JAMES L. ROBART United States District Judge

ORDER GRANTING MOTION FOR STAY

I. INTRODUCTION

Before the court is Defendants' motion to stay these proceedings pending resolution of the appeal of the preliminary injunction in Hawaii v. Trump, No. CV 17-00050 (D. Haw.). (Mot. (Dkt. # 175)); see also Hawaii v. Trump, No. 17-15589 (9th Cir.). The court has considered Defendants' motion, Plaintiffs' opposition to the motion (Resp. (Dkt. # 180)), Defendants' reply (Reply (Dkt. # 184)), the relevant portions of the // // record, and the applicable law. Being fulling advised, the court GRANTS Defendants' motion.

II. BACKGROUND

This lawsuit arises out of President Donald J. Trump's recent issuance of two Executive Orders on immigration: Executive Order No. 13,769 ("EO1") and Executive Order No. 13,780 ("EO2"). This lawsuit began as a challenge to EO1. (See Compl. (Dkt. # 1).) On February 3, 2017, this court issued a nationwide temporary restraining order ("TRO") enjoining enforcement of sections 3(c), 5(a), 5(b), 5(c), and 5(e) of EO1. (TRO (Dkt. # 52).) On appeal, the Ninth Circuit construed this court's TRO as a preliminary injunction and declined to stay the preliminary injunction pending Defendants' appeal of the preliminary injunction in the Ninth Circuit. See Washington v. Trump, 847 F.3d 1151, 1158 (9th Cir. 2017). On March 6, 2017, President Trump issued EO2, which expressly revokes EO1. See EO2 ¶ 13. In addition, Defendants withdrew their appeal of this court's injunction with respect to EO1. (9th Cir. Order (Dkt. # 111) (granting unopposed motion for voluntary dismissal of appeal).)

Following the President's issuance of EO2, Plaintiffs filed a second amended complaint incorporating new allegations and claims with respect to EO2. (SAC (Dkt. # 152).) On March 15, 2017, Plaintiffs filed a motion seeking a TRO against enforcement of Sections 2(c) and 6(a) of EO2. (TRO Mot. (Dkt. # 148).) Later that same day, in a separate suit, the federal district court in Hawaii enjoined the enforcement of Sections 2 and 6 of EO2. See Hawaii v. Trump, No. CV 17-00050 (D. Haw.), Dkt. ## 219-20. On March 17, 2017, the court entered a stay of Plaintiffs' motion for a TRO in part because the federal district court in Hawaii entered a nationwide injunction that provided Plaintiffs with the relief they sought. (3/17/17 Order (Dkt. # 164) at 8-9.) The court also noted that "the Ninth Circuit's rulings on EO2 in Hawaii v. Trump will likely have significant relevance to—and potentially control—the court's subsequent ruling here." (Id. at 10.) Accordingly, the court concluded that "granting the stay of Plaintiffs' TRO motion while the nationwide injunction remains in place . . . pending the outcome of appellate proceedings in [the Hawaii] case would facilitate the orderly course of justice." (Id.)

Defendants now seek a stay not just of Plaintiffs' motion for a TRO, but of the entire case pending resolution of the appeal in Hawaii v. Trump. (See Mot.) Plaintiffs oppose a stay. (See Resp.) The court now considers Defendants' motion.

III. ANALYSIS

The court "has broad discretion to stay proceedings as an incident to its power to control its own docket." Clinton v. Jones, 520 U.S. 681, 706 (1997); see also Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). This power applies "especially in cases of extraordinary public moment" when "a plaintiff may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted." Clinton, 520 U.S. at 707. In determining whether to grant a motion to stay, "the competing interests which will be affected by the granting or refusal to grant a stay must be weighed." Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). Those interests include: (1) "the possible damage which may result from the granting of a stay," (2) "the hardship or inequity which a party may suffer in being required to go forward," and (3) "the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay." Id. Here, the court finds that these factors weigh in favor of granting Defendants' motion pending resolution of the appeal of the preliminary injunction in Hawaii v. Trump.

A. The Orderly Course of Justice

The court begins with the last factor—the orderly course of justice and judicial economy. District courts often stay proceedings where resolution of an appeal in another matter is likely to provide guidance to the court in deciding issues before it. See Landis, 299 U.S. at 254. Where a stay is considered pending the resolution of another action, the court need not find that the two cases involve identical issues; a finding that the issues are substantially similar is sufficient to support a stay. See Landis, 299 U.S. at 254; see also Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979) (stating that the court's authority to stay one proceeding pending the outcome in another "does not require that the issues in such proceedings are necessarily controlling of the action before the court"). Here, the appeal in Hawaii v. Trump involves many issues that overlap with the present litigation. Indeed, both cases involve challenges to sections 2 and 6 of EO2. (See SAC ¶¶ 196, 203, 209, 218, 224, 235, 240); Hawaii v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *17 (D. Haw. Mar. 15, 2017) (issuing nationwide TRO regarding sections 2 and 6 of EO2).

Defendants argue that waiting for the Ninth Circuit's decision in the Hawaii case will likely provide guidance to the court in resolving discovery disputes relevant to Plaintiffs' claims. (Mot. at 6-8.) First, Defendants argue that Plaintiffs are seeking internal government records that Defendants believe are irrelevant because under Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), Defendants need only demonstrate a "facially legitimate and bona fide reason" for the Executive's exclusion of aliens. (Mot. at 6.) Plaintiffs contend that "the Ninth Circuit has already resolved . . . against Defendants" the issue of whether internal government documents are relevant to Plaintiffs' claims when it rejected application of the Mandel standard in Washington, 847 F.3d at 1162. (Resp. at 7-8.) However, in the Hawaii appeal, Defendants argue that the federal district court in Hawaii misread [the Ninth Circuit's] stay ruling in Washington. (See Mot. at 1 (citing appellants' brief).) Plaintiffs obviously disagree with this position, but the salient point for purposes of Defendants' stay motion is that resolution of the Hawaii appeal is likely to provide guidance to this court on that issue and by extension on the appropriate scope of discovery.

Further, even if the Ninth Circuit were to determine in Hawaii that Mandel does not provide the applicable standard and that courts may look beyond the four corners of EO2, the Ninth Circuit's decision is likely to provide guidance on the scope of that review. Although the Ninth Circuit is not considering discovery issues on appeal, it is likely to decide legal issues that will impact the court's resolution of the parties' discovery disputes here by clarifying "the applicable law or relevant landscape of facts that need to be developed." See Washington v. Trump, No. C17-0141JLR, 2017 WL 1050354, at *5 (W.D. Wash. Mar. 17, 2017) (quoting Hawaii v. Trump, No. CV 17-00050 DKW-KJM, 2017 WL 536826, at *5 (D. Haw. Feb. 9, 2017)).

In addition, Defendants are likely to move for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Mot. at 8.) Defendants are likely to raise the same arguments that they would have raised in opposition to Plaintiffs' TRO motion had the court not stayed consideration of that motion. (Id.) For the same reasons that the court determined that the Ninth Circuit's decision in Hawaii would be helpful in resolving Plaintiffs' TRO motion, see Washington, 2017 WL 1050354, at *6, the Ninth Circuit's decision will also likely help the court in resolving Defendants' motion to dismiss.

Plaintiffs argue that the issues in the two cases are not perfectly matched and that the Ninth Circuit's resolution of the appeal in Hawaii will leave various issues unresolved before this court. (See Resp. at 8-10.) Resolution of the Hawaii appeal, however, need not "settle every question of . . . law" to justify a stay. Landis, 299 U.S. at 256. It is sufficient that the Hawaii appeal will likely "settle many" issues and "simplify" others, id., such that a stay will facilitate the orderly course of justice and conserve resources for both the court and the parties. See Fairview Hosp. v. Leavitt, No. 05-1065RWR, 2007 WL 1521233, at *3 n.7 (D.D.C. May 22, 2007) (granting a stay pending the resolution of another matter that would likely settle or simplify issues even though resolution of the other matter "would not foreclose the necessity of litigation in [the stayed] case"); In re Literary Works in Elec. Databases Copyright Litig., No. 00 CIV 6049, 2001 WL 204212, at *3 (S.D.N.Y. Mar. 1, 2001) (same). Accordingly, the court finds that this factor weighs in favor of granting Defendants' motion for a stay.

B. Possible Harm to Plaintiffs if a Stay is Imposed

Plaintiffs assert that there is a significant possibility that a stay will harm their ability to obtain complete and accurate discovery. (Resp. at 3-6.) In particular, Plaintiffs raise the specter that third parties may be free to destroy evidence during the stay. (Id. at 4-5.) They also assert that Defendants have disclaimed any obligation to locate or preserve evidence that predates President Trump's inauguration on January 20, 2017. (Id.)

The court first addresses Defendants' obligation to preserve evidence. Defendants acknowledge that they "are aware of their obligation to preserve information in their possession, custody, or control that may be relevant to the claims and defenses in this case." (JSR (Dkt. # 177) at 9 (italics added).) To date, the court has not ruled that evidence that predates January 20, 2017, is irrelevant to this case. Indeed, Plaintiffs' second amended complaint expressly raises factual allegations concerning pre-inauguration events. (See, e.g., SAC (Dkt. # 152) ¶ 141 ("Prior to his election, Donald Trump campaigned on the promise that he would ban Muslims from entering the United States.").) Indeed, the relevancy of this time period is one of the issues that Defendants assert the Hawaii appeal may resolve and that supports imposing a stay. (See Mot. at 7 ("[T]he Ninth Circuit's decision is likely to provide assistance in resolving disputes about the appropriate time frame for any discovery.").) Thus, until that issue is resolved, the court expects all parties to abide by their obligation to preserve information in their possession, custody, or control that may be relevant to Plaintiffs' claims and Defendants' defenses—including evidence that predates January 20, 2017. The entry of a stay in these proceedings does not obviate either parties' obligation to ensure the preservation such evidence, and the court expects all parties to fulfill their obligations in this regard. See supra n.3.

Plaintiffs also raise legitimate concerns about their need to obtain information and preserve evidence from third parties. (See Resp. at 5.) To alleviate this potential harm, Defendants suggest that Plaintiffs send preservation letters to the third parties at issue "to notify them of the litigation and request that they preserve any potentially relevant evidence." (Reply at 5.) If Plaintiffs do not believe that sending such letters will resolve the issue of third-party evidentiary preservation, the court permits Plaintiffs to seek a limited modification of the stay order to allow Plaintiffs to issue subpoenas to the third parties. The issuance of subpoenas to third parties would provide the force of a court order with respect to the preservation of this evidence and should assuage Plaintiffs' fears that potentially relevant evidence might be destroyed. The court would then stay any required production under or response to the subpoenas until such time as the stay is lifted, which will prevent Defendants from becoming embroiled in potentially complex privilege and relevancy issues without the benefit of the Ninth Circuit's ruling in the Hawaii case. (See Reply at 6.)

Plaintiffs are also concerned about the potential length of a stay. The court is sensitive to this concern, but notes that the Ninth Circuit ordered expedited briefing in the Hawaii appeal and conducted oral argument on May 15, 2017. See Hawaii v. Trump, No. 17-15589 (9th Cir.), Dkt. ## 14, 18. Plaintiffs also raise the concern that the stay may continue through an appeal to the United States Supreme Court. (Resp. at 6-7.) Although that may be true, the court also recognizes that litigation is inherently uncertain and this litigation or the Hawaii litigation could end prior to reaching the United States Supreme Court. Further, the court will require the parties to submit a joint status report within ten days of the Ninth Circuit's ruling in the Hawaii appeal so that the court can reassess the continued appropriateness of the stay at that time. Due to the short duration of the stay Defendants seek and the safeguards that the court has implemented to mitigate any harm to Plaintiffs—particularly with regard to the preservation of evidence—the court finds that the potential harm to Plaintiffs is insufficient to warrant denying Defendants' motion.

C. Possible Hardship or Inequity to Defendants if a Stay is Not Imposed

Defendants assert that, in the absence of a stay pending further guidance from the Ninth Circuit, they will endure hardship due to "[t]he sheer volume of discovery" that Plaintiffs anticipate serving on "the highest levels of government." (Mot. at 9, 10.) In addition to written discovery and document requests, Plaintiffs anticipate up to 30 depositions of government officials, including White House staff and Cabinet-level officers. (Id. at 10; see also Resp. at 11; Reply at 5 n.3 (stating that Plaintiffs indicated in their initial disclosures that they believe the following officials have discoverable information: President Donald Trump, Secretary of Homeland Security John Kelly, Secretary of State Rex Tillerson, Attorney General Jefferson Sessions, former National Security Advisor Michael Flynn, White House Counsel Donald McGahn, Presidential Advisors Stephen Miller and Stephen Bannon, and White House Press Secretary Sean Spicer); JSR at 8, 9 (stating that Plaintiffs propose that the parties be permitted to take up to thirty (30) depositions per side).) Plaintiffs respond that "being required to defend a suit, without more, does not constitute a 'clear case of hardship or inequity.'" (Resp. at 11 (quoting Lockyer, 398 F.3d at 1112 and Landis, 299 U.S. at 255).)

However, neither this lawsuit, nor the discovery Plaintiffs seek is typical. The Supreme Court has declared that "the high respect that is owed to the office of the Chief Executive . . . is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery, . . . and the Executive's constitutional responsibilities and status are factors counseling judicial deference and restraint in the conduct of litigation against it." Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 385 (2004) (alterations and internal citations omitted). Plaintiffs' anticipated discovery will likely lead to multiple discovery disputes. (See JSR at 5-7 (relevance objections), 7-8 (privilege issues), and 11-12 (objections to taking depositions of high-ranking and White House officials).) In the context of this case, the "high respect" owed to the Executive warrants a stay to protect Defendants from the burden of resource intensive discovery while the Ninth Circuit addresses issues that may inform the appropriateness, scope, and necessity of that discovery. See id.; see also Clinton, 520 U.S. at 707 (stating that the power to stay proceedings applies "especially in cases of extraordinary public moment"). Thus, the court concludes that this factor weighs heavily in favor of granting Defendants' motion for a stay pending the outcome of the appeal in Hawaii v. Trump.

D. Summary of the Factors

The court concludes that the relevant factors weighs in favor of staying these proceedings pending the resolution of the appeal in Hawaii v. Trump. Awaiting the Ninth Circuit's opinion in that case will promote the orderly course of justice and judicial economy. In addition, Defendants have demonstrated they face hardship or inequity in the absence of a stay in light of Plaintiffs' anticipated sweeping discovery and the unique nature of this case involving the Chief Executive. See Cheney, 542 U.S. at 385; Clinton, 520 U.S. at 707. To the extent that Plaintiffs fear that a stay will harm their ability to preserve evidence, the court has implemented measures described above to mitigate any such possible effects. See supra § III.B. In addition, the Ninth Circuit has placed the appeal on a fast track and oral argument has already occurred, so the stay will likely be of short duration. Finally, the court orders the parties to file a joint status report within ten days of the Ninth Circuit's ruling so that the court may evaluate the continued appropriateness of any stay at that time.

IV. CONCLUSION

Based on the foregoing analysis, the court GRANTS Defendants' motion (Dkt. # 175) for a stay in these proceedings pending the Ninth Circuit's resolution of the appeal in Hawaii v. Trump. Should circumstances change such that lifting the stay is warranted, any party may move to lift the stay.

Dated this 17th day of May, 2017.

/s/_________

JAMES L. ROBART

United States District Judge