Case 1:12-cv-00128-RMC-DST-RLW Document 107

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) )

STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., Defendant.

Civil Action No. 12-cv-128 (DST, RMC, RLW)

ORDER Before the Court are the United States and Defendant-Intervenors Motions to Clarify the Trial Schedule (Dkt. Nos. 88 and 85). This Court has carefully considered the parties briefs, oral argument, and the entire record in this case, particularly the parties representations at the numerous discovery conferences in this expedited matter and the parties conduct during the discovery process thus far. At the initial status conference in this case, the United States asserted its belief that this case could not be prepared and tried in time for the State of Texas to implement S.B. 14 prior to the November 2012 general election. This Court rejected that position, stating the Courts firm view that, if S.B. 14 is valid under the Voting Rights Act (VRA), Texas is entitled to preclearance in time for the November 2012 election. Based on Texas request for expedited review so that it may implement S.B. 14 prior to the November election, this Court set a rigorous schedule for expedited discovery, briefing and trial. To date, Defendants have worked tirelessly in discovery so that this case may be tried the week of July 9, 2012. The Court, moreover, has made itself promptly available on numerous occasions to hear and resolve any disputes that would otherwise delay discovery. 1

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Unfortunately, Texas has failed to act with the same diligence and sense of urgency. Although Texas states that its paramount objective is obtaining preclearance and implementing S.B. 14 in time for the November 2012 general election, Texas actions reflect a wholly different view. Rather than engaging in expedited discovery consistent with its stated goal, Texas has taken steps that can only be interpreted as having the aim of delaying Defendants ability to receive and analyze data and documents in a timely fashion. Texas has repeatedly ignored or

violated directives and orders of this Court that were designed to expedite discovery, and Texas has failed to produce in a timely manner key documents that Defendants need to prepare their defense. Most troubling is Texas conduct with respect to producing its key state databases, which are central to Defendants claim that S.B. 14 has a disparate and retrogressive impact on racial and/or language minority groups. 1 The record reflects that these databases are voluminous, complex, and essential to the preparation of the opinions of Defendants expert witnesses. Yet, according to Texas, the full production of such databases to the United States was only complete on May 4, 201235 days after they were initially due. (Dkt. No. 43 at 5). The production to Defendant-Intervenors is still not complete. 2 Texas discovery violations are well-documented in Defendants pending motions and in the countless discovery conferences with the Court. It should be no surprise to Texas that this Court has been troubled by Texas dilatory conduct. The specific instances of delay detailed in It was apparent at the May 3, 2012 status hearing that Texas does not consider evidence from the databases to be a critical part of the evidence it will rely upon at trial. 2 One of the many examples of Texas dilatory conduct is that, although Texas represented to the Court on Thursday, May 3, 2012, that it would finally complete production of all relevant database information to Defendants by Friday, May 4, 2012, Texas filed a Notice on 5:15 p.m. EST May 4 advising that it would, in fact, not be able to produce that information to DefendantIntervenors until the next week. (Dkt. No. 105). Texas claimed that the delay was due in part to the fact that its internal audit [was] necessarily more extensive for databases that will be produced to private parties, as opposed to a federal law enforcement agency. (Dkt. No. 105 at 2). Texas had every opportunity, but failed, to raise this concern to the Court the previous day. 2
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Defendants briefsmuch of which is not specifically rebutted or contested by Texasand revealed or confirmed at the May 3, 2012 hearing, has troubled this Court even more. Although this Court still firmly believes that Texas is entitled to implement S.B. 14 for the November 2012 election if it is a valid law under the VRA, this Court will not continue to grant such an expedited review while Texas obstructs discovery in a manner that potentially severely prejudices Defendants ability to prepare for trial. Based upon the record to date, this Court would be well within its discretion to continue the July 9 trial date, to impose monetary sanctions against Texas, or to keep the July 9 trial date and impose evidentiary sanctions such as an adverse inference upon Texas. At this time, however, the Court is inclined to exercise its discretion to defer ruling on the pending Motions for Clarification in favor of attempting one final time to accommodate Texas request for a trial the week of July 9, 2012. However, given the delays in discovery that have already occurred and the limited time that remains to prepare for trial, the Court finds that the only way that this case can be ready for trial on July 9 is if every single future deadline, and every single condition, that are set forth in this Order can and will be met by Texas. If any of these deadlines or conditions cannot or will not be met, then the delays or ancillary litigation that will result will either make a July 9 trial impossible at all, or impossible without undue and manifest prejudice to the United States and Defendant-Intervenors. If Texas does not believe in good faith that it is able or willing to abide by all of these deadlines or conditions, then it needs to inform the Court now, so that the Court and all parties will know that the July 9 trial date is truly impossible. Accordingly, it is hereby,

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ORDERED that lead counsel of record for the State of Texas must certify without equivocation, under oath, and in good faith no later than Wednesday, May 9, 2012, 5:00 p.m. EST, that: 1. Counsel for the State of Texas has conferred with the client, as well as any and all document custodians, information technology personnel, legal staff and administrative staff involved in this matter regarding the deadlines in this Order, and can confirm in good faith that Texas is able to comply fully with every deadline, term and condition set forth in this Order; 2. Texas has completed production of all relevant databases to the United States, and will produce to Defendant-Intervenors by May 9, 2012, in a format agreed upon by the parties, along with all available underlying data necessary for purposes of comparing the data in these databases against each other and the supplemental information necessary to render the information reasonably useable to undertake an analysis of those data; 3. Texas will produce all non-privileged documents to Defendants (other than those gathered and produced pursuant to electronic searches pursuant to search terms as set forth in the next paragraph), without imposing a further qualification for documents that are not of public record, with privilege logs fully compliant with the requirements of Federal Rule of Civil Procedure 26(b)(5) no later than Friday, May 11, 2012; 4. After receiving modified search terms from Defendants by Wednesday, May 9, 2012, Texas will search its e-mail and electronic databases with those terms and produce all non-privileged e-mails and related documents to Defendants, without imposing a further qualification for documents that are not of public record, with privilege logs fully

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compliant with the requirements of Federal Rule of Civil Procedure 26(b)(5) no later than Monday, May 21, 2012; 5. Texas will not require the service of a subpoena to produce any witnesses (or documents in the possession of a witness) from current state legislators or their staff, the Texas Legislative Council, the Department of Public Safety, the staff of the Secretary of State, the staff of the Lieutenant Governor, or the staff of the Governor, and will abide by any rulings relating to any and all objections, including but not limited to those based upon privilege, that are made by this Court; 6. Texas will not assert any new privileges as to any documents or witnesses other than those already represented to this Court; 7. Texas will produce the legislator deponents that Defendants have noticed the week of May 14, 2012; and 8. Texas will not violate any further discovery deadlines or Orders from this Court and will comply fully and in good faith with such discovery. IT IS FURTHER ORDERED that the parties shall file a joint report no later than 5:00 p.m. EST Tuesday, May 8, 2012, advising the Court of the status of database discovery. If any Defendant or Defendant-Intervenor contends that the databases produced are incomplete, in an incorrect format, or otherwise non-compliant, that party shall submit an affidavit from their expert witness(es) no later than 5:00 p.m. EST Tuesday, May 8, 2012, setting forth in detail: 1) why the production was inadequate or non-compliant; and 2) what steps need to be taken to cure the deficiency so that the expert witness is able to conduct his/her analysis. It is, FURTHER ORDERED that a ruling on Defendants Motion for Clarification is held in abeyance subject to Texas filing such certification on Wednesday, May 8, 2012 and pending the

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representations made in the joint status report filed on Tuesday, May 8, 2012 regarding database discovery, and it is, FURTHER ORDERED that, based on the testimony of Keith Ingram at the May 3, 2012 hearing, the Court finds that it is possible for the State of Texas to implement S.B. 14 for the November election if it receives a decision from this Court by August 31, 2012 as opposed to August 15, 2012; and it is, FURTHER ORDERED that if the July 9, 2012 trial date holds, then the following deadlines shall govern this case: May 21, 2012: Last date to file discovery motions, including those with respect to the depositions occurring the week of May 14, 2012 regarding state legislative privilege. May 24, 2012: Oppositions to discovery motions filed on May 21, 2012. (Oppositions to motions filed before May 21, 2012, are due three business days after the Motion) May 29, 2012: Replies in support of discovery motions filed on May 21, 2012. (Replies in support of Motions filed before May 21, 2012, are due two business days after the Oppositions). June 1, 2012: June 8, 2012: June 15, 2012: June 20, 2012: Expert disclosures due (Dkt. No. 43 at 8) Rebuttal expert disclosures due (Id.) Fact and expert discovery closes (Id. at 9) 1. By 5:00 p.m. EST, the parties shall file a Notice with the Court identifying by name (and if applicable, official title) of all witnesses, including experts, the party intends to call

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as a live witness, and providing a brief summary of the witnesss testimony and why the testimony should be presented live rather than through the paper record. 2. By 5:00 p.m. EST, Texas shall file its Proposed findings of fact and conclusions of law in accordance with Appendix A. (Dispositive motion briefing in Dkt. No. 43 is vacated as is the pretrial conference). 3. All motions in limine due 4. Joint appendix due June 25, 2012: 1. By 5:00 p.m. EST, the Defendants and DefendantIntervenors shall file their Oppositions and Additional proposed findings of fact and conclusions of law in accordance with Appendix A. 2. Oppositions to motions in limine due. June 29, 2012: 1. By 5:00 p.m. EST, Texas shall file its Reply to the Defendant and Defendant-Intervenors Opposition and Additional proposed findings of fact and conclusions of law in accordance with Appendix A. 2. Any replies to motions in limine due. July 2, 2012: Defendants and Defendant-Intervenors shall file their Reply in support of their proposed findings of fact and conclusions of law in accordance with Appendix A.

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July 5, 2012:

The Court shall notify the parties which witness testimony it will hear live at the trial during the week of July 9th.

July 9-13, 2012:

The Court will hear live testimony from the witnesses it identified on July 5, 2012.

SO ORDERED. Date: May 7, 2012 /s/ DAVID S. TATEL United States Circuit Judge

/s/ ROSEMARY M. COLLYER United States District Judge

/s/ ROBERT L. WILKINS United States District Judge

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APPENDIX A PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW The parties shall comply with the following instructions when briefing proposed findings of fact and conclusions of law (FoFs/CoLs): I. Texas and Defendants/Defendant-Intervenors (as a group) shall each be allocated a total of one hundred and fifteen (115) pages to brief proposed FoFs/CoLs. a. Texas shall have no more than forty-five (45) pages to set forth its proposed FoFs/CoLs. b. Defendants/Defendant-Intervenors shall have no more than forty-five (45) pages to respond to Texas proposed FoFs/CoLs. c. Defendants/Defendant-Intervenors shall have an additional forty-five (45) pages to set forth their additional proposed FoFs/CoLs. d. Texas shall have no more than forty-five (45) pages to respond to Defendants/Defendant-Intervenors proposed FoFs/CoLs. Texas shall have an additional twenty-five (25) pages for its reply in support of its proposed FoFs/CoLs. e. Defendants/Defendant-Intervenors shall have no more than twenty-five pages (25) pages for their reply in support of their proposed FoFs/CoLs. f. All text shall be double-spaced and in thirteen point Times New Roman, and margins shall be set at one inch. g. Each submission shall be accompanied by a table of contents and a table of authorities, neither of which shall count towards page limitations. II. The parties shall file a single appendix with sequentially numbered pages and exhibits. a. The appendix must include all the evidence upon which the parties intend to rely. That evidence may include, among other things: affidavits and declarations; deposition testimony; expert reports; jointly stipulated facts; documents and interrogatory responses; and legislative history. b. Exhibits shall be properly edited to provide the Court with sufficient context, but to exclude irrelevant material.

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c. The parties shall use optical character recognition or an analogous technology to convert scanned images of handwritten, typewritten, or printed text into machineencoded text. III. When proposing FoFs/CoLs, a party shall set forth a statement of any and all proposed FoFs/CoLs in sequentially numbered paragraphs. a. Each paragraph must include precise citations to the relevant support. For proposed FoFs, that should be the appendix. For proposed CoLs, that should be the relevant legal authority. In addition, when setting forth proposed CoLs, the parties should include legal argument, and should cite back to their supporting proposed FoFs, correlating their legal argument with the underlying factual support. b. Each paragraph of the proposed FoFs must be limited to a single factual assertion or a group of closely related assertions. IV. When opposing proposed FoFs/CoLs, the opposing party shall respond to each paragraph of the other sides proposed FoFs/CoLs with a correspondingly numbered paragraph. a. For each paragraph, the opposing party must set forth any and all information directly relevant to its opposition. That response may include, among other things: any basis for concluding that the materials relied upon do not establish the proffered factual assertion or legal principle; any and all evidentiary objections to the materials relied upon; and precise citations to contradictory or competing evidence in the appendix. b. If a paragraph is undisputed, in whole or in part, the party must so indicate. If a party fails to respond to a paragraph, the Court may deem that paragraph to be undisputed. c. If an evidentiary objection is not expressly identified and argued, it will be deemed to be waived. V. At all times and in all submissions, the parties must furnish precise citations to the appendix when proposing FoFs and CoLs; the Court need not consider materials not specifically identified. Courtesy copies of all submissions shall be delivered to the Court Security Officer at the loading dock located at Third and C Streets (not the Clerks Office or Chambers). a. All hard copies shall be appropriately bound and tabbed for ease of reference. b. For the appendix, the parties shall deliver four (4) courtesy copies instead of six, all addressed to the Chambers of Judge Collyer. 10

VI.

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VII.

Within five (5) business days of the deadline for filing their submissions, the parties shall submit hyperlinked versions of their submissions. The hyperlinks should link to the precise page of the appendix or relevant legal authority cited. Should the parties have any questions about the Courts technological capabilities or preferences, they may contact the Chambers of Judge Collyer.

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