GOP AGs Oppose DOJ's Motion to Strike Social Media Case 'Fact Memo'

The court should deny DOJ’s motion to strike and reject its request for “an extraordinary 65-day extension” intended to delay “the inevitable reckoning for the federal government’s indefensible misconduct,” said the attorneys general for Louisiana and Missouri in a memorandum (docket 3:22-cv-01213) in U.S District Court for Louisiana in Monroe, opposing DOJ’s motion to strike their proposed findings of fact in a First Amendment social media case.

DOJ moved Thursday to strike the March 7 supplemental fact memorandum by Louisiana's Jeff Landry (R) and Missouri's Andrew Bailey (R) in support of their motion for a preliminary injunction (PI) to block what they allege is the Biden administration’s collusion with Big Tech to censor right-leaning social media content in violation of the First Amendment (see Ref:2303100002]).

The AGs’ roughly 350-page supplemental “fact memo,” which the plaintiffs “styled as ‘proposed findings of fact,’” is permitted “by neither the applicable rules” nor the court’s orders, said DOJ’s motion to strike or impose alternative relief. Amid the tight April 5 “impending deadline” to respond, DOJ asked the court to resolve its motion by March 15, “or as soon thereafter as practicable.”

The AGs’ Monday memorandum noted district courts often direct parties to submit such proposed findings of fact “obviating the need for the Court to sift through voluminous evidence in the first instance.” If the court finds the proposed findings unhelpful, “the ordinary remedy is for the Court to simply disregard them,” it said, saying there’s “no basis” to strike their proposed findings of fact.

The DOJ seeks an “extraordinary extension of time” to respond to the proposed findings of fact, said the AGs. The “wrongdoing” was “Government-wide, not an isolated incident, and so the facts are substantial,” they said. The court should reject DOJ’s request to require the plaintiffs to truncate their proposed findings, “and thus reduce the evidence relied upon.”

The AGs received 20,573 pages of discovery from the DOJ, including “significant supplemental productions very late in the discovery process,” they said. Plaintiffs adopted a two-phase approach to presenting evidence to the parties and court in the most “easily digestible manner: 1) the proposed findings of fact to help the court in discovery and 2) a supplemental brief in support of preliminary injunction to provide a summary and overview of evidence against each federal agency.

The DOJ argued in its motion to strike that the proposed findings of fact aren't authorized by the rules and require special court permission, plaintiffs said. That argument has no support in the text of the rules and “contradicts common practice” in preliminary-injunction cases involving large volumes of evidence and disputed facts,” the AGs said. The court should also reject the DOJ’s request that the court order the AGs to truncate their proposed findings “radically” or grant the defendants an “extraordinary extension” of time to respond.

As an alternative to rejecting the proposed findings of fact, DOJ said the AGs should truncate the findings to one-ninth of their length or extend its time to respond to 65 days, said the memorandum. The court should reject the requests because defendants’ “wrongdoing is extensive” and they're represented by the “most heavily resourced law firm in the world,” the DOJ, said the AGs. The defendants “should not be allowed to shield themselves [from] their own wrongdoing by complaining that they engaged in so much wrongdoing that it is ‘burdensome’ for their attorneys to address the evidence against them.”