to the Navy’s travel restrictions for unvaccinated
individuals. Defs.’ App. 705-06.
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Defendants can also review the Named Plaintiffs’ declarations already filed in this matter,
as well as other relevant filings, such as the emergency motion filed on behalf of SEAL 1 on June
3, 2022. See Dkt. 17-6 at 2-15 (declarations of SEAL 1, SEAL 2, and SEAL 3); Dkt. 17-8 at 27-
32 (declaration of EOD 1); Dkt. 59 at 7-15, 107-110 (supplemental declarations of Named
Plaintiffs); Dkt. 174 at 9-10 (declaration of SEAL 1). And as this Court noted in its March 28,
2022, Order on Motions for Class Certification and Class-Wide Preliminary Injunction, “[t]he
Named Plaintiffs and a number of class members have already provided evidence of demotions,
reassignments, threats of separation, and other punitive measures as a result of their religious
accommodation requests.” Dkt. 140 at 23 (citing to declarations of Named Plaintiffs and class
members regarding adverse action).
Supplemental responses are not required this issue. Defendants are simply asking the
Named Plaintiffs to restate and compile information already provided or filed in this matter. In
other words, Defendants are asking the Court to compel the Named Plaintiffs to marshal their
evidence, which is not an appropriate basis for compelling discovery. Turner v. JP Morgan Chase
Bank, N.A., No. 3:12-CV-2701-M (BF), 2013 WL 12139324, at *1 (N.D. Tex. July 26, 2013).
In any event, information on the issue of harm is more accessible to Defendants from their
own files, as the adverse consequences Plaintiffs have suffered are the direct result of Defendants’
own policies. Defendants are aware of the harm caused by such policies because it became a central
issue of Defendants’ appeal for a stay of this Court’s preliminary injunction, to the extent the
injunction prevented Defendants from making “deployment, assignment, and other operational
decisions.” Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301 (2022). No matter how Defendants’
decisions are classified, it is a fact that each “operational” decision employed by the Navy that
prevents the Plaintiffs from doing their jobs will continue to inflict harm. While the Named
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Plaintiffs are aware of their continuing obligation to supplement their responses to all discovery
throughout the course of this litigation, Defendants cannot claim ignorance of the adverse
consequences that have resulted and will continue to result from their discriminatory “operational”
policies.
Finally, Defendants assert that supplemental responses to Interrogatories 3, 6, and 7 are
necessary because “the scope and timing of Plaintiffs’ religious beliefs leading to objection to the
vaccine may shed light on the propriety of their assignments, and other decisions that Plaintiffs
purport to challenge, as well as the appropriate remedy.” Dkt. 192 at 11-12. The example
Defendants provide is that “a service member unable to use medication tested on fetal cells under
any circumstances may be unable . . . to administer or receive emergency medication in the field
and is unlikely to be eligible for deployment.” Dkt. 192 at 12. But, just as Defendants’ counsel’s
similar line of questioning was considered irrelevant at the December 20, 2021, Preliminary
Injunction Hearing during cross-examination of SEAL 3, it is irrelevant now. As Defendants’
counsel stated at the hearing, “I’m not inquiring as to whether or not his beliefs are accurate. I’m
inquiring as to what they are and how are they going to affect his service in his unit.” Tr. of Hr’g
on Mot. for Prelim. Inj. 47:11-14. This Court responded, “Right. And so, but as it related to this
case, this case only deals with the COVID vaccine.” Id. At 47:15-16. If Defendants are seeking
supplemental answers to Interrogatories 3, 6, and 7 to determine the propriety of Plaintiffs’
assignments on the basis of anything other than their religious objection to the COVID-19 vaccine,
the Named Plaintiffs object on the basis of relevance.
C. Interrogatories 5 and 8
Interrogatories 5 and 8 request identification of “documents . . . consulted in preparation
of [each Plaintiff’s] request to be exempted from DoD’s and the Navy’s COVID-19 vaccination
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requirement based on [their] religious beliefs,” and a detailed description of “all research, inquiry
and other methods [Plaintiffs] used to determined that DoD and the Navy’s COVID-19 vaccination
requirement is contrary to [Plaintiff’s] religious beliefs, including identification of all sources
consulted . . . .” Defs.’ App. 565-67. The Named Plaintiffs continue to stand on their original
objections to these interrogatories. A directive compelling production of additional information on
this point is unnecessary.
During the parties’ first meet-and-confer, Class Counsel informed Defendants’ counsel that
the Named Plaintiffs’ responses to Interrogatories 5 and 8 were complete but would verify all
responsive information was provided. Defs.’ App. 697. Upon Class Counsel’s second inquiry to
the Named Plaintiffs for additional responsive information, SEAL 2 identified two more
documents, which were included in his August 12, 2022, supplemental response. Defs.’ App. 705.
But because the documents the Named Plaintiffs identified and relied on in response to
Interrogatories 5 and 8 do not fall within Defendants’ arbitrary laundry list of documents that could
possibly qualify as responsive to those requests, Defendants are seeking “declarations stating that
the responses identify all research done in coming to the conclusion that the vaccines violate their
beliefs.” Dkt. 192 at 17.
“The fact that a party may disbelieve or disagree with a response to a discovery request
. . . . is not a recognized ground for compelling discovery, absent some indication beyond mere
suspicion that the response is incomplete or incorrect.” Heller v. City of Dallas, 303 F.R.D. 466,
486 (N.D. Tex. 2014). But before a response to a discovery request can be assessed for
completeness or correctness, the request itself must be relevant and proportional to the needs of
the case. Fed. R. Civ. P. 26(b)(1).
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The Named Plaintiffs objected to Interrogatories 5 and 8 on the grounds of relevance and
proportionality, and the Named Plaintiffs complied with their discovery obligations by referencing
every document they could recall after conducting a reasonable inquiry, pursuant to Fed R. Civ. P.
26(g)(1). Yet Defendants improperly contend that the Named Plaintiffs’ responses to
Interrogatories 5 and 8 are inadequate for the variety of arbitrary reasons referenced above. Dkt.
192 at 17. Without more, Defendants’ assertions amount to mere suspicion. And because
responding to such speculation is disproportionate to the needs of this case, there is no basis for
the Named Plaintiffs to engage in a third search for information.7
D. Interrogatory 13 and Requests for Production 9 and 10
According to Defendants, Interrogatory 13 and Requests for Production (RFP) 9 and 10
“seek[] discrete sets of medical information relevant to the claims here . . .” Dkt. 192 at 23. But as
Class Counsel stated in their specific and continuing objections, those discovery requests are
“overbroad, unduly burdensome, irrelevant, arbitrary, and disproportionate to the needs of this
case.” Defs.’ App. 570, 586, 601-02, 620, 645-46, 658-59, 671-72, 684-85. Thus, no response
other than Class Counsel’s specific objections is required.
As stated in Part II, supra, while Defendants may inquire into the Named Plaintiffs’
religious beliefs as they pertain to Defendants’ COVID-19 mandates, they may only pursue such
inquiry for the narrow purpose of understanding the Named Plaintiffs’ objections to the COVID-
19 vaccine. The discovery answers and materials already possessed by the Defendants and filed in
this case satisfy this inquiry. Interrogatory 13 and RFPs 9 and 10 exceed this narrow inquiry and
seek information completely unrelated to the Named Plaintiffs’ religious objections to the COVID-
7 Named Plaintiffs recognize their obligation to supplement their responses to discovery, as they affirmatively stated
in their July 7, 2022, responses to Defendants’ First Set of Interrogatories, and will do so, should more documents be
realized or found.
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19 vaccine, such as the Named Plaintiffs’ entire medical history over the past five years. Thus,
these discovery requests constitute an uninhibited fishing expedition into all aspects of the Named
Plaintiffs’ religious beliefs and practices, which is entirely outside the scope of Rule 26(b) and
disproportionate to the needs of this case.
As Defendants now assert in their brief with respect to Interrogatories 3 and 6, they
acknowledge that it is only appropriate to seek “only a description of the particular religious beliefs
that are currently leading them to object to the COVID-19 vaccine.” Dkt. 192 at 10. For that reason
alone, Defendants would appear to agree that the information requested regarding the Named
Plaintiffs’ medical history is entirely irrelevant and disproportionate to the needs of this case.
Because no supplemental responses are required for Interrogatory 13 and RFPs 9 and 10,
Defendants’ motion should be denied on these points.
Regarding the overall issue of sincerity, this Court recently noted that
Plaintiffs and potential class members have provided evidence of sincerity in the
process of applying for religious accommodation. As part of the Navy’s
accommodation process, applicants must interview with a chaplain, who completes
both a checklist and memorandum attesting to the “sincerity” of the applicant’s
beliefs. See ECF No. 62. In short, everyone eligible for the class has submitted a
religious accommodation request, and no one may submit that request without a
chaplain’s memorandum attesting to the applicant’s sincerity. Thus, all potential
class members have carried their (light) burden of demonstrating their religious
beliefs are sincere.
Dkt. 140 at 11-12. But even in the earlier stages of this litigation, this Court held that “Plaintiffs’
beliefs about the vaccine are undisputedly sincere, and it is not the role of this Court to determine
their truthfulness or accuracy.” Dkt. 66 at 4; see also Davis, 765 F.3d 480, 478 (5th Cir. 2014)
(citing Ballard, 322 U.S. at 86).
And by the Navy’s own accounts, it would agree. Pursuant to the Navy’s religious
accommodation process, a RAR could only be submitted if a chaplain attested to the sincerity of
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the service member’s religious beliefs regarding the COVID-19 vaccine. Navy Bureau of
Personnel Instruction (BUPERSINST) 1730.11A, “Standards and Procedures Governing the
Accommodation of Religious Practices” at 8-9 (Mar. 16, 2020). And during the June 30, 2022,
deposition of Admiral William Lescher, the Navy’s Vice Chief of Naval Operations, he
unequivocally asserted that he had no reason to doubt the sincerity of any service member’s
religious beliefs underlying their RARs. Dkt. 196-1 at 33 (Tr. 75:11-16).
“Thus, all potential class members have carried their (light) burden of demonstrating their
religious beliefs are sincere.” Dkt. 140 at 11-12. Requiring anything more from the Named
Plaintiffs on the issue of sincerity, such as a full release of their medical records over the last five
years and a third search for additional documents consulted in preparation of their RARs or
consulted to determine that the COVID-19 vaccine mandates were contrary to their religious
beliefs, is entirely outside the scope of Rule 26(b). The Named Plaintiffs have fully responded to
each of Defendants’ requests pertaining to the sincerity of their religious beliefs, and no further
responses are required.
III. The Named Plaintiffs Have Fully Responded to Inquiries Related to Compelling
Government Interest and Least Restrictive Means, And No Further Responses Are
Required.
Just as the Named Plaintiffs should not be compelled to provide additional information on
the issue of sincerity, the same holds true for Defendants’ inquiries into compelling government
interest (Interrogatory 9) and least restrictive means (Interrogatories 11 and 12). While Class
Counsel stand firm on their objections to these inquiries for all the specific reasons stated in each
Named Plaintiff’s responses to Defendants’ First Set of Interrogatories, Defs. App. 567-70, 583-
86, 599-601, 617-19, Defendants have no basis to assert that the Named Plaintiffs have not fully
complied with their discovery obligations.
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In their responses to Interrogatories 9, 11, and 12, the Named Plaintiffs directed Defendants
to their briefing in this matter that clearly explains, on numerous occasions, and most recently on
appeal, their reasons for believing Defendants do not have a compelling interest in vaccinating
each individual Plaintiff. For example, Plaintiffs asserted that “99.4% of active-duty Naval service
members are vaccinated against COVID-19,” and “Defendants can hardly argue that a 100%
vaccination rate is a magic bullet against COVID-19 infection, as vaccinated individuals can
contract and transmit the virus.” Dkt. 16 at 19-20. Further, “Defendants have granted across-the-
board exemption to vaccine trial participants and have granted at least some medical exemptions,”
and have permitted “non-receipt of the vaccine due to participation in a clinical trial or due to a
medical contraindication.” Id. at 24.
As for least restrictive means, Plaintiffs asserted that “Defendants have undermined their
position by their own inaction,” when “multiple COVID-19 vaccines have been widely available
under Emergency Use Authorizations” for many months prior to Defendants’ COVID-19 vaccine
requirement. Id. at 21. The Named Plaintiffs also asserted that they each believe they “could fully
and capably perform [their jobs] using recognized COVID-19 mitigation techniques such as
masking, social distancing, regular testing, or any other protocol that does not involve violating
[their] religious beliefs.” Dkt. 17-6 at 2-15 (declarations of SEAL 1, SEAL 2, and SEAL 3); Dkt.
17-8 at 27-32 (declaration of EOD 1). This fact was substantiated by EOD 1’s testimony at the
December 20, 2021 Preliminary Injunction Hearing regarding his receipt of “a deployment joint
service accommodation medal award from special operations command Korea . . . . [f]rom January
2nd, 2020 to July, 2020 . . . . for the missions and [successful] executions of our tasks during that
deployment.” Tr. of Hr’g on Prelim. Inj. at 90:21-91:13. This fact was further substantiated during
Admiral Lescher’s June 30, 2022 deposition, where he stated he was unaware of any combat
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operations negatively impacted by COVID-19, and that he was also unaware of specific examples
of COVID-19 making a medical evacuation harder, being contracted through a rebreathing device,
or being contracted on a submarine. Dkt. 196-1 at 22-23 (Tr. at 33:18-34:8), 27 (Tr. at 50:15-
51:16).
As stated in Part II, supra, “[t]he fact that a party may disbelieve or disagree with a response
to a discovery request . . . . is not a recognized ground for compelling discovery, absent some
indication beyond mere suspicion that the response is incomplete or incorrect.” Heller, 303 F.R.D.
at 486. And as Class Counsel specifically stated in each of the objections, information responsive
to Interrogatories 9, 11, and 12 “is readily or more accessible to Defendants from Defendants’ own
files, from documents or information in Defendants’ possession, or from documents or information
that Defendants previously produced to Plaintiff[s].” Defs. App. 567-70, 583-86, 599-601, 617-
19. Because the Named Plaintiffs fully responded to each of Defendants’ requests pertaining to
compelling government interest and least restrictive means, Defendants’ motion should be denied
on these points.
IV. Defendants’ Motion Should Be Denied Because Relevant Requested Documents
Have Been Produced.
Defendants erroneously claim that “to date, Plaintiffs . . . have not produced a single
responsive document, nor given a date certain by which they will do so.”8 Dkt. 192 at 19. In reality,
Defendants ask the Court to compel production of documents that are already in the Defendants’
control or custody, have been filed in this matter already, or simply do not exist. Further,
Defendants correctly concede that they are willing to forego production of the “various versions
of the Bible cited, any publicly available Navy policy documents, and any publicly available
8 Defendants’ Motion states they produced “thousands of responsive pages” to argue that Named Plaintiffs’ production
is somehow insufficient. Dkt. 192 at 2 n.1. In response, Class Counsel directs the Court to Admiral Lescher’s testimony
regarding the Navy’s own document production. Dkt. 196-1 at 35-36 (Tr. 82:16-88:10).
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document to which Plaintiffs could provide a website link . . .” Id. Therefore, this Court should
deny Defendants’ motion, as all responsive documents have been produced by the Named
Plaintiffs.
A. Defendants already possess the documents within Named Plaintiffs’ possession,
custody, or control, or agreed to forego production of documents within the scope
of Plaintiffs’ initial disclosures.
The Named Plaintiffs identified three categories of documents for use in support of their
claims: “(1) Documents related to Named Plaintiffs’ religious accommodation requests; (2)
Documents related to the fifty-point standard operating procedure used by Vice Admiral Nowell
and his staff; and (3) Documents related to the Navy’s policies and procedures concerning religious
accommodation requests.” Defs.’ App. 714. In RFP 1, the Defendants asked each Named Plaintiff
to produce “any and all documents identified in Plaintiffs’ initial disclosures in this action, without
regard to date limitations.” Def. App. 641; 654; 667; 680. Plaintiffs objected on the grounds that
this request is overbroad, unduly burdensome, and seeks documents that are more accessible to the
Defendants from their own files. Id. In addition, each Named Plaintiff directed Defendants to his
RAR and his answer in Interrogatory 5, which identify all documents consulted in preparing his
RAR. Id. Thus, the Named Plaintiffs fully answered these requests for production.
1. Defendants already possess the Named Plaintiffs’ RARs and related documents.
Defendants’ request to compel the Named Plaintiffs to produce documents related to their
RAR’s should be denied because Defendants already possess the requested documents. Defendants
cite several cases that all concern the production of publicly available documents, Dkt. 192 at 21;
however, the issue is not whether the documents are publicly available, it is whether Defendants
already possess the documents—and they do. Defendants are asking the Named Plaintiffs to
produce documents that the Plaintiffs previously submitted to the Navy and that the Navy has full
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access to within its own files. In fact, the Navy had access to SEAL 1, SEAL 2, SEAL 3, and EOD
1’s RAR’s before this litigation even began. Compare Defs.’ App. 641; 654; 667; 680 with Dkt.
1. In the case of RAR endorsements or denials, those documents are created by and belong to
Defendants. Additionally, the RAR requests of SEAL 2, SEAL 3, and EOD 1 and all other related
documents in the Named Plaintiffs’ possession are easily accessible to Defendants, as they were
used as exhibits in the Preliminary Injunction Hearing on December 20, 2021. See Pls.’ Prelim.
Inj. Hr’g Ex. PX-1 - PX-26. Therefore, placing a burden of production on the Named Plaintiffs is
unnecessary when Defendants have these documents in their possession already. See Fed. R. Civ.
P. 33 (d)(1).
Importantly, Defendants production of administrative records for several of the Plaintiffs
demonstrates that they already possess the documents they now demand from the Named
Plaintiffs. Further, Defendants are willing to limit this motion to exclude: “the RARs as submitted
. . . ” therefore conceding the argument that Named Plaintiffs need not compile and turn over a
portfolio of their RAR documents. Dkt. 192 at 19. The Defendants also demand “an agreement on
the completeness and authenticity of the RAR’s / appeals in Defendants’ possession.” Id. But this
agreement is unnecessary, as Named Plaintiffs intend to rely on the RAR documents that they
officially submitted to their commanding officers.9
Finally, Defendants raise concern that the Named Plaintiffs are in possession of emails and
other documents related to their RARs. But what the Named Plaintiffs have in their possession,
custody, or control has already been filed in this case, leaving nothing further for disclosure at
present. Defendants agreed to exclude any document that Plaintiffs can identify as “previously . .
9 Class Counsel notes that this proposed agreement is curious, as it leads Counsel to wonder that the Defendants have,
for some reason, received different versions of the RAR documents than what our clients submitted to proper authority.
If that is the case, Class Counsel will investigate the matter further in an appropriate forum.
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. submitted in this action.” Dkt. 192 at 19. The Named Plaintiffs direct the Defendants to the
numerous appendices and hearing exhibits filed. Further, Class Counsel fully understands their
ongoing duty to supplement initial disclosures throughout the discovery portion of the litigation.
And, under this Court’s scheduling order, there is ample opportunity for the parties to exchange
any exhibits on which they might rely to support their claims at trial. See Dkt. 158. At this time,
there is nothing more to give to the Defendants that has not been previously filed or relied on in
open court.
Therefore, because Defendants possess the Named Plaintiffs’ RAR documents and
Plaintiffs already filed or used as hearing exhibits any other related documents, there is nothing to
produce related to initial disclosures.
2. Defendants already possess the fifty-point standard operating procedure and
related documents used by Vice Admiral Nowell.
Defendants also demand that the Named Plaintiffs produce the fifty-point standard
operating procedure – a document the Navy itself created. The fifty-point document has been in
the public record since December 23, 2021, and was served on Defendants’ counsel. Dkt. 62.
Further, Class Counsel informed Defendants’ counsel that the Named Plaintiffs have nothing
further to produce in relation to the fifty-point standard operating procedure that is not already
submitted in the various appendices in this case. The Named Plaintiffs will supplement their
responses if they identify additional documentation.
3. Defendants agreed to forego production of any publicly available Navy policy
documents.
Defendants’ motion concedes that they will “forego production of . . . any publicly
available Navy policy documents.” Dkt. 192 at 19. The Named Plaintiffs agree, as it would be
unnecessary to produce documents drafted, created, and controlled by the Navy. The Named
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Plaintiffs have nothing further to produce that would not be captured by the parties’ agreement or
previously submitted in appendices in this case. Therefore, no further production is required.
B. The Named Plaintiffs produced links to documents related to Interrogatories.
In RFP 3, Defendants seek production of “[a]ny and all documents identified in response
to Defendant’s interrogatories in this action.” Defs.’ App. 642; 655; 668; 681. This includes
Interrogatory 2, which asks Named Plaintiffs to “identify all documents that you consulted in
preparing your responses to these interrogatories”; Interrogatory 5, which asks Named Plaintiffs
to “identify all documents that you consulted in preparing your request to be exempted from DoD’s
and the Navy’s COVID-19 vaccination requirement based on your religious beliefs”; and
Interrogatory 8, which asks the Named Plaintiffs to “describe in detail all research, inquiry and
other methods you used to determine that DoD and the Navy’s COVID-19 vaccination requirement
is contrary to your religious beliefs, including identification of all sources consulted (including
written, recorded, or digital material, authorities, experts, or individuals, as well as verbal sources),
the dates of consultation, and the substance of the information consulted.” Defs.’ App. 563; 565;
567, 579, 581-83, 595, 597, 599, 600, 611, 614, 616. Although Defendants claim that each
interrogatory “seek[s] a limited category of discrete information relevant to evaluation of
Plaintiffs’ claims, including the nature, scope and sincerity of their religious objections, the burden
on those beliefs, and the availability of less restrictive means to accommodate those beliefs,” Dkt.
192 at 22, the Named Plaintiffs find each of the interrogatories to be an improper probe of sincerity,
see Part II, supra.
In the Named Plaintiffs responses to Defendants’ First RFPs, they each state that
“[p]ublicly available documents including, but not limited to, newspaper clippings, court papers,
and documents available on the Internet, will not be produced.” Defs.’ App. 638. Additionally, the
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Defendants agreed to forego production of various versions of the Bible cited, any publicly
available Navy policy documents, and any publicly available document to which Plaintiffs could
provide a website link.” Dkt. 192 at 19. Although the Named Plaintiffs maintain that is it
unnecessary that they produce links to documents that are easily accessible on the internet by a
simple web browser search, such as the Catholic Catechism, in the interest of maintaining the
expediency of this class action and saving the Court from having to conduct a hair-splitting
exercise into what is publicly available and what is not, today, Class Counsel provided the
Defendants with links to the documents that are responsive to the RFPs. Therefore, the Court
should deny the Defendants’ Motion, as no further production is required.
To the extent that Defendants seek production beyond that which is identified already in
Named Plaintiffs’ response to Interrogatory 2, 5, and 8 and supplemental response, the Named
Plaintiffs’ direct the Court to its discussion in Part II, supra.
Defendants also seek production of documents under RFP 4. This request is duplicative
and should be denied by this Court. RFP 4 asks for “[a]ny and all documents used, consulted or
referred to in responding to Defendants’ interrogatories in this action.” Defs.’ App. 642, 655, 668,
681. This RFP seeks information corresponding to Interrogatory 2, which asks for identification
of “all documents consulted in preparing your responses to these interrogatories.” Defs.’ App. 563;
579; 595; 611. But RFP 4 is unnecessary, as the desired documents would already be produced
under RFP 3, which seeks all documents identified in the Named Plaintiffs’ Interrogatory
responses. Therefore, no further production is required and the motion should be denied.
C. Plaintiffs have no responses to RFP 8 - Communications and Social Media
Documents.
Defendants seek “[a]ny and all documents that describe, relate, refer to, or reflect any posts
[Named Plaintiff] ha[s] made on social media . . . , blogs, internet message boards, chat rooms, or
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other public forums online regarding your religious beliefs, the COVID-19 vaccines, or
DoD/Navy’s COVID-19 vaccination requirement.” Defs.’ App. 644. The Named Plaintiffs
objected to this request because it is overly broad, unduly burdensome, and seeks irrelevant
information. Defs.’ App. 644-45; 657-58; 670-71; 683-84. Despite this improper probe into the
Named Plaintiffs’ sincerity, see Part II, supra, the Named Plaintiffs searched and three of the four
Named Plaintiffs stated that he is “not in possession of any documents relevant to this request,”
Defs.’ App. 645; 658; 684, and the final Named Plaintiff stated that he “does not engage in social
media,” making the recovery of responsive documents impossible. Defs.’ App. 670-71. Instead of
accepting that no responsive documents exist, Defendants included these points in its motion.
Because there are no responsive documents, this Court should deny the Defendants Motion to
Compel Production.
CONCLUSION
In conclusion, this Court should deny Defendants’ Motion to Compel as to any discovery
from the Plaintiffs, any discovery concerning the sincerity of Named Plaintiffs’ religious beliefs,
and any discovery related to the government’s compelling interest and least restrictive means.
Further, this Court should deny Defendants’ motion because relevant responsive documents have
been produced.
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Respectfully submitted this 2nd day of September, 2022.
/s/ Danielle A. Runyan
KELLY J. SHACKELFORD
Texas Bar No. 18070950
JEFFREY C. MATEER
Texas Bar No. 13185320
HIRAM S. SASSER, III
Texas Bar No. 24039157
DAVID J. HACKER
Texas Bar No. 24103323
MICHAEL D. BERRY
Texas Bar No. 24085835
JUSTIN BUTTERFIELD
Texas Bar No. 24062642
Danielle A. Runyan *
New Jersey Bar No. 027232004
Holly M. Randall
Texas Bar No. 24128002
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
jmateer@firstliberty.org
hsasser@firstliberty.org
dhacker@firstliberty.org
mberry@firstliberty.org
jbutterfield@firstliberty.org
drunyan@firstliberty.org
hrandall@firstliberty.org
JORDAN E. PRATT
Florida Bar No. 100958* **
FIRST LIBERTY INSTITUTE
227 Pennsylvania Ave., SE
Washington, DC 20003
Tel: (972) 941-4444
jpratt@firstliberty.org
*Admitted pro hac vice.
** Not yet admitted to the D.C. Bar, but
admitted to practice law in Florida. Practicing
law in D.C. pursuant to D.C. Court of
Appeals Rule 49(c)(8) under the supervision
of an attorney admitted to the D.C. Bar.
HEATHER GEBELIN HACKER
Texas Bar No. 24103325
ANDREW B. STEPHENS
Texas Bar No. 24079396
HACKER STEPHENS LLP
108 Wild Basin Road South, Suite 250
Austin, Texas 78746
Tel.: (512) 399-3022
heather@hackerstephens.com
andrew@hackerstephens.com
Attorneys for Plaintiffs
Case 4:21-cv-01236-O Document 198 Filed 09/02/22 Page 30 of 31 PageID 6789
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CERTIFICATE OF SERVICE
I hereby certify that on September 2, 2022, I electronically filed the foregoing document
through the Court’s ECF system and will serve a copy on each of the Defendants according to the
Federal Rules of Civil Procedure.
/s/ Danielle A. Runyan
DANIELLE A. RUNYAN
Case 4:21-cv-01236-O Document 198 Filed 09/02/22 Page 31 of 31 PageID 6790