Don't look too closely US tries to keep DOGE and Musk work secret in appeal of court-ordered discovery Judge's discovery order is too "intrusive," Trump admin tells appeals court. Jon Brodkin Mar 19, 2025 3:56 pm | 30 A protest over DOGE's reductions to the federal workforce outside the Jacob K. Javits Federal Office Building on March 19, 2025 in New York City. Credit: Getty Images | Michael M. Santiago A protest over DOGE's reductions to the federal workforce outside the Jacob K. Javits Federal Office Building on March 19, 2025 in New York City. Credit: Getty Images | Michael M. Santiago Story textSizeSmallStandardLargeWidth *StandardWideLinksStandardOrange* Subscribers only Learn moreElon Musk and President Trump are fighting a court order to turn over information about DOGE, the US Department of Government Efficiency.US District Judge Tanya Chutkan ruled last week that New Mexico and 13 other states suing Musk and the federal government can serve their written discovery requests on Musk, the US Department of Government Efficiency (DOGE) Service, and US DOGE Temporary Organization. The states' lawsuit alleges violations of the US Constitution's appointments clause and conduct in excess of statutory authority."Plaintiffs' requests, as amended by the court, are reasonable and narrowly tailored to their request for injunctive relief," and "expedited discovery is reasonable and necessary to evaluate Plaintiffs' request for injunctive relief," Chutkan, a judge at US District Court for the District of Columbia, wrote in a memorandum opinion.Plaintiffs said they aren't seeking information from Trump himself and did not ask for depositions of either Trump or Musk. But in a challenge to the US Court of Appeals for the District of Columbia Circuit, government attorneys said the discovery is "intrusive" and contrary to "separation-of-powers principles and the 'high respect' that courts must afford the President in the conduct of his constitutional duties.""The district court's order permits plaintiffs to take sweeping and intrusive discovery into the operations of the Office of the President, requiring the Chief Executive to produce information detailing both the substance of the advice provided by his closest advisors and the process through which that advice was formulated and communicated to the President and other Executive Branch officials," said an emergency motion for a stay of the ruling.Filing: Musks advice to Trump should be secretThere is also a petition to quash the District Court order filed yesterday by Musk, Trump, and DOGE. It said:The district court's broadly phrased and premature discovery order raises grievous separation-of-powers concerns. It requires the government to produce information regarding the activities of the US DOGE Service (USDS)an organization within the Executive Office of the Presidentand close presidential advisor Elon Musk. The order requires the White House to provide detailed information regarding the substance of the advice USDS and Mr. Musk have provided and the process through which that advice has been formulated and communicated within the Executive Branch. This unusual and highly invasive order threatens "the Executive's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications" and fails to accord the "high respect that is owed to the office of the Chief Executive" in the conduct of litigation.Discovery should be a last resort and not conducted "at the very outset of the case, before any motion for a preliminary injunction and before resolving the government's motion to dismiss, which could obviate the need for discovery altogether or substantially narrow it," the petition said.The petition argues that discovery is unnecessary to assess the plaintiff states' claims. "Plaintiffs allege a violation of the Appointments Clause and USDS's statutory authority on the theory that USDS and Mr. Musk are directing decision-making by agency officeholders," it said. "Those claims present pure questions of law that can be resolvedand rejectedon the basis of plaintiffs' complaint. In particular, precedent establishes that the Appointments Clause turns on proper appointment of officeholders; it is not concerned with the de facto influence over those who hold office."States: Discovery can confirm Musks role at DOGEThe states' lawsuit alleged that "President Trump has delegated virtually unchecked authority to Mr. Musk without proper legal authorization from Congress and without meaningful supervision of his activities. As a result, he has transformed a minor position that was formerly responsible for managing government websites into a designated agent of chaos without limitation and in violation of the separation of powers."States argued that discovery "may confirm what investigative reporting has already indicated: Defendants Elon Musk and the Department of Government Efficiency ('DOGE') are directing actions within federal agencies that have profoundly harmed the States and will continue to harm them."Amy Gleason, the person the White House claims is running DOGE instead of Musk, has reportedly been working simultaneously at the Department of Health and Human Services since last month."Defendants assert that Mr. Musk is merely an advisor to the President, with no authority to direct agency action and no role at DOGE," the states' filing said. "The public record refutes that implausible assertion. But only Defendants possess the documents and information that Plaintiffs need to confirm public reporting and identify which agencies Defendants will target next so Plaintiffs can seek preliminary relief and mitigate further harm.""Notably, Plaintiffs seek no emails, text messages, or other electronic communications at this stage, meaning Defendants will not need to sort through such exchanges for relevance or possible privilege," the states said. "The documents that Plaintiffs do seekplanning, implementation, and organizational documentsare readily available to Defendants and do not implicate the same privilege concerns."Discovery related to DOGE and Musks conductChutkan wrote that the plaintiffs' "document requests and interrogatories generally concern DOGE's and Musk's conduct in four areas: (1) eliminating or reducing the size of federal agencies; (2) terminating or placing federal employees on leave; (3) cancelling, freezing, or pausing federal contracts, grants, or other federal funding; and (4) obtaining access, using, or making changes to federal databases or data management systems."These requests are reasonable because "evidence that Defendants eliminated agencies that work with Plaintiffs, terminated employees responsible for managing programs with Plaintiffs, or cancelled contracts with Plaintiffs is relevant to whether Defendants exceeded their statutory and constitutional authority," she wrote.Chutkan decided that "expedited discovery is in the best interest of all parties," but imposed some limits. She did not allow two depositions of DOGE personnel that states requested "to obtain targeted testimony on the documents produced and the responses to the written discovery." Plaintiffs asked for a seven-day deadline, but Chutkan ruled that defendants will have 21 days to produce requested information."Plaintiffs' discovery requests, as amended by the court, are narrowly tailored to support their forthcoming motion for a preliminary injunction," she wrote. "The burden to Defendants is minimized by the narrow time period for responsive materials [January 20, 2025 to the present], the exclusion of electronic communications, explicitly exempting President Trump from the requests, extending Defendants' time to respond, and denying Plaintiffs' request to notice depositions.""If Defendants fail to adequately respond to Plaintiffs' written discovery, Plaintiffs may renew their requests for depositions," the judge's order noted.The discovery deadline is April 2. The US government motion for an emergency stay asked the appeals court to rule by March 26 "to provide the government with time to seek relief from the Supreme Court, if necessary." The US government also asked for the discovery deadline to be delayed "until 21 days after the Court decides the government's stay motion, so that the Executive Branch will not have to incur the burden of preparing responses to the plaintiffs' overbroad and improper discovery requests."Jon BrodkinSenior IT ReporterJon BrodkinSenior IT Reporter Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry. 30 Comments