MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE
Plaintiffs
are members of a provisionally certified class of
asylum-seekers detained by Immigration and Customs
Enforcement at one of its five Field Offices. ICE's
detention policy is governed in part by its 2009
“Parole Directive, ” which establishes how the
agency determines whether an individual who has been deemed
to have a “credible fear of persecution” - the
first step in gaining asylum status - will be released on
parole pending a full hearing. In bringing suit,
Plaintiffs' principal contention, based on plummeting
parole rates and testimony from detained asylum-seekers and
their counsel, is that this Administration is no longer
following its own Directive but is instead engaging in
systematic detention. Finding that Plaintiffs had established
a reasonable likelihood of success on that claim, the Court
last July granted a preliminary injunction requiring that
Defendants comply with the Directive. See Damus v.
Nielsen, 313 F.Supp.3d 317 (D.D.C. July 2, 2018). Citing
additional testimony from practitioners and parole statistics
since the injunction issued, Plaintiffs believe that the five
Field Offices are not following that injunction. They thus
now move for discovery regarding the agency's compliance.
As Plaintiffs have raised a sufficient question of
noncompliance, the Court will grant their Motion and permit
limited discovery to see if they can support their theory.
I.
Background
The
background on the relevant statutory scheme, the Parole
Directive, and Plaintiffs' detention is laid out in this
Court's prior Opinion. Id. at 323-25. In brief,
non-citizens applying for asylum may be paroled “into
the United States temporarily” at the Attorney
General's discretion. See 8 U.S.C. §
1182(d)(5)(A). Agency regulations provide that the Secretary
of Homeland Security, under whom ICE operates, “may
invoke” parole authority for individuals who are
“neither a security risk nor a risk of
absconding” and who meet one or more of a series of
conditions - as relevant here, “for urgent humanitarian
reasons or significant public benefit.” See
Damus, 313 F.Supp.3d at 324 (quoting 8 U.S.C. §
1182(d)(5)(A); 8 C.F.R. § 212.5(b)). The Directive
interprets “public benefit” and sets out
procedural requirements for assessing whether individual
applicants should be released. It provides that, if an
asylum-seeker has established her identity and that she is
neither a flight risk nor a risk to the public, detention is
not in the public interest and parole should be granted
between the initial credible-fear determination and the full
hearing. Id.; see ICE Directive No. 11002.1
(Dec. 8, 2009) (Parole Directive). The Directive also
requires that ICE make an individualized determination,
provide a written notice of the parole process in a language
the asylum-seeker understands, grant a parole interview
within seven days, and provide a “brief
explanation” of its decision. See Damus, 313
F.Supp.3d at 324 (citation omitted).
Plaintiffs'
principal allegation that ICE is no longer following the
Directive relied in large part on statistics: under the Obama
Administration, parole was granted to more than 90% of
asylum-seekers at the five Field Offices at which class
members are held; at the time Plaintiffs filed suit, ICE was
denying over 90% of requests at those locations.
Id. at 339. Plaintiffs also submitted “a
number of declarations from asylum-seekers and their
advocates[, ] . . . all of whom assert[ed] various violations
of the . . . Directive.” Id. at 340. Based on
that evidence, this Court concluded that Plaintiffs were
likely to succeed on the merits of their claim and satisfied
the other prerequisites for a preliminary injunction.
Id. at 339-43. It accordingly issued an Order
requiring, inter alia, that “Defendants . . .
[not] deny[] parole to any provisional class members absent
an individualized determination[;] . . . [that] [t]he
individualized determinations of flight risk and danger to
the community referenced above . . . be based on the specific
facts of each provisional class member's case”; and
that Defendants comply with the procedural requirements of
the Directive. See ECF No. 33 (PI Order),
¶¶ 3-5.
The
Government, as also ordered, provided a report on parole
determinations from when the preliminary injunction issued on
July 2, 2018 until August 17. See ECF No. 40 (ICE
Data) at 1-2. In the five Field Offices at issue, ICE granted
approximately 19%, 27%, 17%, 42%, and 18% of requests during
that period. Id. Plaintiffs have now filed a Motion
for Limited Discovery Regarding Compliance with the
Preliminary Injunction, contending that these statistics and
affidavits they have collected raise a significant question
about ICE's compliance with the preliminary injunction.
See ECF No. 41 (Plaintiff's Motion) at 1-2.
II.
Analysis
The
Court must first determine whether this situation is one in
which discovery is available at all. Concluding that it is,
the Court will then move on to address the scope of discovery
and whether Defendants should, as they contend, receive
reciprocal discovery.
A.
Availability of Discovery
1.
Standard
Plaintiffs
urge that the Court has authority to grant limited discovery
where significant questions have been raised about
noncompliance with a preliminary injunction. See Pl.
Mot. at 9. Defendants protest that the appropriate standard
for Plaintiffs' request for discovery is not whether
there are significant compliance questions, but whether the
discovery request is warranted under a multi-factor test.
See ECF No. 45 (Defendants' Opposition) at 11.
They also posit that discovery is simply inappropriate before
a Rule 26(f) conference has taken place - and especially so
here, since preliminary injunctions are intended to preserve
the status quo, rather than “to force one party to
‘radically transform the status quo, on an expedited
basis.'” Id. (quoting Disability
Rights Council v. WMATA, 234 F.R.D. 4, 7 (D.D.C. 2006)).
Plaintiffs
have the better of this dispute. The Court has the relevant
authority “as part of its inherent power to enforce its
judgments, ” and it is clear that “appropriate
discovery should be granted” where “significant
questions regarding noncompliance [with a court order] have
been raised.” Cal. Dep't of Social Servs. v.
Leavitt, 523 F.3d 1025, 1033-34 (9th Cir. 2008); see
Palmer v. Rice, 231 F.R.D. 21, 25 (D.D.C. 2005)
(allowing discovery where, “without [it], plaintiffs
will not be able to determine whether the government has
complied with the court's injunctions”);
Blackberry Ltd. v. Typo Prods. LLC, 2014 WL 4136586,
at *5 (N.D. Cal. Aug. 21, 2014) (granting discovery where
Plaintiff had raised “serious questions . . . regarding
[Defendant's] possible violations of the preliminary
injunction”). The Court retains this discretion where
compliance questions have been raised before the Rule 26(f)
conference. See MACOM Tech. Sols. Holdings, Inc. v.
Infineon Tech. AG, 2017 WL 1371247, at *2 (C.D. Cal.
Mar. 17, 2017). This is particularly so where the discovery
sought goes to compliance, as opposed to the merits, the
typical subject of the Rule 26(f) conference.
The
Court has little trouble, furthermore, rejecting the
contention that it should apply the alternative standard
urged by Defendants - that is, whether a multi-factor test
renders discovery reasonable. None of the cases on which
Defendants rely addresses the propriety of discovery to
assess compliance with a court order; rather, they deal
generally with the considerations courts should weigh in
determining whether expedited discovery is appropriate before
any court order has issued. See Def. Opp. at 11
(citing Guttenberg v. Emery, 26 F.Supp.3d 88, 97
(D.D.C. 2014); Attkisson v. Holder, 113 F.Supp.3d
156, 161-62 (D.D.C. 2015); Landwehr v. FDIC, 282
F.R.D. 1, 3 (D.D.C. 2010)). The Court is likewise not
persuaded that the approach Plaintiffs request risks
“forc[ing] ...