et al. - Moritz College of Lawmoritzlaw.osu.edu/electionlaw/litigation/documents/U.S.Opposition... · COUNTY JUDGES AND COUNTY COMMISSIONERS, et al., Plaintiff-Intervenors, v. STATE

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION MARC VEASEY, et al., Plaintiffs, v. RICK PERRY, et al., Defendants.

Civil Action No. 2:13-cv-193 (NGR)

UNITED STATES OF AMERICA, Plaintiff, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Plaintiff-Intervenors, TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, et al., Plaintiff-Intervenors, v. STATE OF TEXAS, et al., Defendants.


Case 2:13-cv-00193 Document 254 Filed in TXSD on 04/29/14 Page 1 of 15

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TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Plaintiffs, v. NANDITA BERRY, et al., Defendants.


BELINDA ORTIZ, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants


UNITED STATES’ OPPOSITION TO TEXAS LEGISLATORS’

MOTION TO QUASH SUBPOENAS

Defendants the State of Texas, John Steen, and Nandita Berry demanded that the United

States issue subpoenas to obtain vital discovery from current and former legislators who have

supported photographic voter identification legislation in Texas. See, e.g., Defs. Br. on

Subpoenas (ECF No. 199). Once the United States issued those subpoenas, counsel for the

Legislators repeatedly assured counsel for the United States that legislators would produce some

documents responsive subject to the subpoenas on April 25, 2014. Despite those assurances, and

without attempting to confer with the United States, the Legislators moved to quash the

subpoenas in their entirety. See Mot. to Quash (ECF. No. 251).


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The Legislators’ motion should be denied. First, the documents sought are highly

relevant to claims under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The Legislators

fail to address the Section 2 standard and the discovery deficiencies revealed by the production

of documents withheld during Texas v. Holder, No. 1:12-cv-128 (D.D.C.). Second, many of the

documents the subpoenas seek lie outside any possible scope of a state legislative privilege and

cannot be quashed in their entirety based on any such privilege. Third, this Court has already

concluded that Defendants’ assertion of state legislative privilege over analogous documents

sought through party discovery must yield; the same analysis applies here. Therefore, the

Legislators’ motion to quash should be denied and the Legislators should be ordered to comply

with the United States’ subpoenas, subject to the protective procedures established in this Court’s

Order on the United States’ Motion to Compel. See Veasey v. Perry, No. 2:13-cv-193, 2014 WL

1340077, at *3-4 (S.D. Tex. Apr. 3, 2014) (ECF No. 226).

I. LEGAL STANDARD

A party may serve a subpoena under Rule 45 to obtain “documents, electronically stored

information, or tangible things.” Fed. R. Civ. P. 45(a)(1)(C). The recipient of the subpoena may

move to quash or modify a subpoena only for one of four specific reasons, namely if the

subpoena “(1) fails to allow a reasonable time for compliance; (2) requires a person who is not a

party to travel more than 100 miles from where the person resides; (3) requires disclosure of

privileged or protected matter; or (4) subjects a person to undue burden.” Texas Keystone, Inc. v.

Prime Nat. Res., Inc., 694 F.3d 548, 554 (5th Cir. 2012). “The individual seeking to quash or

modify must meet ‘the heavy burden of establishing that compliance with the subpoena would be

unreasonable and oppressive.’” Hussey v. State Farm Lloyds Ins. Co., 216 F.R.D. 591, 596 (E.D.

Tex. 2003) (quoting Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998)).


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“Among the factors that the court may consider in determining whether there is an undue burden

are ‘relevance, the need of the party for the documents, the breadth of the document request, the

time period covered by it, the particularity with which the documents are described and the

burden imposed.’” Id. (quoting Linder v. Dep’t of Defense, 133 F.3d 17, 24 (D.C. Cir.1998)).

“When a subpoena is issued as a discovery device, relevance for purposes of the undue burden

test is measured according to the standard of Rule 26(b)(1).” Williams, 178 F.R.D. at 110. “[A]

court should give a wider berth of discovery to subpoenas that concern substantial national,

rather than merely parochial, interests.” In re Subpoenas to Plains All Am. Pipeline, L.P., No. H-

13-2975, 2014 WL 204447, at *3 (S.D. Tex. Jan. 17, 2014). Resolution of a motion to quash is

subject to a district court’s discretion. See Texas Keystone, Inc., 694 F.3d at 554.

II. THE DOCUMENTS UNDER SUBPOENA ARE HIGHLY RELEVANT TO CLAIMS UNDER SECTION 2 OF THE VOTING RIGHTS ACT.

As the United States explained in its motion to compel legislative documents,

“[d]etermining whether invidious discriminatory purpose was a motivating factor [in a decision]

demands a sensitive inquiry into such circumstantial and direct evidence as may be available.”

Mot. to Compel at 3 (ECF No. 162) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 266 (1977)). “Contemporary statements by members of the

decisionmaking body” can be a “highly relevant” form of such evidence. Arlington Heights, 429

U.S. at 266. More specifically, the Section 2 results test requires “a searching practical

evaluation of the past and present reality and . . . a functional view of the political process.”

Thornburg v. Gingles, 478 U.S. 30, 43, 45 (1986) (citations and internal quotation marks

omitted). The Senate Report to the 1982 amendments of the Voting Rights Act identifies a

number of factors that may inform a court’s evaluation of whether a challenged practice or


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procedure denies minority voters the same opportunity to participate in the political process as

other citizens, including “the extent of any history of official discrimination in the state or

political subdivision that touched the right of the members of the minority group to register, to

vote, or otherwise to participate in the democratic process” and “whether political campaigns

have been characterized by overt or subtle racial appeals.” Id. at 36-37 (quoting S. Rep. No. 97-

417, at 28-29 (1982)). The subpoenas in this case are squarely focused on evidence that is

relevant under those two rubrics. See, e.g., Subpoena of Representative Patricia Harless (Ex. 1).

This Court has already found that the topics set out in the subpoenas, which mirror the

United States’ First Set of Requests for Production, are “highly relevant” to the United States’

discriminatory intent and discriminatory results claims. Veasey, 2014 WL 1340077, at *2.

Although the Legislators took issue with six of the requests for documents sought by the

subpoenas, see Mot. to Quash at 6-7, they did not contest the relevance of the remaining

requests. See Harless Subpoena Ex. A ¶¶ 1-14, 19-20. These requests include the consideration

of photographic voter identification proposals, communications concerning such proposals, and

both pre-enactment and post-enactment analyses of the impact of photographic voter

identification laws. See id. ¶¶ 1-11. Moreover, the topics challenged by the Legislators address

whether political campaigns have been characterized by overt or subtle racial appeals, one of the

Section 2 Senate Factors, see id. ¶¶ 15-16, and Defendants’ failure to amend SB 14 following the

Texas v. Holder court’s findings of avoidable harm to minority voters, which is circumstantial

evidence of the intent underlying SB 14, see id. ¶¶ 17-18, 21-22. Thus, these subpoena topics

relate directly to the claims before this Court and should be permitted, particularly under the


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appropriately more expansive standards applied in a case of such importance. See In re

Subpoenas, 2014 WL 204447, at *3.1

The documents already produced by Defendants per this Court’s April 3 Order fail to

comprise the universe of relevant documents. That set of documents contains almost no

legislative email, notwithstanding painstaking negotiations that occurred during Texas v. Holder

concerning email search terms. Those few emails produced suggest that legislators engaged in a

substantial amount of email communication concerning SB 14 and photographic voter

identification laws, extensively using private email addresses. See also, e.g., Deposition of

Colby Beuck, May 14, 2012, at 38:2-8 (Ex. 2) (describing Representative Harless’s use of a

private email account to conduct official business); Deposition of Janice McCoy, May 12, 2012,

at 34:18-22 (Ex. 3) (describing Senator Fraser’s use of a private email account to conduct

official business). Thus, it is highly unlikely that the United States has all of the documents

responsive to the requests for production made during Texas v. Holder—the declaratory

judgment action under Section 5 of the Voting Rights Act concerning SB 14. Mot. to Quash at

4-6.

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1 Although the Legislators state that the subpoenas will impose an undue burden, they do not address any of the factors applied within the Fifth Circuit beyond simple relevance. See Mot. to Quash at 10; see also Hussey, 216 F.R.D. at 596. Even assuming that the Legislators intended the arguments made concerning a state legislative privilege to apply to their burden argument as well, the Legislators have failed to challenge the time period covered by the subpoena and the actual burden imposed by compliance. A good faith search of legislators’ official email and the private email accounts they use to conduct state business would require little more than searches using critical keywords such as “SB 14,” “voter ID,” and “Hispanic voters,” among others. To the extent that the Legislators wish the United States to provide such keywords, the United States will promptly do so upon receipt of a request naming the email systems used by the Legislators. The locations of other electronic and paper documents are likely known to the legislators and their staff.

Moreover, the Legislators fail to take into account the greater universe of relevant evidence

2 Without revealing the contents of the documents produced under seal, the vast majority are publicly available materials over which Defendants appear to have asserted a state legislative privilege by mere virtue of them having been maintained in a legislator’s office.


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under Section 2 of the Voting Rights Act. Just as Defendants have sought further discovery in

this litigation, the United States too should not be limited to the discovery taken during Texas v.

Holder.

III. THE LEGISLATORS CANNOT QUASH THE SUBPOENAS IN THEIR ENTIRETY BASED ON A LEGISLATIVE PRIVILEGE.

A substantial portion of the documents sought by the United States’ subpoenas are

outside the scope of any possible state legislative privilege. Therefore, the subpoenas cannot be

quashed in their entirety based on the incorrect assertion that compliance would require

disclosure of privileged or protected matter. Mot. to Quash at 6-10; see also Fed. R. Civ. P.

45(d)(3)(A)(iv). Campaign communications, Harless Subpoena Ex. A ¶¶ 15-16, are “outside the

chamber” and therefore outside any protection necessary to “‘preserve the integrity of the

legislative process.’” Hutchinson v. Proxmire, 443 U.S. 111, 127 (1979) (quoting United States

v. Brewster, 408 U.S. 501, 517 (1972)); see also FEC v. Wright, 777 F. Supp. 525, 530 (N.D.

Tex. 1991) (concluding that testimony about the use of campaign funds is not protected by the

Speech or Debate Clause of the United States Constitution). Similarly, communications with

“lobbyists, groups, associations, organizations, or members of the public” concerning voter

identification, Harless Subpoena Ex. A ¶¶ 2, 7, 13-15, are not protected by any legislative

privilege. See, e.g., Baldus v. Brennan, No. 11-cv-562, 2011 WL 6122542, at *2 (E.D. Wis.

Dec. 8, 2011) (three-judge court).

As to those documents that potentially implicate state legislative privilege, Defendants’

blanket assertion of privilege violates Rule 26 and thus triggers no protection, see Turner v.

Grumpy, LLC, No. 2:08-cv-49, 2009 WL 259927, at *1 (N.D. Miss. Feb. 2, 2009), particularly

given the limited scope and qualified nature of the privilege, see Veasey, 2014 WL 1340077, at


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*1. Thus, to the extent that the Legislators maintain that some responsive documents are

protected by a state legislative privilege, the legislators should have collected and logged those

documents on a privilege log. See, e.g., Turner, 2009 WL 259927, at *1; Estate of Manship v.

United States, 236 F.R.D. 291, 296 (M.D. La. 2006), vacated in part on other grounds, 237

F.R.D. 141 (M.D. La. 2006).3

IV. THIS COURT’S APRIL 3 DECISION REQUIRES LEGISLATORS TO PRODUCE DOCUMENTS PROTECTED BY A LEGSISLATIVE PRIVILEGE UNDER SEAL.

They have failed to do so and therefore cannot substantiate any

legislative privilege claim at this time.

This Court has found “that the overall balance of factors” relevant to a state legislative

privilege “weights in favor of disclosure on a confidential basis” in this case. Veasey v. Perry,

2014 WL 1340077, at *3. Under the five-factor test applied by this Court, there is no analytical

distinction between a Rule 34 request for production served on the State of Texas and a Rule 45

subpoena served on Texas legislators. See id. at *2. And while the Legislators strain to argue,

under the Court’s standard, that the state legislative privilege is not overcome, see Mot. to Quash

at 7-10, those efforts fail – a failure implicitly acknowledged by Defendants’ request that this

Court simply reconsider its prior analysis. See id. at 11. This Court should adhere to the

reasoned analysis of its prior decision and should therefore deny the Legislators’ motion.

As this Court properly recognized, any state legislative privilege is qualified. See Veasey,

2014 WL 1340077, at *2.

3 For similar reasons, there is no need to modify the subpoenas in light of potential attorney-client privilege claims. See Mot. to Quash at 10. The mere fact that communications occurred between legislators and the Office of the Attorney General does not categorically place those communications under the absolute protection of the attorney-client privilege. See, e.g., In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir. 1975). If the Legislators believe any communications responsive to the subpoenas are privileged, they must object and issue privilege logs to substantiate their claim.


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As a qualified privilege, there is an established framework of five factors that courts have weighed in determining whether the legislative documents must be disclosed: (1) the relevance of the evidence sought to be protected; (2) the availability of other evidence; (3) the seriousness of the litigation and the issues involved; (4) the role of the government in the litigation; and (5) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.

Id. (citing Perez v. Perry, No. 5:11-cv-1303, 2014 WL 106927, at *2 (W.D. Tex. Jan. 8, 2014)

(three-judge court)). Under this rubric, the analysis performed by this Court in resolving the

United States’ motion to compel applies fully here.

The Legislators’ attempt to overcome this Court’s prior analysis is unavailing. Under the

first factor, as set out above, the subjects of the subpoenas are relevant, as they address the

legislative process that culminated in SB 14, the discriminatory results of that process, the

motivations underlying that process, and the factors considered under the Section 2 totality of the

circumstances analysis. See supra Part II. Moreover, under the second factor, there is no

alternative to the materials sought from the Legislators, certainly not in the limited set of

documents that the State of Texas collected and already produced in Texas v. Holder (and thus

lie outside the scope of the subpoenas). See supra Part II.4

4 Interested third-parties with intensively relevant information at the heart of significant litigation may not withhold that information and simply declare that the United States “should be able to prove its case” without the information being withheld. See Mot. to Quash at 8. The Legislators here do not dispute that there is no alternative source for the documents that Legislators hold. Rather, they make the unsupportable claim that the United States should have to prove its case without access to potentially probative evidence. The Federal Rules of Civil Procedure govern the scope of discovery, and it is both inappropriate and self-serving for individuals supporting the Defendants to be permitted to decide that the United States has received sufficient discovery and is entitled to no more.

The Legislators do not contest that

the “third[] and fourth factors weigh strongly in favor of disclosure.” Veasey, 2014 WL

1340077, at *2. Finally, this Court should reject the Legislators’ unsupported assertions that,


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under the fifth factor, compliance with the subpoenas would trigger greater future timidity than

the disclosures under seal already ordered by the Court. The relevant consideration is not

whether legislators might wish to avoid the burdens associated with ordinary discovery or

whether they might maintain privacy interests similar to an ordinary litigant, see Mot. to Quash

at 8-9; rather, it is whether the legislative process might be harmed because legislators and staff

would be aware that their communications might be disclosed in litigation. See, e.g., Favors v.

Cuomo, 285 F.R.D. 187, 215 (E.D.N.Y. 2012) (addressing whether disclosure “would not serve

to inhibit legislative deliberations in the future”). This Court has rejected blanket protections

from discovery based on the fifth factor alone, and the Legislators have provided no valid reason

to deviate from that conclusion.

Because the balancing test remains unchanged, this Court should deny the Legislators’

motion to quash and order immediate and overdue compliance with the United States’

subpoenas.


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V. CONCLUSION

For the reasons set out above, this Court should deny the Legislators’ motion to quash

subpoenas. Pursuant to Local Rule 7.4(D), a proposed order denying the motion is attached.

Date: April 29, 2014

Respectfully submitted,

KENNETH MAGIDSON JOCELYN SAMUELS United States Attorney Acting Assistant Attorney General Southern District of Texas Civil Rights Division

/s/ Daniel J. Freeman T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO ANNA M. BALDWIN DANIEL J. FREEMAN Attorneys, Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530


CERTIFICATE OF CONFERRAL

Due to the Legislators’ failure to meet and confer prior to filing the instant motion, I met and conferred with counsel for the Legislators on April 29, 2014 in an effort to narrow the instant dispute. The Legislators maintain the position that they will not produce any documents in response to the subpoenas, which necessitates resolution of the motion by the Court.

/s/ Daniel J. Freeman Daniel J. Freeman

Voting Section Civil Rights Division U.S. Department of Justice [email protected]


CERTIFICATE OF SERVICE

I hereby certify that on April 29, 2014, I served a true and correct copy of the foregoing via

the Court’s ECF system on the following counsel of record:

John B. Scott John Reed Clay, Jr. Gregory David Whitley Jonathan F. Mitchell Sean Flammer Stephen Ronald Keister Arthur D’Andrea Jennifer Marie Roscetii Office of the Texas Attorney General [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Ben Addison Donnell Donnell Abernethy & Kieschnick [email protected] Counsel for Defendants

Chad W. Dunn Kembel Scott Brazil Brazil & Dunn [email protected] [email protected] J. Gerald Hebert Emma Simson Campaign Legal Center [email protected] [email protected] Neil G. Baron Law Offices of Neil G. Baron [email protected] Armand Derfner Derfner, Altman, & Wilborn [email protected] Luiz Roberto Vera, Jr. [email protected] Counsel for Veasey Plaintiffs


Christina Swarns Ryan P. Haygood Natasha M. Korgaonkar Leah C. Aden Deuel Ross NAACP Legal Defense and Educational Fund, Inc. [email protected] [email protected] [email protected] [email protected] [email protected] Danielle Conley Jonathan Paikin Kelly P. Dunbar Sonya L. Lebsack

Gerald J. Sinzdak Lynn Eisenberg M. Hasan Ali Richard F. Shordt WilmerHale LLP [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Texas League of Young Voters Plaintiff-Intervenors

Ezra D. Rosenberg Amy L. Rudd Dechert LLP [email protected] [email protected] Wendy Weiser Jennifer Clark Myrna Pérez Vishal Agraharkar Brennan Center for Justice at NYU School of Law [email protected] [email protected] [email protected] [email protected] Mark A. Posner Sonia Kaur Gill Erandi Zamora Lawyers’ Committee for Civil Rights [email protected] [email protected] [email protected] Counsel for Texas State Conference of NAACP Branches Plaintiffs

Jose Garza Marinda van Dalen Robert W. Doggett Peter McGraw Texas Rio Grande Legal Aid, Inc. [email protected] [email protected] [email protected] [email protected] Counsel for Ortiz Plaintiffs


Rolando L. Rios Law Offices of Rolando L. Rios [email protected] Preston Edward Henrichson Law Offices of Preston Henrichson [email protected] Counsel for Texas Association of Hispanic County Judges and County Commissioners Plaintiff-Intervenors

/s/ Daniel J. Freeman Daniel J. Freeman Voting Section Civil Rights Division U.S. Department of Justice [email protected]


IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION MARC VEASEY, et al., Plaintiffs, v. RICK PERRY, et al., Defendants.


UNITED STATES OF AMERICA, Plaintiff, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Plaintiff-Intervenors, TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, et al., Plaintiff-Intervenors, v. STATE OF TEXAS, et al., Defendants.


Case 2:13-cv-00193 Document 254-1 Filed in TXSD on 04/29/14 Page 1 of 2

TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Plaintiffs, v. NANDITA BERRY, et al., Defendants.


BELINDA ORTIZ, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants


[Proposed] ORDER

Having reviewed Texas Legislators’ Motion to Quash (ECF No. 251) and the United

States’ Opposition thereto (ECF No. ___), the Legislators’ motion is DENIED. Within seven

days of the entry of this order, the Legislators shall produce all documents responsive to the

United States’ subpoenas, unless subject to an additional valid claims of privilege. Any

document over which the Legislators assert a state legislative privilege shall be shall be produced

under seal per the procedures set out in this Court’s Order of April 3, 2014 (ECF No. 226).

SO ORDERED.

Date:

________________________________ NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE


EXHIBIT 1


AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

))))))

Plaintiffv. Civil Action No.

(If the action is pending in another district, state where: Defendant __________ District of __________ )

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTSOR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION

To:

� Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of thematerial:

Place: Date and Time:

� Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting partymay inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Place: Date and Time:

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, areattached.

Date:

CLERK OF COURTOR

Signature of Clerk or Deputy Clerk Attorney’s signature

The name, address, e-mail, and telephone number of the attorney representing (name of party)

, who issues or requests this subpoena, are:

Southern District of Texas

United States of America

State of Texas2:13-cv-263

Rep. Patricia Harless, c/o Office of the Attorney General of Texas, 300 W 15th Street, Austin, TX 78701Tel: 512-463-2100

✔

All documents, electronically stored information and other materials requested in the attached Exhibit A.

U.S. Attorney's Office Attn: John A. Smith III1000 Louisiana, Ste. 2300 Houston, TX 77002 04/14/2014 5:00 pm

N/A /s/ Elizabeth Westfall

United States of America

Elizabeth Westfall, Department of Justice, Civil Rights Division, Voting Section, 1800 G St. NW, Washington, DC20006 Tel: 202-305-7766 Email: [email protected]


AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)

This subpoena for (name of individual and title, if any)

was received by me on (date) .

� I served the subpoena by delivering a copy to the named person as follows:

on (date) ; or

� I returned the subpoena unexecuted because:

.

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness fees for one day’s attendance, and the mileage allowed by law, in the amount of

$ .

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0.00

2:13-cv-263


AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)

(c) Protecting a Person Subject to a Subpoena. (1) Avoiding Undue Burden or Expense; Sanctions. A party orattorney responsible for issuing and serving a subpoena must takereasonable steps to avoid imposing undue burden or expense on aperson subject to the subpoena. The issuing court must enforce thisduty and impose an appropriate sanction — which may include lostearnings and reasonable attorney’s fees — on a party or attorneywho fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to producedocuments, electronically stored information, or tangible things, orto permit the inspection of premises, need not appear in person at theplace of production or inspection unless also commanded to appearfor a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents ortangible things or to permit inspection may serve on the party orattorney designated in the subpoena a written objection toinspecting, copying, testing or sampling any or all of the materials orto inspecting the premises — or to producing electronically storedinformation in the form or forms requested. The objection must beserved before the earlier of the time specified for compliance or 14days after the subpoena is served. If an objection is made, thefollowing rules apply: (i) At any time, on notice to the commanded person, the servingparty may move the issuing court for an order compelling productionor inspection. (ii) These acts may be required only as directed in the order, andthe order must protect a person who is neither a party nor a party’sofficer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court mustquash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party’s officerto travel more than 100 miles from where that person resides, isemployed, or regularly transacts business in person — except that,subject to Rule 45(c)(3)(B)(iii), the person may be commanded toattend a trial by traveling from any such place within the state wherethe trial is held; (iii) requires disclosure of privileged or other protected matter, ifno exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected bya subpoena, the issuing court may, on motion, quash or modify thesubpoena if it requires: (i) disclosing a trade secret or other confidential research,development, or commercial information; (ii) disclosing an unretained expert’s opinion or information thatdoes not describe specific occurrences in dispute and results fromthe expert’s study that was not requested by a party; or (iii) a person who is neither a party nor a party’s officer to incursubstantial expense to travel more than 100 miles to attend trial. (C) Specifying Conditions as an Alternative. In the circumstancesdescribed in Rule 45(c)(3)(B), the court may, instead of quashing ormodifying a subpoena, order appearance or production underspecified conditions if the serving party: (i) shows a substantial need for the testimony or material thatcannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonablycompensated.

(d) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information.These procedures apply to producing documents or electronicallystored information: (A) Documents. A person responding to a subpoena to producedocuments must produce them as they are kept in the ordinarycourse of business or must organize and label them to correspond tothe categories in the demand. (B) Form for Producing Electronically Stored Information NotSpecified. If a subpoena does not specify a form for producingelectronically stored information, the person responding mustproduce it in a form or forms in which it is ordinarily maintained orin a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only OneForm. The person responding need not produce the sameelectronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information. The personresponding need not provide discovery of electronically storedinformation from sources that the person identifies as not reasonablyaccessible because of undue burden or cost. On motion to compeldiscovery or for a protective order, the person responding must showthat the information is not reasonably accessible because of undueburden or cost. If that showing is made, the court may nonethelessorder discovery from such sources if the requesting party showsgood cause, considering the limitations of Rule 26(b)(2)(C). Thecourt may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaedinformation under a claim that it is privileged or subject toprotection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents,communications, or tangible things in a manner that, withoutrevealing information itself privileged or protected, will enable theparties to assess the claim.

(B) Information Produced. If information produced in response to asubpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify anyparty that received the information of the claim and the basis for it.After being notified, a party must promptly return, sequester, ordestroy the specified information and any copies it has; must not useor disclose the information until the claim is resolved; must takereasonable steps to retrieve the information if the party disclosed itbefore being notified; and may promptly present the information tothe court under seal for a determination of the claim. The personwho produced the information must preserve the information untilthe claim is resolved.

(e) Contempt. The issuing court may hold in contempt a personwho, having been served, fails without adequate excuse to obey thesubpoena. A nonparty’s failure to obey must be excused if thesubpoena purports to require the nonparty to attend or produce at aplace outside the limits of Rule 45(c)(3)(A)(ii).


EXHIBIT A

INSTRUCTIONS AND DEFINITIONS

1. “Legislator” means a current or former member of the Texas House of

Representatives or the Texas State Senate, including such member’s employees, staff, interns,

representatives, designees, agents, or other persons acting or purporting to act on the member’s

behalf or on behalf of any committee on which the member serves.

2. “Texas Legislature” and “Legislature” mean the Texas House of Representatives

and the Texas State Senate.

3. The “Secretary of State” means Defendant Texas Secretary of State Nandita

Berry, her predecessors as Secretary of State, and any of the Secretary of State’s past and present

agents, advisors, employees, representatives, attorneys, consultants, contractors, or other persons

or entities acting on behalf of the Secretary of State or the office of the Secretary of State or

subject to the control of that office.

4. The “Department of Public Safety” means the Texas Department of Public Safety

(“DPS”) and any of its past and present agents, advisors, employees, representatives, attorneys,

consultants, contractors, or other persons or entities acting on behalf of the Department of Public

Safety or subject to its control.

5. The term “person” includes, whenever appropriate, not only a natural person, but

also a corporation, partnership, unincorporated association, joint venture, or other association of

persons, and also a governmental agency, office, administration, board, or other body.

6. “SB 14” means 2011 Texas General Laws Chapter 123, which amends the Texas

Transportation Code relating to the issuance of election identification certificates (“EIC”), and

which amends the Texas Election Code relating to procedures for implementing the photographic


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identification requirements for voting in the State of Texas. This document refers to “SB 14”

and “the Texas Election Code as amended by SB 14” interchangeably.

7. “Document” is defined to be synonymous in meaning and scope as the term

“document” is used under Federal Rule of Civil Procedure 34.

8. In responding to this subpoena, produce all responsive documents and

electronically stored information in your possession, custody, or control, including but not

limited to documents or electronically stored information that are in the custody of one of your

Legislative offices, the Office of the Texas Attorney General, the Texas Legislative Council, or

the Texas State Library and Archives Commission. Sources of responsive documents include

both email sent or received through any of your official State email accounts, as well as email

messages sent or received through any of your private, non-State-issued email accounts.

9. If any document requested was, but is no longer, either in the your possession,

custody, or control, or in existence, state whether it: (a) is missing or lost; (b) has been destroyed;

(c) has been transferred, voluntarily or involuntarily, to others; or (d) has been otherwise

disposed of and explain the circumstances surrounding the disposition, and identify the names of

those persons with knowledge of such circumstances.

10. In construing these requests, apply the broadest construction, so as to produce the

most comprehensive response. Construe the terms “and” and “or” either disjunctively or

conjunctively as necessary to bring within the scope of the request all responses that might

otherwise be construed to be outside that scope. Words used in the masculine gender include the

feminine, and words used in the singular include the plural.


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11. If any part of the requested information is stored in an electronic form, that

portion of it shall be provided in the electronic form consistent with the Agreement Concerning

Production Format (ECF No. 61-6), attached hereto.

12. Those portions of documents available, either in whole or in part, only in paper or

hardcopy should, if possible, be scanned into electronic format and produced consistent with the

Agreement Concerning Production Format (ECF No. 61-6), attached hereto.

13. These document requests apply to the period from January 1, 2007, through the

present unless otherwise limited or expanded by a particular request.

DOCUMENT REQUESTS

1. With regard to any consideration by the Texas Legislature, prior to and including

the 83rd session, of a requirement that voters present a form of identification in addition to or

instead of their voter registration certificate, all documents relating to:

a. the origination(s) or source(s), whether private or public, of all such proposals;

b. the drafting, development, and introduction of all such proposals;

c. all amendments, whether partial or total, to each such proposal and the vote on

each;

d. all analyses of the effect, of any kind, that could result from the

implementation of all such proposals that were conducted for, presented to, or

considered by the respective session of the Legislature; and

e. the consideration of each proposal by each chamber of the Legislature,

including a description of the final action in each chamber with the final vote or

other determinative outcome.


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2. All documents related to communications between, among, or with you, the office

of the Governor, the office of the Lieutenant Governor, the office of the Secretary of State, the

Department of Public Safety, the office of the Texas Attorney General, any Legislator or

Legislators, their staff or agents, lobbyists, groups, associations, organizations, or members of

the public concerning the State of Texas’s consideration of a requirement that voters present

photographic identification to cast a ballot, including the introduction, enactment, and

implementation of SB 14, from December 1, 2010, to the present.

3. All documents related to any calculations, reports, audits, estimates, projections,

or other analyses related to the effect that SB 14 imposes, or that SB 14 was projected to impose,

upon minority voters or on voters who are members of a language minority group, from

December 1, 2010, through May 27, 2011.

4. All documents related to any calculations, reports, estimates, projections, or other

analyses related to the impact of SB 14 on voter turnout or voter registration.

5. All documents related to any calculations, reports, estimates, or other analyses

related to the impact of SB 14 on voter turnout or voter registration in any federal, state, or local

election held in Texas from June 25, 2013, to the present.


analyses related to the impact that SB 14 has, or that SB 14 was projected to have, on rates, use,

and acceptance of provisional ballots.

7. All documents related to communications between, among, or with you, the office

of the Governor, the office of the Lieutenant Governor, the office of the Secretary of State, the

Department of Public Safety, the office of the Texas Attorney General, any Legislator or

Legislators, their staff or agents, lobbyists, groups, associations, organizations, or members of


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the public concerning the State of Texas’s consideration of a requirement that voters present

identification to cast a ballot, from January 1, 2005, through November 30, 2010.

8. All documents related to any calculations, reports, audits, estimates, projections,

or other analyses related to the effect that voter identification requirements impose upon minority

voters or on voters who are members of a language minority group, from January 1, 2005,

through November 30, 2010.


analyses related to the impact of voter identification requirements on voter turnout or voter

registration, from January 1, 2005, through November 30, 2010.


analyses related to the impact that voter identification requirements were projected to have on

rates, use, and acceptance of provisional ballots, from January 1, 2005, through November 30,

2010.


analyses related to the impact that voter identification requirements were projected to have on

rates, use, and acceptance of provisional ballots, from January 1, 2005, through November 30,

2010.

12. All documents related to any administrative regulations drafted, proposed, or

finalized pertaining to SB 14.

13. All documents related to the consideration of Senate Bill 362, 81st Leg. (Tex.

2009) (“SB 362”) or other voter identification proposals during the 81st Legislature, including

documents related to communications between or among Legislators, as well as between

Legislators and their staff, lobbyists, groups, organizations or members of the public, concerning


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the introduction, drafting, and consideration of SB 362, as well as all documents related to SB

362 presented to, produced by, transmitted to, or relied upon by the State of Texas, including but

not limited to the Governor, the Lieutenant Governor, the Secretary of State, and the Texas

Attorney General.

14. All documents related to the consideration of House Bill 218, 80st Leg. (Tex.

2007) (“HB 218”) or other voter identification proposals during the 80th Legislature, including

documents related to communications between or among Legislators, as well as between

Legislators and their staff, lobbyists, groups, organizations, or members of the public, concerning

the introduction, drafting, and consideration of HB 218, as well as all documents related to HB

218 presented to, produced by, transmitted to, or relied upon by the State of Texas, including but

not limited to the Governor, the Lieutenant Governor, the Secretary of State, and the Texas

Attorney General.

15. All documents related to campaign communications, including but not limited to

mailings, ads, websites, flyers, and correspondence, related to voter identification requirements

or SB 14, made by or on behalf of any candidate for office in the State of Texas from January 1,

2005 to the present.

16. All documents related to campaign communications, including but not limited to

mailings, ads, websites, flyers, and correspondence, related to immigration made by or on behalf

of any candidate for office in the State of Texas from January 1, 2005, to the present.

17. All documents related to any and all efforts or consideration by the Legislature to

amend SB 14 or to enact additional legislation related to the issuance of election identification

certificates.


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18. All documents related to any efforts or consideration by the Legislature to review

or analyze the administration of the November 2012 general election, including any issues

related to election integrity.

19. All documents related to correspondence, including but not limited to

correspondence with constituents, other members of the public, lobbyists, groups, and

organizations, on the subject of voter identification requirements; Senate Bill 14, 82nd Leg. (Tex.

2011); Senate Bill 362, 81st Leg. (Tex. 2009); House Bill 218, 80st Leg. (Tex. 2007); or House

Bill 1706, 79th Leg. (Tex. 2005).

20. All documents containing or related to public statements made by you, or any

Legislator who sponsored or supported SB 14, on the subject of voter identification

requirements; Senate Bill 14, 82nd Leg. (Tex. 2011); Senate Bill 362, 81st Leg. (Tex. 2009);

House Bill 218, 80st Leg. (Tex. 2007); or House Bill 1706, 79th Leg. (Tex. 2005).

21. All documents related to any proposal to amend or modify SB 14’s requirements,

or its implementation plans, so as to respond to the findings of the United States District Court

for the District of Columbia in Texas v. Holder, 888 F. Supp. 2d 113 (D.D.C. 2012) (three-judge

court), vacated, 133 S. Ct. 2886 (2013).

22. All documents related to any proposal to amend or modify SB 14’s requirements,

or its implementation plans, after May 27, 2011.


IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

MARC VEASEY, et al.,

Plaintiffs,

v.

RICK PERRY, et al.,

Defendants.


UNITED STATES OF AMERICA,

Plaintiff,

TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al.,

Plaintiff-Intervenors,

TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, et al.,

Movant-Intervenors,

v.

STATE OF TEXAS, et al.,

Defendants,

TRUE THE VOTE,

Movant-Intervenor.


Case 2:13-cv-00193 Document 61-6 Filed in TXSD on 11/04/13 Page 2 of 18Case 2:13-cv-00193 Document 254-2 Filed in TXSD on 04/29/14 Page 12 of 28

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TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al.,

Plaintiffs,

v.

JOHN STEEN, et al.,

Defendants.


AGREEMENT CONCERNING PRODUCTION FORMAT

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, the parties agree to

adhere to the following methods of production of documents and electronically stored

information (“ESI”):

1. With the exception of the items specified in paragraphs 10-18, below, the parties agree

that documents and ESI that can be accurately represented in black and white shall be scanned or

converted to single page Tagged Image File Format (“TIFF” or “.tiff format”) files, using CCITT

Group IV compression. All images shall be scanned or converted at 300 d.p.i. and reflect,

without visual degradation, the full and complete information contained on the original

document. Photographs, color brochures, or other like documents that cannot be accurately

represented in black and white or documents that are primarily in color shall be scanned or

converted to JPEG files using a high quality setting. The parties will honor reasonable requests

for either the production of the original document for inspection and copying or production of

any color image of the document, thing, or ESI. All images shall be saved in a directory named

IMAGES. Spreadsheets (e.g., Excel, Quattropro, or .csv) and presentations (e.g., Powerpoint)

Provisions for the Production of Documents and ESI


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shall be produced in native form. Native files shall be saved in a directory named NATIVE with

the proper Windows-associated extension.

2. The parties agree to produce all imaged documents with a legible, unique page identifier

(“Bates Number”) electronically “burned” onto the image in the lower right hand corner or—if

placement in the lower right hand corner would obliterate, conceal, or interfere with any

information from the source document—another blank portion of the TIFF image. The Bates

numbering convention shall be in the format “XXX########” where “XXX” represents the

short character abbreviation for the producing party and “########” represents the eight-digit

sequential number of the page being produced by that party. Documents produced by the parties

shall be abbreviated as follows: Veasey Plaintiffs = VES, United States of America = USA,

Texas League of Young Voters Education Fund = LYV, Texas State Conference of NAACP

Branches = TSC, and Defendants = TEX. For example, the first Bates labeled document

produced by the United States should be labeled “USA00000001.” Images shall be named as the

[Bates Number].tif or [Bates Number].jpg. Native files shall be named as [Bates Number].ext,

where “ext” denotes the native file extension.

3. The parties agree to produce documents on CD-ROM, DVD, or external hard drive (the

“Production Media”), depending on the volume of the production. Each piece of Production

Media shall identify a production number corresponding to the production “wave” and a number

of the volume of material in the wave. For example, if the first production wave by a party

comprises document images on three hard drives, the party shall label each hard drive in the

following manner in numeric sequence: “001.001”; “001.002”; “001.003.” If the second

production comprises three DVDs, the party shall label each DVD in the following manner in

numeric sequence: “002.001”; 002.002”; “002.003.” Additional information that shall be


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identified on the physical Production Media includes: (1) the case number, (2) the producing

party’s name, and (3) the production date. Where practicable, the type of materials on the media

(e.g., “Documents”, “OCR Text”, etc.) and the Bates Number range of the materials on the

Production Media shall also be denoted thereon; where such material cannot reasonably be listed

on the Production Media, they shall be provided in an accompanying letter.

4. The parties agree not to produce documents or ESI using FTP, SFTP, or other hosted

locations without notifying all parties. All such productions must include a single archive file

per production wave (e.g., .zip, .rar, or .cab), labeling of such archives in numerical sequence in

accordance with paragraph 4, supra, and immediate notice to all parties after a new archive has

been uploaded to a hosted location. All requirements of this agreement shall apply to any

production using FTP, SFTP, or other hosted locations.

5. The parties shall produce an “image cross reference file” in Concordance Opticon .log

format, to accompany the produced images. The image cross reference file shall provide the

Bates Numbers, relative path to images, and document break indicators. The image cross

reference file shall be provided in a directory named DATA.

6. The parties shall produce a “load file” containing the fields specified in Attachment A.

The load file shall be provided in a directory named DATA, in a Concordance .DAT file format

with standard delimiters. The parties agree not to include OCR/extracted text in the .DAT file.

7. For documents that exist natively in electronic format and that have not been redacted,

the parties shall produce extracted text files reflecting the full text that was electronically

extracted from the original native file. For all scanned hard-copy documents, any electronic

documents that require redaction prior to production and native files for which native text is not

available (e.g., graphic files and some PDFs), the parties will produce corresponding Optical


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Character Recognition (“OCR”) text files. The OCR and extracted text files shall be produced in

ASCII text format and shall be labeled and produced on Production Media in accordance with

the provisions of paragraph 3, above. These text files will be named with the unique Bates

Number of the first page of the corresponding document followed by the extension “.txt.” The

OCR and extracted text files shall be produced in a manner suitable for importing the

information into Concordance. OCR and extracted text files shall be saved in a directory named

TEXT. All documents should have an accompanying text file, even if that file is of zero size.

8. Irrespective of which party issued the requests for production of documents, tangible

things, and ESI, the producing party shall serve a copy of responsive production to each of the

other parties.

Format for the Production of ESI

9. E-mail will be produced as image files with related searchable text and available

metadata as described in Attachment A.

10. All spreadsheets, e.g., Excel or Quattropro, should be produced only in native format

with related searchable text and available metadata as described in Attachment A. Spreadsheets

should not be imaged, but a placeholder image must be included to represent the spreadsheet.

11. All presentations, e.g., Powerpoint, should be produced only in native format with related

searchable text and available metadata as described in Attachment A. Presentations should not

be imaged, but a placeholder image must be included to represent the presentation.

12. The parties will meet and confer regarding the production of video, audio, and any file

stored in a proprietary formats (i.e., non-Microsoft or Corel Suite compatible files). Any such

conference shall be held within fourteen (14) days (unless the parties agree to a later date) of

identification of such materials in initial disclosures, a direct request for the production of such


6

materials, or a determination by a producing party that such materials are responsive to a broader

request, and any such conference shall include the custodians of the materials, as well as

technicians with sufficient knowledge to explain the content and format of the material at issue.

13. The parties will meet and confer regarding the production of records or data from systems

of record, databases, or federal agency comparisons in an agreed upon format. Any such

conference shall be held within fourteen (14) days (unless the parties agree to a later date) of

identification of databases in initial disclosures, a direct request for the production of databases,

or a determination by a producing party that databases are responsive to a broader request, and

any such conference shall include the custodians of the databases, as well as technicians with

sufficient knowledge to explain the content and format of the databases.

14. Other electronic documents not specifically discussed elsewhere will be produced as

image files with related searchable text and available metadata as described in Attachment A. If

said documents in their original form cannot be converted to TIFF as described above, the parties

will promptly meet and confer concerning the form of such production.

15. Documents with children (e.g., email with attachments, archive files, and files with

embedded documents) shall be treated as separate documents. Each document (parent and child)

shall have the same attachment range as a way of identifying the group, as specified in the

Attachment Range field of Attachment A.

16. In the event that a party needs to redact a portion of a document for which only a native

file is produced (e.g., Excel and PowerPoint), the parties will meet and confer regarding

production of the redacted document.


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17. Encryption or password protection of any file is to be removed or the passwords

provided. If software is required to open encrypted files, the party producing the encrypted files

must provide the software.

Search of Electronically Stored Information

18. To the extent that any party intends to limit the scope of a response to a request for

production through the use of search terms, the parties agree to meet and confer regarding the

responding party’s search of ESI, including the party’s technological search capability and the

most effective means of defining search criteria, such as date ranges, custodians, and key words.

19. The parties agree that the use of an agreed-on search process or set of search criteria shall

not be construed as a waiver of any party’s right to request subsequent searches and productions,

particularly where there is a showing that the agreed-to search process and criteria have resulted

in inadequate productions or failed to identify relevant materials. The parties also reserve their

right to object to any additional requests or subsequent searches.

20. The parties agree that documents identified by search terms may be reviewed for

privilege, confidentiality, relevance, or responsiveness prior to production.

Deduplication

21. The parties agree to use MD-5 hash values to deduplicate exact duplicate documents

across custodians. As noted in Attachment A, MD-5 hash values will be calculated at the time of

collection or processing for all categories of ESI.

Paper Documents

22. The parties agree to produce hard-copy documents as TIFF or JPEG files, as described in

paragraphs 1-3, above.


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23. To the extent possible, the parties will endeavor to apply unitization practices consistent

with the following description: Each page of a hard copy document shall be scanned into an

image and if a document is more than one page, the unitization of the document and any

attachments shall be maintained as it existed in the original when creating the image file. For

documents that contain fixed notes, (e.g., post-it notes), the pages will be scanned both with and

without the notes and those pages will be treated as part of the same document. The relationship

of documents in a document collection (e.g., cover letter and enclosures, email and attachments,

binder containing multiple documents, or other documents where a parent-child relationship

exists between the documents) shall be maintained through the scanning or conversion process.

If more than one level of parent-child relationship exists, documents will be kept in order, but all

will be treated as children of the initial parent document. Such information shall be produced in

conformity with the Attachment Range field in Attachment A in a manner which enables the

parent-child relationship among documents in a document collection to be reconstituted by the

receiving party in Concordance.

Privilege Logs

24. The parties agree that for each document, tangible thing, or ESI withheld based on an

asserted claim of privilege or protection, the party asserting the privilege must produce a

privilege log pursuant to Rule 26(b)(5)(a) of the Federal Rules of Civil Procedure. At minimum,

the privilege log must contain a Bates range, the type of document or ESI, the title of the

document or ESI, the date of the creation or transmission of the document or ESI, the author or

authors of the document or ESI, the recipients of the document or ESI (including individuals

copied or blind-copied), whether the document or ESI contains attachments, the privilege or

privileges claimed, and the basis for the assertion of privilege or protection.


9

25. The parties agree to provide sufficient information privilege logs to establish the elements

of each asserted privilege. See, e.g., Taylor Energy Co. v. Underwriters at Lloyds of London,

No. C.A. 09-6383, 2010 WL 3952208 (E.D. La. Oct. 7, 2010). However, the Parties need not

note on a privilege log any document—including but not limited to draft documents—exchanged

solely among counsel, individuals working directly on behalf of counsel in connection with this

litigation (e.g., paralegals, analysts, and litigation support staff), or supervisory staff of the U.S.

Department of Justice or the Office of the Texas Attorney General.

26. E-mail attachments must be separately identified and described if they are withheld based

on an assertion of privilege or protection.

Inadvertent Production of Documents and Clawback

27. The parties agree that a disclosure of communications, documents, tangible things, and

ESI covered by the attorney-client privilege, work product protection, or governmental privileges

does not operate as a waiver in this proceeding if (1) the disclosure is inadvertent and is made in

connection with this litigation or prior proceedings under Section 5 of the Voting Rights Act, 42

U.S.C. § 1973c, and (2) the holder of the privilege or protection took reasonable precautions to

prevent disclosure and took reasonably prompt measures—once the holder knew or should have

known of the disclosure—to rectify the error.

28. Any party receiving material it believes may have been inadvertently produced that

includes privileged or protected information shall promptly notify the producing party. Within

fourteen (14) days after such notification, the producing party may request in writing that such

materials be returned or destroyed. Upon such written request—and except in the event that the

requesting party disputes the claim of privilege or protection—any materials that the producing

party deems to contain inadvertently disclosed materials shall be promptly returned to the


10

producing party or destroyed at the producing party’s option. This includes all copies—

electronic or otherwise—of any such materials and the parties agree that no further copies of the

inadvertently disclosed materials will be made. In the event that copies of inadvertently

produced materials that are privileged or protected are captured on a party’s back-up media used

for disaster recovery, the parties will over-write those copies according to their established back-

up procedures.

29. If privileged or protected information is contained within an item of otherwise

discoverable material, the parties recognize that the requesting party may not be able to destroy

only the portion of the item of the disclosed material that is privileged or protected. Instead, the

requesting party may need to destroy the privileged or protected information along with all of the

otherwise discoverable material within that item. Whenever that is the case, the producing

party—within fourteen (14) days of notification of the inadvertent disclosure—shall provide the

requesting party with a replacement copy of the item materials that are not privileged or

protected and are otherwise discoverable.

30. In the event that the requesting party disputes the producing party’s assertions with

respect to the inadvertently disclosed material, such material shall be sequestered and retained by

and under the control of the requesting party for the purpose of seeking determination of the

issue from the Court. If the Court determines that privilege or protection has been waived or that

the inadvertently disclosed material is not subject to by any applicable privilege or protection,

the requesting party may use the material for any purposes otherwise permitted by law or rule. If

the Court determines that the inadvertently disclosed material is subject to an applicable

privilege or protection, the requesting party must return or destroy the materials at issue, as

provided above.


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31. If the producing party does not request the return or destruction of material within

fourteen (14) days of notification by the receiving party of the receipt of material it believes was

inadvertently produced, the producing party waives any claim of privilege or protection as to the

material.

Sample Production

32. On or before fourteen (14) days following the effective date of this Agreement, the

parties shall exchange a sample production of documents formatted to be consistent with this

Agreement. The sample production shall contain a combination of scanned paper files and ESI

and shall include at least one spreadsheet and one email. The production need not be relevant to

this case, as it is intended only to test the adequacy of the specifications in this Agreement and

the compatibility of the parties’ systems. If any party reports problems with the sample

productions, the parties shall confer regarding the terms of this agreement.

Duty to Supplement Discovery Responses

33. The parties must supplement their disclosures and responses in a timely manner if a party

learns that a disclosure was materially incorrect or incomplete, in accordance with Federal Rule

of Civil Procedure 26(e)(1)(A). Supplementation must be made at appropriate intervals during

discovery and with special promptness as the trial date approaches.

Costs of Document Production

34. Each party shall bear the costs of producing its own documents, things, and ESI.

Requirement to Confer

35. Before filing any motion regarding the terms of this Agreement, compliance with this

Agreement, or any other discovery dispute, the parties will confer in a good faith attempt to

resolve such disputes.


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Dated: November 4, 2013

For the Veasey Plaintiffs

/s/ Chad W. DunnCHAD W. DUNNK. SCOTT BRAZILBrazil & Dunn4201 Cypress Creek ParkwaySuite 530Houston, Texas 77068

J. GERALD HEBERTCampaign Legal Center215 E Street, NEWashington, D.C. 20002

NEIL G. BARONLaw Office of Neil G. Baron914 FM 517 WestSuite 242Dickinson, Texas 77539

DAVID RICHARDSRichards, Rodriguez & Skeith LLP816 Congress AvenueSuite 1200Austin, Texas 78701

ARMAND G. DERFNERDerfner, Altman & Wilborn, LLCP.O. Box 600Charleston, South Carolina 29402

LUIS ROBERTO VERA, JR.Law Offices of Luis Vera Jr.1325 Riverview Towers111 SoledadSan Antonio, Texas 78205

CRAIG M. WATKINSTERESA G. SNELSONDallas County District Attorney’s Office411 Elm StreetFifth FloorDallas, Texas 75202

For the United States of America

KENNETH MAGIDSONUnited States AttorneySouthern District of Texas

JOCELYN SAMUELSActing Assistant Attorney GeneralCivil Rights Division

/s/ Elizabeth S. WestfallT. CHRISTIAN HERREN, JR.MEREDITH BELL-PLATTSELIZABETH S. WESTFALLBRUCE I. GEARJENNIFER L. MARANZANOANNA M. BALDWINDANIEL J. FREEMANAttorneys, Voting SectionCivil Rights DivisionU.S. Department of Justice950 Pennsylvania Avenue, N.W.Washington, D.C. 20530

JOHN A. SMITH IIIAssistant United States Attorney800 N. Shoreline, Suite 500Corpus Christi, Texas 78401


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For NAACP Plaintiffs:

/s/ Ezra D. RosenbergEZRA D. ROSENBERGDechert LLP902 Carnegie Center, Suite 500Princeton, New Jersey 08540

STEVEN B. WEISBURDAMY L. RUDDLINDSEY B. STELCENDechert LLP500 W. 6th Street, Suite 2010Austin, Texas 78701

ROBERT A. KENGLEMARK A. POSNER SONIA KAUR GILL ERANDI ZAMORA Lawyers’ Committee for Civil Rights

Under Law1401 New York Avenue, NW Suite 400Washington, D.C. 20005

WENDYWEISERMYRNA PÉREZVISHAL AGRAHARKAR Jennifer ClarkThe Brennan Center for Justice at NYU Law

School161 Avenue of the Americas, Floor 12New York, New York 10013

ROBERT NOTZONThe Law Office of Robert Notzon1502 West AvenueAustin, Texas 78701

Gary BledsoePotterBledsoe, L.L.P.316 West 12th Street, Suite 307Austin, Texas 78701

KIM KEENANMARSHALL TAYLORVICTOR GOODENAACP4805 Mt. Hope DriveBaltimore, Maryland 21215

JOSE GARZALaw Office of Jose Garza7414 Robin Rest DriveSan Antonio, Texas 98209

CLAY BONILLADANIEL G. COVICHThe Law Offices of William Bonilla, P.C.2727 Morgan Ave.Corpus Christi, Texas 78405


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For Texas League of Young VotersEducational Fund, et al. Intervenors:

/s/ Ryan P. HaygoodSHERRILYN IFILLCHRISTINA SWARNSRYAN P. HAYGOODNATASHA M. KORGAONKARLEAH C. ADENNAACP Legal Defense andEducational Fund, Inc.40 Rector Street, 5th FloorNew York, New York 10006

DANIELLE CONLEYJONATHAN PAIKINKELLY P. DUNBARSONYA L. LEBSACKWilmer Cutler PickeringHale and Dorr LLP1875 Pennsylvania Ave., NWWashington, D.C. 20006

For the State of Texas et al.

GREG ABBOTTAttorney General of Texas

DANIEL T. HODGEFirst Assistant Attorney General

/s/ John B. ScottJOHN B. SCOTTDeputy Attorney General 209 West 14th StreetAustin, Texas 78711


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EXHIBIT 2


1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS, ) ) Plaintiff, ) )VS. ) )ERIC H. HOLDER, JR. in his )official capacity as Attorney )General of the United States, ) ) Defendant, ) )ERIC KENNIE, et al, ) ) Defendant-Intervenors, ) )TEXAS STATE CONFERENCE OF ) CASE NO. 1:12-CV-00128NAACP BRANCHES, ) (RMC-DST-RLW) ) Three-Judge Court Defendant-Intervenors, ) )TEXAS LEAGUE OF YOUNG VOTERS )EDUCATION FUND, et al, ) ) Defendant-Intervenors, ) )TEXAS LEGISLATIVE BALCK )CAUCUS, et al, ) ) Defendant-Intervenors, ) )VICTORIA RODRIGUEZ, et al., ) ) Defendant-Intervenors. )

**********************************************

ORAL DEPOSITION OF

COLBY BEUCK

MAY 14, 2012

**********************************************

Colby Beuck May 14, 2012

Toll Free: 800.211.DEPOFacsimile: 512.328.8139

Suite 2203101 Bee Caves Road

Austin, TX 78746www.esquiresolutions.com


2

1 ORAL DEPOSITION OF COLBY BEUCK, produced as a

2 witness at the instance of the Defendant, was duly

3 sworn, was taken in the above-styled and numbered cause

4 on the MAY 14, 2012, from 9:50 a.m. to 6:08 p.m., before

5 Chris Carpenter, CSR, in and for the State of Texas,

6 reported by machine shorthand, at the offices of The

7 United States Attorney, 816 Congress Avenue, Suite 1000,

8 Austin, Texas 78701, pursuant to the Federal Rules of

9 Civil Procedure and the provisions stated on the record

10 or attached hereto.

11

12

13

14

15

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24

25






31 A P P E A R A N C E S

2 FOR THE PLAINTIFF, STATE OF TEXAS:

3 Patrick K. Sweeten Matthew Frederick

4 Jonathan F. Mitchell OFFICE OF THE ATTORNEY GENERAL OF TEXAS

5 P.O. Box 12548 Austin, TX 78711-2548

6 209 West 8th Street

7 8th Floor Austin, TX 78701

8 (512) 936-1307

9 [email protected]

10 FOR THE DEFENDANT, HOLDER, ET AL:

11 Elizabeth S. Westfall Daniel Freeman

12 Risa Berkower Jennifer Maranzano

13 Bruce Gear U.S. DEPARTMENT OF JUSTICE

14 950 Pennsylvania Avenue, NW NWB - Room 7202

15 Washington, DC 20530 (202) 305-7766

16 [email protected]

17 FOR THE DEFENDANT-INTERVENOR TEXAS STATE CONFERENCE OFNAACP BRANCHES AND THE MEXICAN AMERICAN LEGISLATIVE

18 CAUCUS:

19 Ezra D. Rosenberg DECHERT, LLP

20 Suite 500 902 Carnegie Center

21 Princeton, NJ 08540-6531 (609) 955-3200


23

24

25






4

1 FOR THE KENNIE INTERVENORS:2 Chad W. Dunn

BRAZIL & DUNN, LLP3 4201 Cypress Creek Parkway

Suite 5304 Houston, TX 77068

(281) 580-63105 [email protected] FOR THE RODRIGUEZ INTERVENORS:7 Amy Pederson (by telephone)8

9

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38

1 A. Yes.

2 Q. Do you e-mail her on a work e-mail, or her

3 personal e-mail, or all the above?

4 A. All of the above.

5 Q. What do you generally -- what e-mail do you

6 generally use with Representative Harless?

7 A. It depends. Typically, it is her -- her -- a

8 personal account.

9 Q. Under Texas FOIA, public information law, are

10 citizens able to obtain e-mails through the government

11 account?

12 A. I'm not an expert --

13 Q. To the extent you know.

14 A. -- on the public information law, so I can't --

15 I know state e-mails are subject to the open records

16 law.

17 Q. Do you know whether legislators sometimes use

18 personal e-mail to avoid FOIA?

19 MR. SWEETEN: Objection, calls for

20 speculation.

21 Q. (By Ms. Westfall) You may answer.

22 A. I can't speak to that. I don't know. I can't

23 speak for other legislators.

24 Q. Do you know whether Representative Harless has

25 a Gmail account?






1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS, ) ) Plaintiff, ) )VS. ) )ERIC H. HOLDER, JR. in his )official capacity as Attorney )General of the United States, ) ) Defendant, ) )ERIC KENNIE, et al, ) ) Defendant-Intervenors, ) )TEXAS STATE CONFERENCE OF ) CASE NO. 1:12-CV-00128NAACP BRANCHES, ) (RMC-DST-RLW) ) Three-Judge Court Defendant-Intervenors, ) )TEXAS LEAGUE OF YOUNG VOTERS )EDUCATION FUND, et al, ) ) Defendant-Intervenors, ) )TEXAS LEGISLATIVE BLACK )CAUCUS, et al, ) ) Defendant-Intervenors, ) )VICTORIA RODRIGUEZ, et al., ) ) Defendant-Intervenors. )

**********************************************

ORAL DEPOSITION OF

JANICE McCOY

MAY 16, 2012

**********************************************

Janice McCoy May 16, 2012





2

1 ORAL DEPOSITION OF JANICE McCOY, produced as a

2 witness at the instance of the Defendant, was duly

3 sworn, was taken in the above-styled and numbered cause

4 on the MAY 16, 2012, from 9:39 a.m. to 6:24 p.m., before

5 Chris Carpenter, CSR, in and for the State of Texas,

6 reported by machine shorthand, at the offices of The

7 United States Attorney's Office, 816 Congress Avenue,

8 Suite 1000, Austin, Texas 78701, pursuant to the Federal

9 Rules of Civil Procedure and the provisions stated on

10 the record or attached hereto.

11

12

13

14

15

16

17

18

19

20

21

22

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31

2

3 A P P E A R A N C E S

4 FOR THE PLAINTIFF, STATE OF TEXAS:

5 Matthew Frederick Patrick K. Sweeten

6 OFFICE OF THE ATTORNEY GENERAL OF TEXAS P.O. Box 12548

7 Austin, TX 78711-2548

8 209 West 14th Street 8th Floor

9 Austin, TX 78701 (512) 936-1307


11

12 FOR THE DEFENDANT, HOLDER, ET AL:

13 Jennifer Maranzano Elizabeth S. Westfall

14 U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW

15 NWB - Room 7202 Washington, DC 20530

16 (202) 305-7766 [email protected]


18 FOR THE DEFENDANT-INTERVENOR TEXAS STATE CONFERENCE OFNAACP BRANCHES AND THE MEXICAN AMERICAN LEGISLATIVE

19 CAUCUS:

20 Ezra D. Rosenberg DECHERT, LLP

21 Suite 500 902 Carnegie Center

22 Princeton, NJ 08540-6531 (609) 955-3200


24

25






4

1 FOR THE KENNIE INTERVENORS:2 Chad W. Dunn

BRAZIL & DUNN, LLP3 4201 Cypress Creek Parkway

Suite 5304 Houston, TX 77068

(281) 580-63105 [email protected]

7

8

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34

1 your phone now, is that because they weren't archived in

2 some manner or --

3 A. Right. I delete them.

4 Q. Okay. So other than the phone during the

5 interim, do you communicate with the Senator in any

6 other ways?

7 A. I will, if I'm writing a speech or if he needs

8 some information, I fax things to his home. But other

9 than that, I do not communicate with him in any other

10 way.

11 Q. When you're in the legislative session --

12 A. Yes, ma'am.

13 Q. -- how often do you communicate with the

14 Senator?

15 A. Every day.

16 Q. And how do you usually communicate with him?

17 A. Verbally.

18 Q. Do you and the Senator ever exchange e-mails?

19 A. I have sent him e-mail. He does not respond.

20 Q. Do you send e-mail to his personal account or

21 to a government account?

22 A. Personal.

23 Q. During the time that you worked for Senator

24 Fraser, how many election-related bills has the Senator

25 authored?




