TX Respnse Scheduling Order 051312

7/31/2019 TX Respnse Scheduling Order 051312

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THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE STATE OF TEXAS,

Plaintiff

vs.

ERIC H. HOLDER, JR., in his

Official Capacity as Attorney General

Of the United States,

Defendant

Case No. 1:12-CV-00128

(RMC, DST, RLW)

Three-Judge Court

RESPONSE BY THE STATE OF TEXAS TO ORDER REGARDING

SCHEDULING

The State of Texas remains ready, willing, and able to work steadfastly

toward achieving the goals outlined in the Courts proposed order. Toward that

end, today the State completed production to the Department of Justice and

Intervenors of all requested databases. Going forward, the State can and will

comply with all requirements necessary to get this case to trial by July 9, 2012,

subject only to the reasonable limitations detailed below.1

At this point in the proceedings, one thing is clear: All parties should be

required to expedite remaining discovery and move promptly toward trial on July 9.

As explained below, the State is fully prepared to do its part by complying with the

timelines proposed by the Court to the extent compliance is reasonably possible.

1 The State respectfully disagrees with the Courts view that discovery delays are the fault of only one party to this

litigation. But with the July 9 trial date in jeopardy and the possibility looming that Texas will not be able to enforce

its duly enacted voter identification law in time for the November 2012 elections, the focus should be on doing

everything possible to move this case toward judgment.

Case 1:12-cv-00128-RMC-DST-RLW Document 112 Filed 05/09/12 Page 1 of 16


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Because so many aspects of discovery are outside the Texas Attorney Generals

control and because of the inherent vagaries of litigation, counsel for the State

cannot certify under oath that future events in this process will absolutely take

place. Many of the future events about which the Court has asked counsel to make

certifications are subject to the intervening actions of people and agencies outside

counsels controlincluding the opposing parties. While we cannot certify under

oath that the discovery process will play out precisely as envisioned in the Courts

order, we can assure the Court that we will do everything in our power to

comply with the vast majority of the Courts proposal. Some parts of the

Courts proposal, however, cannot be complied with, such as the requirement that

counsel for the State preemptively waive privileges that do not belong to counsel

and that have not yet been asserted.

Accordingly, the State urges the Court to reconsider the portions of its

proposal that cannot reasonably be complied with, which are identified below. In

addition, the State asks that this Court consider modifying the proposed terms so

that both the State and all Defendants are required to do everything in their power

to move toward a July 9 trial. If relatively minor adjustments are made to the

Courts proposal, the State can and will comply with it, and the July 9 trial date can

and will be preserved.

I. The State Will Do Everything in Its Power To Comply With the

Achievable Aspects of the Courts Scheduling Proposal.

At the time of this filing, the State has complied with paragraph 2 of the

Courts proposal by producing all requested databases to the DOJ and Intervenors



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in an agreed-upon format. The State initially produced these databases to the

United States on March 30, 2012 and to Intervenors on April 13, 2012. And since

the Defendants request for supplemental database fields, the State has worked

tirelessly to obtain these complex databases from the relevant state agencies and

then to produce these sensitive materials as quickly as possible. As discussed

below, however, the State cannot comply with the second part of paragraph 2

because it is contingent on events outside the States control, including the actions

of opposing counsel.

Texas will comply with paragraph 3 of the Courts proposal by completing

production of non-privileged documents other than those gathered pursuant to

electronic search terms no later than May 11, 2012.

Texas will make every effort possible to comply with paragraph 4 of the

Courts proposal by completing production of electronic-search-term discovery by

May 21, 2012. Because the State received modified search terms from Defendants

only today, it has not been able to run searches to determine the volume of data

that must be reviewed and produced by this deadline. Assuming that the modified

search terms substantially reduce the number of e-mails that must be reviewed

(which is the purpose of running the modified terms), the State should be able to

comply with the May 21 deadline. As soon as the State has done the analysis

necessary to know with certainty that the May 21 deadline is achievable, the State

will inform the Court of that fact.



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Texas has already complied with Paragraph 5 of the Courts proposal by

agreeingat the instruction of the courtto forego subpoenas for non-party

witnesses such as legislators and legislative and executive staff, without waiving

any privileges or appellate rights. By contrast, the United States has informed the

Court that federal agencies will not produce data regarding passports, citizenship

certificates, or military identification without a subpoena. See, e.g., See Transcript

of Telephonic Hearing (April 30, 2012) at 12:1011 ([U]nder the rules its our view

that Texas must serve subpoenas on all five of these non-party agencies.).2 The

State respectfully requests that the Court reject the Department of Justices

unsupportable contention that federal executive branch agencies are non-parties

here. All parties should be equally required by the Court to forego subpoenas, as

the State has already done.

Texas has already complied with Paragraph 7 of the Courts proposal by

making legislators available for depositions the week of May 14. While we are

currently working with counsel for the Defendants to set firm dates for all these

2Texas sued Attorney General Eric Holder in his official capacity as an agent of the United States.

As a result, the real party in interest is the United States, not Mr. Holder. See, e.g., Kentucky v.

Graham, 473 U.S. 159, 165 (1985) (Official-capacity suits . . . generally represent only another way

of pleading an action against an entity of which an officer is an agent.) (quotingMonell v. New York

City Dept. of Social Services, 436 U. S. 658, 690, n.55 (1978)). Moreover, the Department of Justicehas consistently recognized this fact by referring to the United States as the defendant in this case.

See, e.g., Letter from Jennifer L. Maranzano to Jonathan F. Mitchell (March 19, 2012) (We write to

provide you with a preliminary list of members of the Texas legislature whom the United States will

seek to depose . . . .); United States and Defendant-Intervenors Status Report (Doc. 29); United

States Motion for a Protective Order (Doc. 44); United States Statement in Support of its Request to

Depose and Seek Documents from State Legislators and Staff (Doc. 69); Transcript of Telephonic

Hearing (March 27, 2012) at 4:67 (This is Elizabeth Westfall for the United States.); Transcript of

Telephonic Hearing (April 3, 2012) at 33:1617 (Congress has made the United States the statutory

defendants in this case.).



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depositions, the witnesses have been made available by the State for depositions

next week.

II. In Response to Defendant-Intervenors Expansive Discovery

Requests, the State Has Worked Diligently to Respond in a TimelyFashion.

So far, the State has turned over all non-privileged, responsive documents

(except for documents gathered from searches of over 120 e-mail accounts)

requested from the Texas Secretary of State, DPS, 9 legislators, Texas Legislative

Council, the Lieutenant Governors office, and the Governors office. It has also

provided all transcripts from committee hearings, floor debates, and journals.

Although many of these hearings and debates are not transcribed, the audio

recordings are available for public consumption. The State nevertheless has, at its

own expense, transcribed many of these hearings. In all, the State has reviewed

and logged over 90,000 pages of documents, and it has produced 32,499 pages of

non-privileged, responsive documents. The State has also produced three witnesses

for deposition under Rule 30(b)(6) and has several more deponents scheduled for

next week.

The State has produced, and now supplemented, the States DPS, CHL, and

T.E.A.M. databases. In response to similar requests made by the State, the United

States has acknowledged that the production of massive databases is complex,

outside its expertise, and fraught with confidentiality concerns. See, e.g., Transcript

of Telephonic Hearing (April 30, 2012) at 13:1619 ([T]here are tremendous

complexities from the standpoint of having databases that are not meant to interact



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with each other, interacting with each other in discovery in this matter.); id. at

12:1216 ([N]either the Attorney General nor the Department of Justice is an

expert in the maintenance or IT system that supports the documents, databases or

ESI that has been requested by Texas of those five agencies.); id. at 12:1719 (We

are also not in a position at this time to represent to the Court of all of the many

confidentiality related considerations that each agency must raise . . . .). Texas

recognizes the difficulties articulated by DOJ because they apply equally to the

Texas Attorney Generals own efforts to produce the DLS, CHL, and T.E.A.M.

databases, which contain tens of millions of records and include a wide variety of

sensitive information. Given these difficulties, it is undeniable that the State has

moved expeditiously to produce the databases requested by the Defendant-

Intervenors.

This is particularly evident when compared to DOJs response to the States

requests for information. DOJ made its initial request for the DPS, CHL, and

T.E.A.M. databases on March 20, 2012. Within 10 days, the State had delivered all

the fields in each of the three databases that it believed were necessary for DOJ to

conduct its analysis. Within 14 days of its initial request, the State provided

complete manuals to DOJ that described in detail the DPS and CHL databases.

After reviewing the databases and the manuals, DOJ determined it wanted

additional data fields. To facilitate the process, Texas arranged teleconferences

between necessary IT staff from SOS and DPS to meet with Defendant Intervenors.

On May 1, 2012, the parties settled on additional fields that would be produced. By



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May 4 and May 9, the State had produced to DOJ new versions of all three

databases containing the additional fields requested.

In contrast, nearly 30 days have passed since Texas made its initial request

for information to the DOJ regarding holders of military identification, citizenship

certificates, and passports. That request was made on April 13. As of today, the

United States has not provided any information about the federal agency databases

containing records of Texans who hold a U.S. passport, U.S. military identification,

or a U.S. citizenship certificate, or indicated when it will produce the information

needed by the State of Texas. Nor had it investigated the States request as of April

30. See, e.g., Transcript of Telephonic Hearing (April 30, 2012) at 22:__ (THE

COURT: You dont know do you, Ms. Westfall, as to the nature of the records

maintained by HHS or . . . Social Security . . . . MS. WESTFALL: I dont know,

Your Honor, the nature of the records.). Given the admitted complexities involved

in producing such complicated and sensitive data, there can be no doubt that the

State acted cooperatively and expeditiously in producing this information.

III. The Court Should Adjust The Aspects of Its Proposal With Which the

State Cannot Reasonably Comply.

As explained above, the State is committed to complying with the majority of

the Courts proposal as all parties work diligently toward the July 9, 2012 trial date.

Counsel for the State cannot, however, make certifications under oath about future

events that are not entirely in counsels control. Most notably, the State cannot

control the behavior of the Department of Justice or the Intervenors, both of whom

have expressed a desire to delay these proceedings.



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Paragraph 2 of the Courts proposal asks the State to make certifications

about matters that are almost entirely in the control of the Defendants. The State

has already produced the agreed-upon databases. But the State cannot at this time

know what materials Defendants will later consider necessary for purposes of

comparing the data in these databases against each other or necessary to render

the information reasonably useable to undertake an analysis of those data. As

Texas reads the Courts order, paragraph 2 would require the State to make a

forward-looking guarantee that Defendants will not at a later date determine that

more data is necessary for their analysis or that additional information is necessary

to make the existing data reasonably usable. The United States, for example,

recently informed Texas that it has not completed its review of the three databases

and that it reserves the right to bring additional deficiencies to the Courts

attention. See Letter from Elizabeth S. Westfall to Patrick K. Sweeten (May 7,

2012) (Exh. 1). Given the size and complexity of the databases, Texas cannot

guarantee that any production will be entirely free from error. As currently

written, the Courts proposal seems to give the Department of Justice and the

intervenors complete discretion to define the standards and therefore to judge

whether Texas has complied. While Texas believes that it has complied with the

Courts orders and substantially satisfied the Defendants requests for additional

data, it cannot represent to the Court that the United States and the Intervenors

will not later allege some deficiency. For this reason, Texas cannot comply with the

second portion of paragraph 2.



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Counsel for the State also cannot comply with paragraph 6 of the Courts

proposal. The Court has asked Texas to certify that it will not assert any new

privileges as to any documents or witnesses other than those already represented to

this Court. While Texas has no current plans to raise any new privileges,

Texas cannot make this certification for two reasons. First, Texas cannot predict

any and all future requests that DOJ or the Defendant-Intervenors might make

with respect to documents, nor can Texas predict any and all questions that might

be asked of witnesses in depositions or at trial. Because Texas is not in a position to

know at this time what might arise over the course of discovery or at trial, it cannot

make a blanket waiver of any new privileges. Second, Texas (and the Office of the

Attorney General) does not hold all potential privileges that could become at issue;

the potential witnesses hold many of these privileges. Thus, even if now was an

appropriate time to effect a blanket waiver of all future privileges, the Office of the

Attorney General could not unilaterally do so.

Finally, the Courts Proposal imposes a May 21, 2012 deadline for filing of

discovery motions with a corresponding reply date of May 24th, 2012. To date, the

State of Texas has several outstanding discovery requests to the United States and

Intervenors. Their discovery responses remain incomplete and have been the

subject of follow-up correspondence between the parties. These conversations have

primarily addressed the multiple federal databases the State of Texas first

requested from the United States on April 13, 2012. The imposition of a discovery

motion deadline of May 21, 2012, coupled with the multiple unresolved discovery



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issues due to the United States and Intervenors unwillingness to promptly turn

over information, would limit the ability of the State of Texas to obtain full relevant

discovery from Defendants.

Conclusion

The State of Texas stands ready to comply fully with all achievable aspects of

the Courts proposal. Accordingly, the State respectfully requests that the Courts

proposal be modified as follows:

- Remove the requirement that counsel personally certify under oath thatfuture events outside of counsels control will take place;

- Amend paragraph 2 to require the State to respond with all reasonablediligence and speed when and if the DOJ and Intervenors identify

deficiencies in the databases that have been timely produced by the State;

- Remove Paragraph 6;- Add a requirement that the Department of Justice and Intervenors forego

demands for subpoenas of non-party agencies and produce all relevant

databases and other discovery to the State in a timeframe that will allow

the State to review the production and bring any necessary discovery

motions.

Dated: May 9, 2012 Respectfully submitted.

FOR THE PLAINTIFF:

GREG ABBOTT

Attorney General of Texas



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DANIEL T. HODGE

First Assistant Attorney General

JONATHAN F. MITCHELL

Solicitor General

/s/Patrick K. Sweeten

PATRICK K. SWEETEN

Assistant Attorney General

ADAM W. ASTON

Principal Deputy Solicitor General

ARTHUR C. DANDREA

Assistant Solicitor General

MATTHEW H. FREDERICK


Office of the Attorney General

P.O. Box 12548, Capitol Station

209 W. 14th Street

Austin, Texas 78701

(512) 936-1695

Attorneys for the State of Texas



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CERTIFICATE OF SERVICE

I certify that on May 9, 2012, I served the foregoing via CM/ECF or e-mail on

the following counsel of record:

Elizabeth Stewart WestfallDaniel J. Freeman

Bruce I. Gear

Jennifer Lynn Maranzano

U.S. DEPARTMENT OF JUSTICE

Civil Rights Division, Voting Section

950 Pennsylvania Avenue, NW

NWB-Room 7202

Washington, DC 20530

(202) 305-7766/Fax: (202) 307-3961

Email: [email protected]



Email:[email protected]

Counsel for the United States

Chad W. Dunn

BRAZIL & DUNN

4201 FM 1960 West, Suite 530

Houston, TX 77068

(281) 580-6310


J. GERALD HEBERT

191 Somerville Street, #405

Alexandria, VA 22304

Telephone: 703-628-4673


Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasy,

Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio

Deleon

JOHN K. TANNER3743 Military Road, NW


202-503-7696




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MOFFATT LAUGHLIN McDONALD

NANCY GBANA ABUDU

KATIE OCONNOR

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440Atlanta, Georgia 30303-1227

(404) 523-2721/(404) 653-0331 (fax)




LISA GRAYBILL

REBECCA ROBERTSON

American Civil Liberties Union Foundation of Texas

1500 McGowan Street

Houston, Texas 77004

(713) 942-8146



PENDA HAIR

KUMIKI GIBSON

Advancement Project

1220 L Street, NW, Suite 850


(202) 728-9557Email: [email protected]


Counsel for Texas Legislative Black Caucus, the League of Women Voters of Texas,

the Justice Seekers, Reverend Peter Johnson, Reverend Ronald Wright and Donald

Wright

Mark A. Posner

LAWYERS' COMMITTEE FOR CIVIL RIGHTS

1401 New York Avenue, NW, Suite 400


(202) 307-1388Email: [email protected]



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Ezra D. RosenbergPro Hac Vice

Michelle Hart Yeary

DECHERT LLP

902 Carnegie Center, Suite 500

Princeton, NJ 08540

(609) 955-3200/Fax: (609) 955-3259Email: [email protected]


Ian Vandewalker Pro Hac Vice

Myrna Perez

Wendy Weiser

THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL

161 Avenue of the Americas, Floor 12

New York, NY 10013-1205

Tel: (646) 292-8362

Fax: (212) 463-7308




Myrna Perez Pro Hac Vice

Ian Vandewalker Pro Hac Vice

THE BRENNAN CENTER FOR JUSTICE AT

NYU LAW SCHOOL

161 Avenue of the Americas, Floor 12

New York, NY 10013-1205(646) 292-8329 / (212)463-7308 (fax)



Victor L. Goode

NAACP National Headquarters

4805 Mt. Hope Dr.

Baltimore, Maryland 21215-3297

(410) 580-5120 (phone)


Robert S. Notzon

The Law Office of Robert Notzon

1507NuecesSt.

Austin, Texas 78701

(512) 474.7563 (phone)




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Jose Garza

Law Office of Jose Garza

7414 Robin Rest Dr.

San Antonio, Texas 98209

(210) 392-2856 (phone)

Email: [email protected] for Texas State Conference of NAACP Branches, Mexican American

Legislative Caucus of the Texas House

of Representatives

Ryan Haygood Pro Hac Vice

Natasha M. Korgaonkar

Leah C. Aden

Debo P. Adegbile

Dale E. Ho

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson Street, Suite 1600

New York, New York 10013

(212) 965-2200 / (212) 226-7592 (fax)







FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP

Douglas H. Flaum

Michael B. de Leeuw

One New York Plaza

New York, New York 10004-1980

(212) 859-8000




Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence

Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and BriannaWilliams



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Nina Perales

Amy Pedersen

MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC.

110 Broadway, Suite 300

San Antonio, TX 78205

(210) 224-5476 / 210-224-5382 (fax)Email: [email protected]


Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration

Education Project, Nicole Rodriguez, Victoria Rodriguez

/s/ Patrick K. Sweeten

PATRICK K. SWEETEN




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THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE STATE OF TEXAS,

Plaintiff

vs.

ERIC H. HOLDER, JR., in his

Official Capacity as Attorney General

Of the United States,

Defendant

Case No. 1:12-CV-00128

(RMC, DST, RLW)

Three-Judge Court

RESPONSE BY THE STATE OF TEXAS TO PROPOSED TERMS

EXHIBIT 1

May 7, 2012 Letter from Elizabeth S. Westfall to Patrick Sweeten

Case 1:12-cv-00128-RMC-DST-RLW Document 112-1 Filed 05/09/12 Page 1 of 3


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TX Respnse Scheduling Order 051312

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