Judge Says Discovery Into DOGE's Labor Department Probe Likely
by Marc Elias and Paige Moskowitz
Democracy Docket
Feb 19, 2025
A federal judge in Washington, D.C. said he will likely grant federal labor unions' motion for expedited discovery into the extent and types of access the so-called Department of Government Efficiency and Elon Musk have had to Department of Labor records. If granted, it would be the first instance of discovery being permitted in the Trump accountability cases and could give invaluable information into DOGE's activities. Marc Elias and Paige Moskowitz explain.
Transcript
A federal district court judge in
Washington DC has just issued an order
clearing the way for the first round of
Discovery to go out in a case against
Donald Trump and Elon musk's Doge
welcome back to democracy docket I'm
Mark Elias and I'm PA mosquit let's get
started all right Paige I am still gonna
refer to it as Elon musk's Doge although
I understand that now apparently Mr musk
has nothing to do with Doge that's the
subject of another video that you and I
have done uh but but at any event we got
this very very important order just you
know shortly a few minutes ago uh in
which for the first time a federal judge
is going to allow discovery that is
going to allow the plaintiffs in a
lawsuit to issue questions uh uh get
documents maybe even allow depositions
which are sworn uh interviews under oath
um uh you know in a case that involves
Doge and and uh Donald Trump's uh
efforts to re remaster the government
right Mark this comes in a lawsuit filed
by democracy forward on behalf of
various federal employees unions they're
claiming that doge is seeking access to
sensitive Department of Labor data
including uh information about medical
and other benefits of all federal
workers information about workers
compensation claims identities of
vulnerable workers who sought the help
of the Department of Labor For
Occupational saf safety or wage
complaints they also claim that doge is
seeking access to information regarding
investigations of Mr mus corporate
interests and the sensitive trade secret
information held by the department
including those of the competitors of
those corporate interests yeah and you
know it's interesting you mention uh uh
the fact that one of the things they're
looking at is whether uh private
information was accessed because that is
something that the court singled out in
this order the judge said plaintiffs
have thus far asserted theories of
standing likelihood of success on the
merits and IR reparable harm that turn
on whether individuals not permitted
under the Privacy Act to view personal
information are viewing or will view
that information exploring that subject
through expedited targeted and limited
Discovery thus should be beneficial I
mean that is to lawyers a very big deal
for non- lawyers what it means is that
this judge wants to know and wants to
let the plainist find out whether or not
people who are not authorized to access
private information did in fact access
private information and so Paige you can
see already the wheel spinning of where
that could lead Mark and this is a
proposed order for limited Discovery
right so what does the process look like
to actually get a discovery order yeah
so what the judge did here was didn't
actually rule on the specific Discovery
the judge basically granted or indicated
uh that he supported the position the
plaintiffs had asserted in a prior
pleading that Discovery was appropriate
you see normally Discovery is not used
in administrative law cases like this
why because you what you're really
normally asking is just a pure question
of law did the thing that the government
do did it comply with the law or it
didn't and like there's not usually a
dispute about what the government did
the dispute is whether or not the thing
they did whether it was legal or not he
here as the judge points out in his
order it's a little bit different
because there's actually a set of
factual questions right there is the
question of whether or not the people
could legally access the data that would
be like a typical kind of question but
there's a subsidiary question or a
question that comes before that which is
who are the people who access the data
you know and like are they were you know
were they even allowed to were they even
in the Ambit of government employees
allowed to access the data so so this is
an unusual case so the judge said you
know the plaintiff you have to come back
uh you know later today uh by the end of
uh the day uh with your proposed limited
discovery which is reasonable because
after all the plaintiffs are presumably
ready to go they're the ones who want to
expedited Discovery and then gives you
know the government uh until uh February
24th which again is a very compressed
time frame like in most cases these
things would be much much longer but
gives them uh you know five days
essentially to oppose or respond uh and
then I expect we'll get a court order
you know we'll get a court order that
that says this is the Discovery that's
allowed these are the people you can
depose these are the kinds of questions
you can ask these are things you can't
ask these are the kind of documents
you're entitled to these are the
documents you're not entitled to
whatever it is like wherever the court
draws a line and then we will see that
Discovery I suspect take place very very
fast again this may not feel to those of
you out there like things are moving at
Rocket speed for courts this is rocket
speed Mark the next question that comes
naturally is if there's an order for
Discovery how do you ensure that the
government complies with and that the
plaintiffs get the information that they
are entitled to all right so Paige now
you've asked like the big question right
isn't this I mean isn't this the big
question sort of hanging over all these
cases and you're right in the case of
Discovery it is actually uh much Starker
right because the government has to
comply by actually turning over the
information they actually have to
produce the witness to sit at a
deposition and you know there are
several possib ities here number one the
government could simply seek to delay by
saying we're going to appeal the
discovery order right and just try to
make this like a side piece of
litigation about whether the Discover is
uh even appropriate the second we could
see something like what we have seen in
some of the other cases where they say
oh when you asked for the log of who had
accessed the computer system we thought
you meant the log for who had entered
the building we didn't realize Iz that
what you really wanted was about the
computer system right we can see this
kind of game of cat and mouse and
misdirection that we've seen from a lot
in a lot of these cases but the thing is
that won't get them very far in a
discovery case because the judge you
know is already teed up that he wants
expedited Discovery so I think that will
that would get slapped down which brings
us to the third possibility page and
this is where we start to inch closer
and closer to a true constitutional
crisis right I've said before I don't
think this is we are in a constitutional
crisis we are not in the place where um
the where the Court's orders are being
intentionally violated well one of the
easiest places to trip that wire one of
the the most common places frankly where
sanctions are imposed in litigation even
in you know normal civil litigation
between you know corporations uh one of
the most common places where contempt is
issued again in civil litigation not
having to do with the you know Donald
Trump's Administration are in these
Discovery cases where a party just says
I'm not going to produce the document or
they delete the document or a witness
goes to a deposition and says I'm not
going to answer questions that they were
ordered to answer and so what is the
chance page what is the chance that
Donald Trump either
instructs the Departments not to comply
or the Departments take it on themselves
or the Department of Justice lawyers
refuse to certify that you know what's
been produced is complete whatever it is
like what is the chance that this winds
up being a trip wire not
insignificant Mark and let's say that
the order goes through Discovery happens
the government turns over everything
that they're supposed to what kind of
information could we be looking at how
insightful or clarifying could it be to
get these sorts of Records into the
scope of what doge is doing and maybe
more importantly who is a part of
Doge right and I think that you put your
finger on it again as usual page your
you're smarter than the rest of us right
the this case though it is about Doge in
this one agency right Doge in the
Department of Labor accessing
confidential information it doesn't sit
though in a vacuum because other courts
in other forums have been told things by
Department of Justice lawyers and they
all need to Jive between courtrooms
right like I mean the Jud the the
Department of Justice can't tell one
judge oh Elon Musk has nothing to do
with Doge and then in this courtroom it
turn out like Elon Musk is running Doge
on the internal documents I'm not saying
that's what it is but like like you're
going to start to see as these cases
progress through Discovery there's gonna
have you know whether or not there is in
fact a consistent paper trail a
consistent understanding by Witnesses a
consistent set of arguments that
department of justice lawyers are making
and Discovery is you know one of those
strands that is hard for the
administration to to get around you know
it's one thing to send the Department of
Justice lawyer in to say something like
Elon Musk you know has nothing to do
with Doge right like we can all be like
huh right but it's another thing once
you start producing the internal emails
of people who say well we have to answer
to Elon Musk because he has Doge or you
know whatever it is you know they've
refused I believe Paige you tell me I
think they've refused uh in another case
to actually identify who the if it's not
Elm who it is that runs Doge um you know
like this is the kind of thing where you
might actually come across a do that
says this is who runs those so it's
going to be very interesting to see how
the administration how the Department of
Justice tries to square all these cases
up right the White House made that claim
earlier this week in a lawsuit from 14
Democratic State Attorneys generals who
claim that doge is illegally organized
and musk is a un is an
unconstitutionally appointed principal
officer of the United States they're
seeking to nullify and block all actions
that Doge and musk have taken but
earlier this week Joshua fiser the
director of the White House's office of
administration wrote in a court filing
that Elon Musk is not a part of Doge he
is not the administrator of Doge he is a
special employee of the White House and
has nothing to do with Doge right so do
you think that's going to square up in
the discovery in the Department of Labor
maybe maybe maybe maybe or maybe there a
record showing that Elon mus showed up
at the treasury Department or the
Department of Labor seeking information
right so I mean that's why like you said
Discovery is really important but I have
one more question I want to ask you so
the judge in this Department of Labor
case denied the plaintiff's motion for a
temporary restraining order to block
Doge and Musk from getting access to
this Labor Department data how does it
square away that you deny this motion
for a temporary restraining order but
then follow it up a couple weeks later
saying no I agree you you should get
access to some documents because
something doesn't sound quite right yeah
so look the the standard for a temporary
restraining order is just different it's
like different than anything else in the
law and because what you're asking a
judge to do with a temporary restraining
order is oftentimes on little more than
a single filing and a few hours you are
asking a court to block some action okay
you're literally going to the judge and
saying if you don't act immediately by
immediately like like within minutes or
hours of the filing of the argument
rather then you know there will be a
reparable harm and so you have started
to see page in a number of cases the
judges start to decline issuing or deny
issuing um uh temporary restraining
orders and part of what they're saying
is like look this isn't either as much
of an emergency as you are saying it is
or you you waited a little bit of time
like you you you know if this was going
to be such an emergency you should have
shown up a few weeks ago when this all
started or they're saying look there's
just not enough in your filings for me
to know what's going on here it's just
it's not it's not clear enough to me
what the facts are of this case so in
this instance I think that's what the
judge was saying is that last thing is
like I don't really understand enough to
know who the plaintiffs are here what
their injury is what's the defendants
Theory like who's doing what and so
that's why he denied the temporary
restraining order but that that doesn't
mean the lawsuit's dismissed that just
means that very very short period relief
is denied but the case still goes
forward and the next stage in these
cases is what's referred to as a
preliminary injunction which sounds a
lot like a temporary restraining order
but think about temporary as like I need
relief today and it only has to last 14
days which is usually the period that a
temporary trining order can last a
preliminary injunction is okay your
honor I need a decision like in the next
few weeks you know like I I I don't I
don't have months to wait but I have
days to wait like and we can by the way
your honor do a little Discovery and we
can also put on some witnesses and we
can also submit longer arguments and
briefs right like there's enough
breathing room here your honor that it's
not going to be a full trial it's not
full Discovery it's not all of the bells
and whistles but you can have a hearing
and sort of get your get get more of
your arms around this case and so that's
where we are in this case that's where
we're frankly going to be in a lot of
these cases uh uh in the next couple of
weeks they're going to shift out of this
sort of emergency relief into this sort
of temporary relief and you know
temporary restraining order is a bit of
a misnomer page you you and the do do
Team cover all these cases the
preliminary injunctions uh the
preliminary injunctions in these cases
are not that preliminary uh they tend to
they oftentimes are in place for months
or even years they are preliminary only
in the sense that they are in effect
essentially till the trial is over and
you know given the speed with which the
court uh the federal courts right now
have trials that can be a matter of
years so really the action for the for
most of these cases is going to be at
that preliminary injunction phase not at
the temporary restraining order phase
Mark big news today about the discovery
order what else should we know look I
think that what we need to know is that
this is not going to be one or two
lawsuits that get decided quickly this
is not going to be you know Donald Trump
something does something terrible in
January early February and by the time
we hit the middle of March it's all
resolved in the Supreme Court's rule
like that's just not realistic and so
everybody watching this needs to just
settle in for the Long Haul I know
you're tired okay believe me I'm tired
paig is tired but now is not the time in
history to be tired like now is the time
you know get yourself some coffee get
some caffeine do what you need to do to
wake up because we are entering into a
prolonged period in which the courts are
going to be Central to whether or not
democracy survives the courts are going
to be a a the the courts are going to be
in the news every day for a long period
to come and you cannot tune it out you
cannot look for you know for short
answers and you cannot look at any one
case and say okay this case is going to
decide everything or this case if we
lose you know means all is lost that
just isn't the way it's going to work
it's going to be a lot of hard work by a
lot of lawyers and a lot of legal
organizations doing a lot to fight um
against this and we're GNA hopefully
have judges who you know who stand up
for democracy in court which is after
all page like the central mission of
what democracy docket exists to cover
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