Case 1:21-cv-00565-RP Document 409 Filed 05/29/24 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`1:21-CV-565-RP
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`ERIC CERVINI, et al.,
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`v.
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`ELIAZAR CISNEROS, et al.,
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`Plaintiffs,
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`Defendants.
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`ORDER
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`Before the Court is Defendant Dolores Park’s (“Park”) motion to compel discovery, or
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`motion for leave to allow discovery. (Dkt. 406). The United States filed a response in opposition.
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`(Dkt. 407). Having considered the parties’ briefs, the record, and the relevant law, the Court will
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`deny Park’s motion.
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`I. BACKGROUND
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`Discovery closed in this case on December 12, 2023. (Am. Scheduling Order, Dkt. 254).
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`Motions for summary judgment are pending before this Court. (See Dkts. 325, 326, 328). And trial is
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`set to begin on September 9, 2024. (Dkt. 405).
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`On February 20, 2024, Plaintiffs filed a motion for leave to amend their disclosures to add
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`three fact witnesses: Yaniv Schiff, Todd Price, and John Polizzi. (Mot. Leave, Dkt. 350). On March
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`22, 2024, the Court granted Plaintiff’s motion for leave to serve amended disclosures. (Order, Dkt.
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`378). To cure the minimal prejudice that Defendants would face by allowing the amended
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`disclosures, the Court also amended the scheduling order to allow the parties to seek discovery from
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`Schiff, Price, and Polizzi. (Id. at 7). The Court ordered that any discovery from these parties be
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`completed on or before May 20, 2024. (Id.).
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`Case 1:21-cv-00565-RP Document 409 Filed 05/29/24 Page 2 of 8
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`On April 5, 2024, the United States filed a notice of intervention in this case. (Dkt. 385). The
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`United States informed the Court that, pursuant to Federal Rules of Civil Procedure 5.1(c) and
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`24(a)(1) and 28 U.S.C. § 2403(a), it was intervening in this case for “the limited purpose of defending
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`the constitutionality of the ‘support or advocacy’ clause of 42 U.S.C. § 1985(3) and stating the views
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`of the United States on the proper interpretation of the statute.” (Not. Intervention, Dkt. 385, at 1).
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`Concurrent with the notice of intervention, the United States also filed a memorandum of law
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`regarding its position on the constitutionality and interpretation of § 1985(3). (Dkt. 386).
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`On April 17, 2024, Park served on the United States a Request for Interrogatories and a
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`Request for Production of Documents. (Mot. Compel, Dkt. 406, at 1). The discovery requests
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`include 7 interrogatories and 42 requests for production. (Park’s Req. for Interrogs., Dkt. 406-1;
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`Park’s Req. for Prod. of Documents, Dkt. 406-2). They are expansive in scope, ranging from
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`discovery requests about the incident at issue in this case to requests for documents and
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`communications between the United States and the following parties: the FBI, the Biden-Harris
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`Presidential Campaigns in 2020 and 2024, President Biden’s Presidential Inaugural Committee, and
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`various cities in Texas. (See id.). On April 25, 2024, the United States sent Park a letter stating that
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`the United States did not intend to respond to the discovery requests because discovery had closed
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`in this case and even if discovery were open, the United States’s limited intervention in the case did
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`not render it a party subject to discovery. (Id. at 2; see also Letter, Dkt. 406-3).
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`On May 20, 2024, Park filed the instant motion to compel discovery, or motion for leave to
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`allow discovery. (Dkt. 406). She argues that the United States’s responses to her discovery requests
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`were due as of May 20 under the Court’s March 22 order because that order re-opened discovery.
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`(Id. at 7). Park contends that the United States’s “limited intervention” in the case does not mean
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`that it is immune to discovery obligations, and therefore the Court should compel it to answer her
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`discovery requests. (See id. at 5–7). Alternatively, she argues that if the Court deems that discovery
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`Case 1:21-cv-00565-RP Document 409 Filed 05/29/24 Page 3 of 8
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`was closed, then there is good cause for the Court to modify the scheduling order to re-open
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`discovery as to the United States because it intervened after the close of discovery. (Id. at 7–9). The
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`United States filed a response in opposition, arguing that discovery was closed in this case and that it
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`is not subject to discovery in this action due to the limited nature of its intervention. (Resp., Dkt.
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`407).
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`II. LEGAL STANDARDS
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`The scope of discovery is broad. Crosby v. La. Health Serv. and Indem. Co., 647 F.3d 258, 262
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`(5th Cir. 2011). Federal Rule of Civil Procedure 26 provides that, unless otherwise limited by court
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`order, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
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`claim or defense and proportional to the needs of the case, considering the importance of the issues
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`at stake in the action, the amount in controversy, the parties’ relative access to relevant information,
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`the parties’ resources, the importance of the discovery in resolving the issues, and whether the
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`burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1).
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`“A discovery request is relevant when the request seeks admissible evidence or ‘is reasonably
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`calculated to lead to the discovery of admissible evidence.’” Crosby, 647 F.3d at 262 (quoting Wiwa v.
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`Royal Dutch Petrol. Co., 392 F.3d 812, 820 (5th Cir. 2004)). A party seeking discovery may file a
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`motion to compel after conferring in good faith to secure that discovery without court action. Fed.
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`R. Civ. P. 37(a). If the motion is filed and granted, the Court must order the resisting party to pay
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`the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. Fed. R.
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`Civ. P. 37(a)(5).
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`“Once a party moving to compel discovery establishes that the materials and information it
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`seeks are relevant or will lead to the discovery of admissible evidence, the burden rests upon the
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`party resisting discovery to substantiate its objections.” Hobbs v. Petroplex Pipe & Constr., Inc., No.
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`MO:17-CV-00030-DC, 2018 WL 3603074, at *2 (W.D. Tex. Jan. 29, 2018); see also McLeod, Alexander,
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`Case 1:21-cv-00565-RP Document 409 Filed 05/29/24 Page 4 of 8
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`Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). “A party objecting to discovery
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`must state with specificity the objection and how it relates to the particular request being opposed,
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`and not merely that it is overly broad and burdensome or oppressive or vexatious or not reasonably
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`calculated to lead to the discovery of admissible evidence.” Id.; see also Carr v. State Farm Mut. Auto.
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`Ins., 312 F.R.D. 459, 469 (N.D. Tex. 2015) (stating that the party resisting discovery has the burden
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`to “specifically object”) (citing McLeod, 894 F.2d at 1485).
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`Additionally, a scheduling order may be modified only for good cause and with the court’s
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`consent. Fed. R. Civ. P. 16(b)(4). There are four relevant factors to consider when determining
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`whether there is good cause under Rule 16(b)(4): “(1) the explanation for the failure to timely
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`comply with the scheduling order; (2) the importance of the modification; (3) potential prejudice in
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`allowing the modification; and (4) the availability of a continuance to cure such prejudice.” Betzel v.
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`State Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007).
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`III. DISCUSSION
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`The Court finds that Park’s motion to compel discovery should be denied for a few reasons.
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`First, discovery has been closed in this case since December 12, 2023. (Am. Scheduling Order, Dkt.
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`254). The Court’s March 22 order only re-opened discovery for the limited purpose of allowing the
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`parties to seek discovery from the three newly disclosed fact witnesses that were the subject of
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`Plaintiffs’ motion for leave to file amended disclosures. Park’s argument that the order re-opened
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`discovery for broader purposes ignores the clear language of the Court’s order.
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`Second, the Court does not find good cause to modify the scheduling order to allow Park to
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`seek discovery against the United States. Park has not adequately explained why the requested
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`discovery is relevant to her case and how she would be prejudiced if the Court did not allow her to
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`seek this discovery. In explaining the second factor of the good cause analysis—the importance of
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`the proposed modification—Park simply states, “Considering the broad scope of discovery allowed
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`Case 1:21-cv-00565-RP Document 409 Filed 05/29/24 Page 5 of 8
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`under the federal rules, it would be hard to conclude that none of Ms. Park’s discovery requests are
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`relevant or reasonably likely to lead to relevant evidence.” (Mot. Compel, Dkt. 406, at 9). As for the
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`third factor—potential prejudice—Park only explains that “Ms. Park would be greatly prejudiced by
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`not being allowed to pursue discovery from an intervening party.” (Id.). However, Park has the
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`burden to explain why her discovery requests are relevant, and nowhere in her motion does she
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`explain why her expansive discovery requests are relevant to her case.
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`Park’s silence on the relevance of her discovery requests is particularly important because
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`there is no indication that the United States would have evidence relevant to this case. The United
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`States has intervened solely to offer its views on the legal interpretation of § 1985(3). In its
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`memorandum of law, the United States explains that it “takes no position on the original parties’
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`factual disputes or whether the factual record in the case substantiates the plaintiffs’ claims.” (Mem.
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`of Law, Dkt. 386, at 3). The United States has also told Park’s counsel that it “did not collect or
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`review evidence, interview parties or witnesses, or otherwise conduct any factual investigation in
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`connection with its intervention in this case.” (Letter, Dkt. 406-3, at 2). Park argues that the United
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`States has taken a position on the facts in this case because its memorandum of law cites to
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`Plaintiffs’ amended complaint. (Mot. Compel, Dkt. 406, at 6). However, the memorandum of law
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`simply recounts what Plaintiffs have alleged in this case and what causes of action they have
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`brought. (See Mem. of Law, Dkt. 386, at 3). The memorandum specifically states that Defendants
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`dispute Plaintiffs’ account of the events. (Id.). The memorandum does not demonstrate that the
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`United States has an opinion on the factual allegations in this case, and the United States has
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`represented that it did not conduct a factual investigation when it decided to intervene in the case.
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`Accordingly, the Court finds that Park has not demonstrated the importance of her proposed
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`discovery requests and thus has not proven good cause for the modification of the scheduling order.
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`Last, the United States is not subject to discovery due to the limited nature of its status as an
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`intervening party. 28 U.S.C. § 2403(a) affords the United States an unconditional statutory right to
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`intervene “[i]n any action . . . wherein the constitutionality of any Act of Congress affecting the
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`public interest is drawn in question.” In such instances the statute mandates that the court:
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`. . . shall permit the United States to intervene for presentation of
`evidence, if evidence is otherwise admissible in the case, and for
`argument on the question of constitutionality. The United States shall,
`subject to the applicable provisions of law, have all the rights of a party
`and be subject to all liabilities of a party as to court costs to the extent
`necessary for a proper presentation of the facts and law relating to the
`question of constitutionality.
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`28 U.S.C. § 2403(a). This statute does not, however, transform the United States into a party for all
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`purposes and impose on the United States the same obligations as any other party in a case. In
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`interpreting the statute in cases where a state intervened to defend the constitutionality of a state
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`statute, the Supreme Court and the Fifth Circuit have found that states intervening under § 2403(b)
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`are not subject to liability on the same terms as other parties. See Tennessee v. Garner, 471 U.S. 1, 22
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`(1985); see also Nash v. Chandler, 848 F.2d 567, 573–74 (5th Cir. 1988) (finding that the state of Texas
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`was not subject to liability and thus could not be held liable for attorney’s fees due to its
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`intervention); Arizonans for Off. English v. Arizona, 520 U.S. 43, 70 n.25 (1997) (“[Section 2403(b)]
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`does not subject an intervenor to liability for damages available against a party defendant.”). By the
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`same logic, the Court finds that the United States’ intervention under § 2403(a) does not subject it to
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`the same discovery obligations that the Federal Rules of Civil Procedure impose on other parties.
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`Park’s attempts to argue otherwise lack merit. Park does not identify any case holding that
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`intervention under § 2403(a) makes the United States subject to discovery.1 Instead, Park cites the
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`1 Park cites La Union del Pueblo Entero v. Abbott, No. SA-21-CV-00844-XR, 2022 WL 17574079 (W.D. Tex.
`Dec. 9, 2022), and an opinion by Chief Justice Roberts concurring in the judgment in part and dissenting in
`part in South Carolina v. North Carolina, 558 U.S. 256 (2010), for the proposition that Rule 26 is an “applicable
`provision of law” under § 2403(a) that governs all parties in litigation, including intervenors. (Mot. Compel,
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`portion of § 2403(a) that provides that the United States “shall be subject to the applicable
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`provisions of law” for the proposition that the United States must adhere to the Federal Rules of
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`Civil Procedure that govern discovery. (Mot. Compel, Dkt. 406, at 5–6). However, looking to the
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`full statutory text, § 2403(a) specifies the rights and liabilities the United States will enjoy—“all the
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`rights of a party” and potential liability for costs. The phrase “subject to the applicable provisions of
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`law” does not alter those rights and liabilities; it only describes the manner in which they will be
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`afforded to the United States. In other words, the statute limits the liability of the United States as to
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`the issue of court costs but does not impose all the other obligations and liabilities that come along
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`with being a party in a case. Even the phrases “all the rights of a party” and “all liabilities of a party
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`as to court costs” are only imposed on the United States “to the extent necessary for a proper
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`presentation of the facts and law relating to the question of constitutionality.” In a case like this,
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`where the United States has only intervened as to the legal interpretation of a federal statute and has
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`taken no position as to the facts of the case, factual discovery would not be necessary to the United
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`States’s intervention or other parties’ responses to its intervention. Accordingly, the Court finds that
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`the statute does not support Park’s position that the United States is subject to the same discovery
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`obligations as other parties.
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`IV. CONCLUSION
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`The Court will not compel the United States to respond to Park’s discovery requests.
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`Discovery was closed when Park served her requests. And Park has not demonstrated good cause
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`for the Court to modify the scheduling order and re-open discovery at this late stage of the litigation,
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`especially given the limited nature of the United States’ intervention in this case.
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`Dkt. 406, at 3). However, neither of these cases involved intervention under § 2403. La Union involved
`intervention by private parties in a suit brought against state official defendants. See La Union del Pueblo Entero,
`2022 WL 17574079, at *1. And the Chief Justice’s opinion in South Carolina dealt with private parties seeking
`to intervene in a dispute between two States under the original jurisdiction of the Supreme Court. See South
`Carolina, 558 U.S. at 287–88 (opinion of Roberts, C.J.).
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`Case 1:21-cv-00565-RP Document 409 Filed 05/29/24 Page 8 of 8
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`For these reasons, Park’s motion to compel discovery, or motion for leave to allow
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`discovery, (Dkt. 406), is DENIED.
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`SIGNED on May 29, 2024.
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`________________________________
`ROBERT PITMAN
`UNITED STATES DISTRICT JUDGE
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