State v. U.S. Dep't of Commerce, 339 F. Supp. 3d 144

Plaintiffs challenged Secretary Ross's reinstatement of a citizenship question on the 2020 Census under the APA and the Fifth Amendment; court authorized discovery beyond the administrative record after finding a strong preliminary showing of likely bad faith.
Parties conducted substantial discovery after the July 3, 2018 order; Plaintiffs seek to depose Acting AAG John Gore, alleged to have "ghostwritten" the DOJ letter requesting the citizenship question.
The court granted Plaintiffs' request to depose AAG Gore on August 17, 2018; the deposition was scheduled for September 12, 2018.
Defendants filed a last-minute motion (Aug. 31, 2018) to stay all discovery or at least Gore’s deposition pending a mandamus petition to the Second Circuit, citing burden and asserted errors in the court’s discovery rulings.
The district court reviewed the four-factor stay test (likelihood of success, irreparable harm, injury to other parties, public interest) and mandamus standards, and denied defendants’ requests in full.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Stay of all discovery pending mandamus	Discovery should proceed to develop extra-record evidence of bad faith	Stay needed to avoid burdensome discovery and preserve appellate review via mandamus	Denied; delay by defendants and lack of irreparable harm; strong public interest and plaintiffs’ prima facie showing of bad faith
Stay of AAG Gore deposition	Gore likely has unique, first-hand, non-duplicable information about DOJ role in prompting the question	Deposing a high-ranking official is highly disfavored and unduly burdensome; court erred	Denied; Gore appears to have unique, relevant information and less burdensome alternatives are insufficient
Standard for extra-record discovery	Court may permit extra-record discovery upon strong showing of bad faith or improper behavior	Court applied wrong standard, overemphasized timing between DOJ letter and Ross decision	Court correctly applied Nat’l Audubon standard and relied on multiple indicia of possible bad faith beyond timing alone
Mandamus likelihood / waiver arguments	Mandamus is unlikely because defendants delayed and failed to show extraordinary circumstances	Mandamus warranted because discovery rulings are erroneous and compel testimony of a DOJ official	Denied: defendants failed to show clear and indisputable right to writ, delayed seeking relief, and invoked arguments not raised below (formal waiver)

U.S. S.E.C. v. Citigroup Glob. Mkts. Inc., 673 F.3d 158 (2d Cir.) (stay factors for discovery pending appeal)
Hilton v. Braunskill, 481 U.S. 770 (Supreme Court) (four-factor stay test)
In re Revel AC, Inc., 802 F.3d 558 (3d Cir.) (stay movant must show likelihood of success and irreparable harm)
Nken v. Holder, 556 U.S. 418 (Supreme Court) (standard for stays pending appeal)
Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir.) (irreparable harm central to preliminary relief)
Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7 (2d Cir.) (allowing extra-record discovery on strong showing of bad faith)
Tummino v. von Eschenbach, 427 F. Supp. 2d 212 (E.D.N.Y.) (extra-record discovery where decision preceded seeking rationales and staff overruled)
Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (Supreme Court) (mandamus is extraordinary relief; clear and indisputable right required)
In re City of New York, 607 F.3d 923 (2d Cir.) (reluctance to overturn discovery rulings by mandamus)
Lederman v. New York City Dep’t of Parks & Recreation, 731 F.3d 199 (2d Cir.) (test for compelling testimony of high-ranking officials)
Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (Supreme Court) (litigation expense alone does not constitute irreparable injury)
Franklin v. Massachusetts, 505 U.S. 788 (Supreme Court) (census importance and public interest in transparent process)