IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … · 2012-06-26 · Case 1:12-cv-00128-RMC-DST-RLW Document 217-1 Filed 06/20/12 Page 1 of 15 2 Defendant Eric H. Holder,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS, Plaintiff, v. 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 NAACP BRANCHES, et al., 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.

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CASE NO. 1:12-CV-00128 (RMC-DST-RLW) Three-Judge Court

DEFENDANT ERIC H. HOLDER’S MOTION IN LIMINE TO EXCLUDE

DOCUMENTS RELATED TO FRAUD AND TESTIMONY BY MAJOR FORREST MITCHELL

Case 1:12-cv-00128-RMC-DST-RLW Document 217 Filed 06/20/12 Page 1 of 5

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Defendant Eric H. Holder (“Attorney General”) moves for an order prohibiting the State

of Texas from moving into evidence any and all testimony, or argument related to issues of voter

fraud derived from three spreadsheets assembled by Major Forrest Mitchell (“Mitchell

spreadsheets”), documents related to voter fraud, and Major Forrest Mitchell’s potential

testimony about either the Mitchell spreadsheets or any voter fraud documentation not produced

in discovery.

Date: June 20, 2012 Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia Civil Rights Division

/s/ Spencer R. Fisher T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO RISA BERKOWER DANIEL J. FREEMAN Attorneys Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: 1-800-253-3931 Email: [email protected]


CERTIFICATE OF CONFERRAL

I hereby certify that on June 20, 2012, counsel for the Attorney General attempted

unsuccessfully to contact counsel for the State of Texas by email at 10:35 p.m. EST and by telephone at 11:25 p.m. EST to confer concerning this Motion.

/s/ Spencer R. Fisher SPENCER R. FISHER Trial Attorney, Voting Section U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 [email protected]


CERTIFICATE OF SERVICE

I hereby certify that on June 20, 2012, I served a true and correct copy of the foregoing via the Court’s ECF system on the following counsel of record:

Jonathan Franklin Mitchell Adam W. Aston Matthew Hamilton Frederick Patrick Kinney Sweeten Office of the Attorney General of Texas [email protected] [email protected] [email protected] [email protected] Counsel for Plaintiff Debo P. Adegbile Leah C. Aden Elise C. Boddie Ryan Haygood Dale E. Ho Natasha Korgaonkar NAACP Legal Defense and Education Fund [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Michael Birney de Leeuw Douglas H. Flaum Adam M. Harris Fried, Frank, Harris, Shriver & Jacobson [email protected] [email protected] [email protected] Counsel for Texas League of Young Voters Intervenors

J. Gerald Hebert [email protected] Chad W. Dunn Brazil & Dunn [email protected] Counsel for Kennie Intervenors Jon M. Greenbaum Mark A. Posner Lawyers’ Committee for Civil Rights [email protected] [email protected] Ezra David Rosenberg Michelle Hart Yeary Dechert LLP [email protected] [email protected] Robert Stephen Notzon [email protected] Gary L. Bledsoe Law Office of Gary L. Bledsoe and Associates [email protected] Myrna Perez Wendy Robin Weiser Ian Arthur Vandewalker The Brennan Center for Justice [email protected] [email protected] [email protected] Counsel for NAACP Intervenors


John Tanner [email protected] Nancy G. Abudu M. Laughlin McDonald Katie O’Connor Arthur B. Spitzer American Civil Liberties Union [email protected] [email protected] [email protected] [email protected] Counsel Texas Legislative Black Caucus Intervenors

Nina Perales Amy Pederson Mexican American Legal Defense & Educational Fund, Inc. [email protected] [email protected] Counsel for Rodriguez Intervenors /s/ Spencer R. Fisher SPENCER R. FISHER Trial Attorney, Voting Section U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 [email protected]




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STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT

ERIC H. HOLDER’S MOTION IN LIMINE TO EXCLUDE DOCUMENTS RELATED TO FRAUD AND TESTIMONY BY MAJOR FORREST

MITCHELL

Case 1:12-cv-00128-RMC-DST-RLW Document 217-1 Filed 06/20/12 Page 1 of 15

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Defendant Eric H. Holder, Jr., in his official capacity as Attorney General of the United

States (“the Attorney General”), respectfully moves this Court for an in limine Order precluding

the Plaintiff State of Texas (“the State”) from offering any and all testimony, or argument related

to issues of voter fraud derived from three spreadsheets (TX_00056816-56834) assembled by

Major Forrest Mitchell (“Mitchell spreadsheets”) (Ex. 1.), documents in support of these

spreadsheets, and Major Mitchell’s testimony about either the Mitchell spreadsheets or any voter

fraud documentation not produced in discovery.

The State should not be permitted to introduce the Mitchell spreadsheets or testimony

related to them because the State did not produce voluminous documents relevant to the issues

raised by these spreadsheets in response to the Attorney General’s document requests and

pursuant to both the notice and amended notice of Major Mitchell’s deposition. (United States’

First Set of Reqs. for Prod. of Docs., March 21, 2012) (Ex. 2.); (Notice of Dep. of Major Forrest

Mitchell, May 26, 2012) (Ex. 3.); (Amended Notice of Dep. of Major Forrest Mitchell, June 12,

2012) (Ex. 4.). These spreadsheets and related testimony should therefore be excluded pursuant

to Fed. R. Civ. P. 37(c)(1) as a discovery sanction. In addition, these spreadsheets and related

testimony are inadmissible because they constitute improper summaries pursuant to Federal Rule

of Evidence 1006, which requires all material supporting a summary to be made available “at a

reasonable time and place.” Because the State refused to do so here, this evidence should be

excluded.

ARGUMENT

The Attorney General anticipates that the State may seek to move into evidence a

compilation of voter fraud data in the form of the Mitchell spreadsheets, documents in support of

these spreadsheets, and testimony from Major Mitchell at trial. As discussed below, the Court


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should issue an order to exclude the Mitchell spreadsheets, the scope of any potential testimony

regarding these spreadsheets by Major Mitchell, and the information contained therein, because

the Plaintiff failed to timely and fully disclose underlying documents related to these matters

during discovery. See e.g., Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir.

1990) (“a motion in limine is designed to narrow the evidentiary issues for trial and to eliminate

unnecessary trial interruptions.”). Absent these underlying documents, the Defendant is unable

to examine and contest this evidence and ascertain its veracity.

A. While in the discovery phase of this case, Texas failed to produce the vast majority of documents underlying the Mitchell spreadsheets.

Texas has produced very little of an admittedly large volume of documentation related to

the issues of voter fraud set forth in the Mitchell spreadsheets. As an initial matter, this court

ordered that Texas produce non-privileged documents responsive to the Attorney General’s

document production requests by May 11, 2012, including any relevant privilege logs. (Order,

May 7, 2011, ECF No. 107.) Major Mitchell, however, was not identified by the State as a

potential witness with discoverable information until May 21, 2012, the established deadline for

discovery motions.1

Soon after Major Mitchell was identified by the State, the Attorney General provided

notice of Major Mitchell’s deposition obligating Major Mitchell to produce all non-privileged

documentation responsive to the Attorney General’s requests by June 2, 2012. (Ex. 3.). These

(Pls. Supplemental Initial Disclosures, May 21, 2012); see Fed. R. Civ. P.

26(a)(1)(A)(i).

1 The State’s original objections to the Attorney General’s requested production of documents related to voter fraud well pre-dated its identification of Major Mitchell as an individual likely to have discoverable information as well as its later identification of documents potentially responsive to the Attorney General’s requests. Compare (Pls. Objections and Resps. To Defs. First Set of Reqs. for Produc., March 30, 2012) (Ex. 5.) with Letter from John W. McKenzie, III to Bruce Gear (June 7, 2012) (Ex. 6.)


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requests included, inter alia, “all documents and communications . . . related to any

investigations of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the

present.” (Id. at 6.); see Fed. R. Civ. P. 30(b)(2), 34(a)(1)(A) (notice to a party deponent may be

accompanied, by a request for the production of documents and tangible things at the

deposition).

Texas objected to the Attorney General’s requests and served the Attorney General with

the first version of Texas’s objections and responses to Major Mitchell’s Notice of Deposition on

June 6, 2012. (Objections and Responses to Exhibit A of Major Mitchell’s Notice of Deposition,

June, 6, 2012) (Ex. 7.) In this document, Texas referenced its production of three spreadsheets

compiled by Major Mitchell summarizing voter fraud investigations. (Id. at 2 citing

TX_00056816-56834.) Meanwhile, Texas’s substantive responses objecting to the Attorney

General’s requests consisted of boilerplate language referencing, inter alia, relevance concerns,

issues related to privilege, and issues concerning the possession, custody and control of the

requested documents. (Id.) Yet, the State failed to note specifically which objections applied to

which of the Attorney General’s requests. (Id.)

In a letter sent a day later on June 7, the State also noted, for the first time in writing that

the requests “call for the production of approximately 300 case files containing over 10,000

pages of materials.” (Ex. 6 at 2.) And that “[m]any of the case files are stored in an offsite

warehouse and are not readily accessible to Mr. Mitchell.” Id. Despite this fact, the State noted

that it would “produce to the Department of Justice convictions and indictments for Voter Fraud

from the time period identified in Exhibit A to Mr. Mitchell’s Notice by 6:00 p.m. on June 8,

2012.” Id. The State again also included boilerplate objections to the materials requested by the


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Attorney General stating, inter alia, that the requests were “overbroad, unduly burdensome, and

of marginal relevance.” Id.

By consent of the parties, Major Mitchell’s deposition was subsequently rescheduled

from Friday, June 8 to Friday, June 15 to allow for time to review the State’s promised

production. In a letter consenting to this change, the Attorney General noted that the State “had

requested that we identify what documents we think we need in response to the spreadsheet the

State has provided” and that this request was unacceptable. Letter from Bruce Gear to Patrick

W. Sweeten (June 7, 2012) (Ex. 8.) At this point, rather than producing the documents the

Attorney General requested, the State had effectively placed the burden on the Attorney General

to identify specific documents for production about which he had no knowledge.

In a subsequent objection served on the Attorney General only two days before Major

Mitchell’s rescheduled deposition, Texas again included boilerplate language objecting broadly

to the Attorney General’s requests for production. (Objections and Responses to Exhibit A of

Major Mitchell’s Amended Notice of Deposition, June, 13, 2012) (Ex. 9.) Additionally, Texas

referenced its production of materials on voter fraud investigations from June 9th, including the

spreadsheets, (TX_00056816-56834 and TX_00267733-00269313), documents responsive to

public information act requests (TX_00296962-00298267), and public testimony available on the

internet regarding the issue of voter fraud. (Id. at 2.)

Again, however, the State failed to produce all of the documents responsive to the

Attorney General’s requests and restated its broad, unsupported objections to these requests. On

June 14, on the eve of Major Mitchell’s deposition, the State produced a small number of

documents to the Attorney General concerning Major Mitchell (TX_00298843, 299038). But,


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given the State’s tardy production, counsel for the Attorney General did not have a reasonable

opportunity to review these documents prior to the scheduled deposition.

Thus, in total (excluding gaps in the bates number ranges provided), the State produced

around 400 documents, out of the 10,000 it referenced in its June 7 letter, to the Attorney

General regarding voter fraud investigations. These productions occurred only at the very end of

the discovery phase of this case and were wholly insufficient. As a result of the State’s dilatory

conduct in identifying and producing the requested documents, the Attorney General was

provided untimely information upon which to evaluate and thoroughly question the nature and

scope of the entries in Major Mitchell’s three spreadsheets.

Major Mitchell, in fact, gave some indication of the contents of these missing documents

in his deposition testimony on June 15:

Q. (Mr. Bruce Gear) Now, when you talk about “10,000 pages of irrelevant documents,” can you give me an idea of what you’re actually referring to? A. (Major Mitchell) Case files. Q. And those are case files that regard the spreadsheets that you’ve provided to the defendant, Eric Holder, in this case? A. Yes, sir. Q. And those case files include conviction records, if any? A. Correct. Q. They include testimony, if any? A. I do not believe the case files would include testimony. Q. Okay. Why don’t we do it this way. Generally what would the case files include? A. The case file would generally contain a referral document from an outside agency. Q. Okay. A. Such as the Secretary of State’s office, a local district attorney’s office or county attorney’s office. Q. Which would initiate the action in the attorney general’s office? A. Correct. Q. Okay. What else would it include? A. It also could include affidavits from complainants -- Q. Okay.


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A. Who forwarded that information to whatever referral agency. It may contain documents such as voter registration records or mail-in ballot applications or poll place combination forms. Q. And those documents would have come from the? A. Referring agency. Q. Referring agency. Okay. Anything else that would be in the files, generally? A. In the entire case file would be investigative work product, such as interviews of witnesses. Q. Notes? A. Notes. Suspect interviews, audio recordings, personal identifying information of witnesses or suspects contacted, additional election records obtained. And each one will generally contain an open case form and a closed case form, along with any sorts of court pleadings such as, indictments or information or the final disposition of the case.

(Mitchell Dep. 22:3-23:23, June 15, 2012.) (emphasis added)

Q. So let’s talk about that structure a little bit. Your unit, the SIU, conducts the investigations. How does it then, shift to the prosecution stage? A. At the completion of our investigation, we would prepare an investigative packet with statements, reports, supporting documentation, it could be recorded interviews, those kinds of things. And that would be presented to the local district attorney, county attorney or to the criminal prosecutions division. Q. And did you produce these election investigation packets to your attorney, to your attorney in this case? A. In the scope of this? Q. Yes. A. No.

(Mitchell Dep. 66:10-66:23, June 15, 2012.) (emphasis added)

In addition, given the extreme delay in production of these documents and the previous

expiration of the timeline for discovery motions in this matter, the Attorney General was

prevented, as a procedural matter, from filing a motion to compel production of these documents.

(Mitchell Dep. 15:8-15:17, June 15, 2012 (“Q. Okay. And what did you do in response to the

discovery? A. I reviewed my personal e-mail, my work e-mail and documents I had

electronically saved on our network. Q. Did you produce those documents to your attorney? A.

Yes, Sir. Q. And when did you produce those? A. It’s been an ongoing process. I started

producing them last week.”).)


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If a party fails to properly disclose documents under the Federal Rules, which it will seek

to use to support its claims or defenses, the party will not be permitted to use that information “to

supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(c)(1). See generally Bonds v. Dist. of Columbia, 93

F.3d 801, 807 (D.C. Cir. 1996) (“Rule 37 authorizes the district court, in response to a failure to

serve answers or objections to interrogatories, to make such orders in regard to the failure as are

just, including prohibiting that party from introducing designated matters into evidence.”)

(internal quotations omitted). In applying this rule, federal courts rarely find special justification

or harmlessness for evidence not produced to the opposing party during regular discovery

proceedings. See, e.g., Design Strategy, Inc. v. Davis, 469 F.3d 284, 293-95 (2d Cir. 2007)

(affirming exclusion of expert testimony calculating damage theories never mentioned during

discovery); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105-06 (9th Cir.

2001) (limiting expert testimony to contents of initial report and disallowing testimony on

rebuttal report submitted 28 days prior to trial).

In this Court, the exclusion of the undisclosed evidence or testimony is automatic unless

the party that failed to disclose can prove that its failure was substantially justified or harmless.

See Norden v. Samper, 544 F.Supp.2d 43, 49 (D.D.C. 2008) (Collyer, J.) (stating that Rule

37(c)(1) is a self-executing sanction, and that “preclusion is required and mandatory absent some

unusual or extenuating circumstances-that is, a ‘substantial justification.’”) (quoting Elion v.

Jackson, No. 05-0992, 2006 WL 2583694 at *1 (D.D.C. Sept. 8, 2006)); see also DCFS USA,

LLC v. Dist. of Columbia, 803 F. Supp. 2d 29 (D.D.C. 2011) (striking evidence from record

where information properly sought but not produced was “suddenly unveiled” in opposition for a

motion for summary judgment); U.S. ex rel. Purcell v. MWI Corp., 824 F. Supp. 2d 12, 19


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(D.D.C. 2011) (striking declarations from two witnesses because late disclosure was not

substantially justified or harmless; failure to anticipate the need for witnesses does not

substantially justify untimely submission of witness declarations) (“If the court accepted these

eleventh-hour declarations, the government would effectively be deprived of the opportunity to

depose the defendant's new witnesses.”); Abston v. Fitness Co., 216 F.R.D. 143, 147 (D.D.C.

2003) (excluding testimony and evidence due to failure to timely and adequately respond to

interrogatory requests, except as to what was adequately and timely disclosed).

B. The State’s blanket refusals of the Attorney General’s requests were unsupported by any particularized objections rendering them entirely ineffective and unjustified. The scope of discovery in civil actions is broad, allowing for discovery regarding any

non-privileged matter that is relevant to a claim or defense. See Fed. R. Civ. P. 26(b)(1).

Further, “[t]he party objecting to . . . discovery bears the burden of ‘show[ing] why discovery

should not be permitted.’ ” Alexander v. F.B.I., 194 F.R.D. 299, 302 (D.D.C. 2000). In addition

this Court has noted that it “only entertains an unduly burdensome objection when the

responding party demonstrates how [discovery of] the document is ‘overly broad, burdensome,

or oppressive, by submitting affidavits or offering evidence which reveals the nature of the

burden.’ ” Tequila Centinela Tequila Centinela, S.A. de C.V. v. Bacardi & Co., Ltd., 242 F.R.D.

1, 10 (D.D.C.2007) (quoting U.S. ex rel. Fisher v. Network Software Associates, 217 F.R.D. 240,

246 (D.D.C.2003).

In objecting to the Attorney’s General’s requests, Texas failed to explain the specific

ways in which these requests were overly broad or unduly burdensome. Thus, the State’s

blanket objections were entirely ineffective as they did not particularize why potentially


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responsive documents were being withheld. See DL v. District of Columbia, 251 F.R.D. 38, 46

(D.D.C. 2008)

The State also failed to explain specifically why Major Mitchell does not have access to

or a legal right to demand documents which serve as the foundation for the three spreadsheets the

State concedes he maintains in the ordinary course of business.2

With regard to the State’s arguments that the Attorney General’s requests called for the

production of documents that were subject to legislative privilege, deliberative process privilege,

contain attorney-client communications, or are otherwise privileged, the State produced no

privilege log with regard to these documents. Under Federal Rule of Civil Procedure 26(b)(5):

Non-possession of documents

or things for inspection is not a determining factor of whether such documentation is produced—

control of such documents is the determining factor. See George Hantscho Co. v. Miehle-Goss-

Dexter, Inc., 33 F.R.D. 332, 334-35 (S.D.N.Y. 1963). Further, control has been defined as a

legal right to obtain the documents upon demand from a third party. See e.g., Cochran

Consulting, Inc. v. Uwatec USA, Inc., 102 F.3d 1224, 1229-30 (Fed. Cir. 1996). The State failed

to explain why Major Mitchell had no legal right to the documents which serve to inform his

compilation of the spreadsheets upon which he relied.

When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must . . . describe the nature of the documents, communications, or tangible things not produced or disclosed- and do so in a manner that . . . will enable other parties to assess the claim.

2 Federal Rule of Evidence 803 permits the introduction in civil actions of business and public records as exceptions to hearsay “unless the sources of information or other circumstances indicate lack of trustworthiness.” In such cases, a “district court retains significant discretion as to whether such material ought to be admitted.” Halloway v. Milwaukee Cnty, 180 F.3d 820, 827 n.9 (7th Cir. 1999); see also Fed. R. Evid. 803 advisory committee’s note (8)(c) (suggesting criteria to consider on the issue of admissibility, but noting that no exhaustive list is possible).


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The State failed to satisfy its obligations under Rule 26(b)(5). Thus, the State’s objections on the

basis of privilege should be rejected outright. See DL v. District of Columbia, 251 F.R.D. at 45;

see also U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 235 F.R.D. 521, 523

(D.D.C. 2006).

C. The Mitchell spreadsheets and related testimony are inadmissible because they improperly summarize voluminous documents.

Rule 1006 of the Federal Rules of Evidence provides that “[t]he proponent may use a

summary . . . to prove the content of voluminous writings . . . that cannot be conveniently

examined in court. The proponent must make the originals or duplicates available for

examination . . . by other parties at a reasonable time and place.” Fed. R. Evid. 1006. The

purpose of this rule is to ensure that the admission of summary evidence is “dependant upon the

presence of safeguards that both reduce the risk that the evidence may be inaccurate and mitigate

the damage if it is inaccurate.” 31 Wright & Miller, Fed. Practice & Procedure § 8045 (2012).

The Mitchell spreadsheets purport to summarize the contents of 10,000 pages of case

files detailing state prosecutions over a 10-year time period. As described above, despite the

Attorney General’s repeated and specific requests, Texas has steadfastly refused to permit the

Attorney General to examine the documents that were used to create these summaries. Because

the Attorney General has been prevented from examining the records that allegedly support the

information contained in the Mitchell spreadsheets—and has therefore been deprived of the

opportunity to test its accuracy—the spreadsheets and related testimony are inadmissible and

should be excluded. See United States v. Kim, 595 F.2d 755, 764 (D.C. Cir. 1979) (“When the

underlying documents are not subject to examination by the opposing parties, the summary

should not be admitted into evidence.”); see also 31 Wright & Miller, Fed. Practice & Procedure


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§ 8045 & n.5 (“If the proponent of summary evidence fails to make the source material

reasonably available, the court should not admit the summary evidence.”) (citing cases).

D. Major Mitchell’s testimony should be restricted to matters within his own knowledge.

The Defendant respectfully requests that the State be prevented from offering any and all

testimony, evidence, or argument related to issues of voter fraud derived from the spreadsheets

assembled by Major Mitchell as such testimony, evidence, or argument would be reliant on

information that was not timely or sufficiently disclosed to the Attorney General for review

despite repeated requests for production. At an absolute minimum, this Court should cabin any

potential testimony from Major Mitchell to matters solely within his own personal knowledge

excluding all of the spreadsheet information. See Fed. R. Evid. 602, 701(a); see also United

States v. Becerril-Lopez, 541 F.3d 881, 888 (9th Cir. 2008) (finding an abuse of discretion in the

admission of testimony that amounted to a government agent merely reading another’s report.).

Major Mitchell has not been offered as an expert in this matter by the Plaintiff and, for

the reasons given above, even if he were offered as such, his testimony would be severely limited

by the Plaintiff’s failure to properly disclose relevant information. See, e.g., Olson v. Mont. Rail

Link, Inc., 227 F.R.D. 550, 553 (D. Mont. 2005) (where data underlying defendant’s expert’s

report was untimely disclosed the court would prohibit the expert “from relying in any way upon

data or conclusions specifically not included and spelled out in his” original expert report; any

opinion held by the expert that was not properly disclosed would be stricken as would be “any

opinion or evidence based on undisclosed data or testing”); BTO Logging, Inc. v. Deere & Co.,

174 F.R.D. 690, 692-94 (D. Or. 1997) (plaintiff’s disposal of evidence had precluded defendant’s

expert from examining that evidence, thus “any testimony by [plaintiff’s] experts . . . which

[was] based on their examinations of the” disposed evidence would be excluded).


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CONCLUSION

For the reasons given above, the Attorney General respectfully requests that this Court

grant his Motion for an in limine Order to exclude the Mitchell spreadsheets, any documents

related to these spreadsheets and Major Mitchell’s testimony about the Mitchell spreadsheets,

and any voter fraud documentation not produced in discovery.

Date: June 20, 2012 Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia Civil Rights Division

/s/ Spencer R. Fisher T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR SPENCER R. FISHER JENNIFER L. MARANZANO RISA BERKOWER DANIEL J. FREEMAN Attorneys Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: 1-800-253-3931 Email: [email protected]



I hereby certify that on June 20, 2012, I served a true and correct copy of the foregoing via the Court’s ECF system on the following counsel of record:

Jonathan Franklin Mitchell Adam W. Aston Matthew Hamilton Frederick Patrick Kinney Sweeten Office of the Attorney General of Texas [email protected] [email protected] [email protected] [email protected] Counsel for Plaintiff Debo P. Adegbile Leah C. Aden Elise C. Boddie Ryan Haygood Dale E. Ho Natasha Korgaonkar NAACP Legal Defense and Education Fund [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Michael Birney de Leeuw Douglas H. Flaum Adam M. Harris Fried, Frank, Harris, Shriver & Jacobson [email protected] [email protected] [email protected] Counsel for Texas League of Young Voters Intervenors

J. Gerald Hebert [email protected] Chad W. Dunn Brazil & Dunn [email protected] Counsel for Kennie Intervenors Jon M. Greenbaum Mark A. Posner Lawyers’ Committee for Civil Rights [email protected] [email protected] Ezra David Rosenberg Michelle Hart Yeary Dechert LLP [email protected] [email protected] Robert Stephen Notzon [email protected] Gary L. Bledsoe Law Office of Gary L. Bledsoe and Associates [email protected] Myrna Perez Wendy Robin Weiser Ian Arthur Vandewalker The Brennan Center for Justice [email protected] [email protected] [email protected] Counsel for NAACP Intervenors


John Tanner [email protected] Nancy G. Abudu M. Laughlin McDonald Katie O’Connor Arthur B. Spitzer American Civil Liberties Union [email protected] [email protected] [email protected] [email protected] Counsel Texas Legislative Black Caucus Intervenors

Nina Perales Amy Pederson Mexican American Legal Defense & Educational Fund, Inc. [email protected] [email protected] Counsel for Rodriguez Intervenors /s/ Spencer R. Fisher SPENCER R. FISHER Trial Attorney, Voting Section U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 [email protected]




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PROPOSED ORDER

Upon consideration of Defendant Eric H. Holder’s Motion in Limine to Exclude

Documents Related to Fraud and Testimony by Major Forrest Mitchell, Statement of Points and


Authorities in Support thereof, Plaintiff State of Texas’s opposition memorandum, and

Defendant Holder’s reply memorandum.

It is hereby ORDERED that Defendant Attorney General Eric H. Holder’s Motion in

Limine to Exclude Documents Related to Fraud and Testimony by Major Forrest Mitchell is

GRANTED; and it is

FURTHER ORDERED that Major Mitchell’s testimony is precluded in so far as it

concerns spreadsheets and any voter fraud documentation not timely produced in discovery.

This ___ day of _______, 2012.

_____________________ ROSEMARY COLLYER United States District Judge

_____________________ DAVID S. TATEL United States Circuit Judge

_____________________ ROBERT L. WILKINS United States District Judge


Exhibit 1





















Exhibit 2



STATE OF TEXAS, Plaintiff, v. 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 NAACP BRANCHES, et al., Defendant-Intervenors.

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UNITED STATES’ FIRST SET OF REQUESTS

FOR PRODUCTION OF DOCUMENTS Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendant Eric J. Holder, Jr.

requests that Plaintiff State of Texas (“Plaintiff” or “State”) identify and produce the documents

and items requested below for inspection and copying and deliver copies to counsel for United

States by March 27, 2011. This request is continuing in nature as provided by Rule 26(e) of the

Federal Rules of Civil Procedure.

INSTRUCTIONS AND DEFINITIONS

1. “The State,” “Texas,” or “Plaintiff” means Plaintiff State of Texas and any of its

agents, representatives, employees, and any person acting or purporting to act on its behalf.


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2. “S.B. 14” means 2011 Texas General Laws Chapter 123, which amends the Texas

Transportation Code relating to the issuance of election identification certificates, and which

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

identification requirements for the State of Texas.

3. “Legislator” means an elected member of the Texas House of Representatives or

the Texas State Senate, including employees, staff, interns, representatives, designees, agents, or

any persons acting or purporting to act on behalf of the Texas House of Representatives or the

Texas State Senate, any committee thereof, or any elected member of the Texas House of

Representatives or the Texas State Senate.

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

“document” is used under Federal Rule of Civil Procedure 34 and the phrase “writings and

recordings” is defined in Federal Rule of Evidence 1001, and includes, but is not limited to, any

computer discs, tapes, printouts and emails, and databases, and any handwritten, typewritten,

printed, electronically-recorded, taped, graphic, machine-readable, or other material, of whatever

nature and in whatever form, including all non-identical copies and drafts thereof, and all copies

bearing any notation or mark not found on the original.

5. In responding to these requests, please produce all responsive documents in the

possession, custody, or control of the State, or documents known to be available to the State,

regardless of whether such documents are possessed directly by the State or its past and present

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

or entities acting on behalf of the State or subject to the State’s control.

6. All references in these requests to an individual person or officer include any and

all past and present agents, advisors, employees, representatives, attorneys, consultants,


3

contractors, predecessors in office or position, and all other persons or entities acting on behalf

of or under control of such a person.

7. All references in these requests to any governmental entity, or any other type of

organization include its past and present officers, executives, directors, employees, agents,

representatives, attorneys, consultants, contractors and all other persons acting or purporting to

act on behalf of such an organization.

8. All documents shall be produced as they are kept in the usual course of business

or be organized and labeled to correspond to each request. For all documents produced, please

identify the names of the person from whose files the documents were produced.

9. No portion of a document request may be left unanswered because an objection is

interposed to another part of that request. If the State objects to any portion of a document

request, the State must state with specificity the grounds of any objections. Any ground not

stated will be waived.

10. If production of any document referred to in this request is refused based on the

assertion of a claim or privilege, with respect to each such document; (1) identify the document

by date, name and title of author, name(s) of recipient(s), title or references, and a description of

the document without revealing information for which the privilege is claimed; (b) state the

privilege(s) pursuant to which production is refused; and (c) in the case of any document

concerning any meeting or conversation, state the date and subject matter of such meeting or

conversation, and identify the persons who attended the meeting or participated in the

conversation.

11. In the event that a responsive document has been destroyed or has passed out of

the State’s custody or control, please identify the following information with respect to each such


4

document: its title, date, author(s), sender(s), recipient(s), subject matter, the circumstances

under which it has become unavailable, and, if known, its current location and custodian.

12. In the event that a responsive document is not available in the form requested but

is available in another form or can be obtained, in whole or in part, from other data in the State’s

possession, custody, or control, please so state and either supply the information requested in the

form in which it is available or supply the data from which the information requested can be

obtained.

13. Original and all non-identical copies of responsive documents, including all drafts

must be produced. If the State is unable to produce the original of any document, please produce

the best available copy and all non-identical copies, including drafts.

14. 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.

15. If any part of the requested information is stored on computer disc, tapes or in any

other electronic form, and is responsive to the request, it should be provided in the electronic

form, consistent with the parties’ agreement on production of electronically stored information.

16. Documents available only in paper or hardcopy format shall be scanned into

electronic format and produced via a secure FTP site, as provided herein.

17. Paper documents shall be scanned as 300 dpi single-page TIFF files, using CCITT

Group IV compression. Documents that contain color (i.e., non-black-and-white) text,

photographs, or graphic images shall be scanned in color. Each page shall be branded with a


5

unique Bates number, which shall not be an overlay of the image. The Bates numbering

convention shall be in the format “TX _ ########” where “########” represents the eight-digit

sequential number of the document being produced by the State. The images shall be

accompanied by: (1) an Opticon or IPRO cross-reference file that associates each Bates number

with its corresponding single-page TIFF image file; and 2) a “text load file” containing one line

for each document and fields for first and last Bates number, Attachment Beginning Bates

Number, Attachment End Bates Number, TO, FROM, CC:, BCC:, subject, date sent, time sent,

Message ID, Main Date, Title, Document Type, Custodian , Redacted flag, Original Filename,

original File Path, Folder, Create Date/Time, Modify Date/Time, native filepath. The text load

file shall contain a pipe ( | ) as a field separator and carots ( ^ ) around each field. The text

generated by Optical Character Recognition (OCR) shall be saved in a text file named for the

first Bates number of the document and saved in the same directory as the images. (e.g.,

TX_00000001.tif and TX_00000001.txt.

18. Word, WordPerfect, PDF, and PowerPoint documents shall be converted to

images and produced consistent with the specifications in paragraph two, except that the text file

accompanying the images shall contain the filename of the document as a metadata field, along

with the extracted text from each document in place of OCR text, unless the document contains

redactions, in which case re-OCR’ed text may be provided.

19. 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. All documents identified or relied upon in responding to United States’ First Set

of Interrogatories (March 20, 2012).


6

2. All documents related to the sources, drafting, development, or analysis of S.B.

14 and the procedural sequence of introduction, consideration, and enactment of S.B. 14.

3. All documents 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, the Attorney General, Legislators, and Texas county election officials, related to the

drafting, proposing, development, or plans to implement S.B. 14.

4. All documents related to any and all alternatives to S.B. 14 or amendments to S.B.

14 that were presented to, or considered, assessed, or reviewed by any Legislator during the

drafting or consideration of S.B. 14.

5. The State’s voter registration database, driver license database, personal

identification card database, and concealed handgun license database 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.

6. Databases used by the State to produce two matches of registered-voter data

against data sources maintained by the State’s Department of Public Safety to the Attorney

General on September 7, 2011; October 4, 2011; and January 12, 2012.

7. All documents related to the factual allegation in paragraph 33 of the First

Amended Complaint (Doc. 25) that “Texas’s Voter-ID law was not enacted with the purpose of

disenfranchising minority voters,” including but not limited to each and every reason,

justification, rationale, interest, or purpose related to the enactment of S.B. 14 and the nexus

between any or all of those purposes and S.B. 14.


7

8. All documents related to the factual allegation in paragraph 36 of the First

Amended Complaint (Doc. 25) that S.B. 14 imposes a minor inconvenience on voters.

9. All documents related to the factual allegation in Claim One of the First Amended

Complaint (Doc. 25) that S.B. 14 does not have the “effect of denying or abridging the right to

vote on account or race or color, or because of membership in a language minority group. ”

10. All documents related to communications between, among, or with Legislators,

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

introduction, enactment, or implementation of S.B. 14.

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

or other analyses of the effect that S.B. 14 will impose upon minority voters, on voters on

account of race or color, or on voters who are members of a language minority group.

12. All documents related to plans to implement and administer the issuance of

“election identification certificates” established by S.B. 14.

13. All documents that list or otherwise identify any and all forms of photo

identification issued by the State.

14. All documents related to any and all allegations concerning (a) in-person voter

impersonation or other in-person voter fraud that occurred in the State of Texas from January1,

2002, to the present and (b) instances of voting in Texas by persons who are not citizens of the

United States from January1, 2002, to the present.

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

or other analyses of all activities that a person who is a registered voter, but does not have the

requisite identification, must complete in order to obtain the documentation necessary to cast a

valid ballot pursuant to S.B. 14.


8

16. All documents related to any reports, estimates, projections, or other analyses of

the impact that S.B. 14, or other proposals to require voter applicants or voters to produce photo

identification, will or may have on voter turnout or voter registration.

17. All documents related to any reports, estimates, projections, or other analyses of

the impact that S.B. 14 will or may have on rates of use of and acceptance of provisional ballots.

18. All documents related to implementation of S.B. 14 and training, voter education,

and outreach concerning S.B. 14, including but not limited to training of county election

officials, state agencies, and election-related organizations or associations; voter education; and

mobile outreach or any other effort to provide voters who do not possess requisite photo

identification under S.B. 14 with an election identification certificate or other form of

identification accepted under S.B. 14.

19. All documents related to the consideration of S.B. 362 (81st Legislature) and H.B.

218 (80th Legislature).

Date: March 20, 2011 RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia Civil Rights Division /s/ Elizabeth S. Westfall T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH WESTFALL BRUCE I. GEAR JENNIFER MARANZANO DANIEL J. FREEMAN Attorneys Voting Section, Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 353-0099


CERTIFICATE OF SERVICE OF DISCOVERY

I hereby certify that on March 20, 2012, I served a true and correct copy of the foregoing via electronic mail on the following counsel of record: Jonathan Franklin Mitchell Adam Aston Arthur D’Andrea Office of the Attorney General of Texas [email protected] [email protected] [email protected] Counsel for Plaintiff Chad W. Dunn Brazil & Dunn [email protected] J. Gerald Hebert [email protected] Counsel for Kennie Intervenors

Mark A. Posner Lawyers’ Committee for Civil Rights [email protected] Ezra Rosenberg Dechert LLP [email protected] Myrna Perez Brennan Center for Justice [email protected] Jose Garza [email protected] Counsel for NAACP Intervenors

/s/ Elizabeth S. Westfall Elizabeth S. Westfall U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 353-0099 [email protected]


Exhibit 3




) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )


NOTICE OF DEPOSITION To: COUNSEL OF RECORD


Please take notice that pursuant to Rule 30 of the Federal Rules of Civil Procedure,

counsel for Attorney General Eric H. Holder, Jr., Defendant in the above-styled and numbered

cause of action, will take the deposition of Major Forrest Mitchell upon oral examination on

Friday, June 8, beginning at 9:30 a.m., and continuing thereafter as needed, at the United

States Attorney’ Office, 816 Congress Avenue, Suite 1000, Austin, Texas 78701; Phone: (512)

916-5858. This deposition shall be recorded by stenographic means and shall take place before a

notary public or other person authorized by law to administer oaths. The Attorney General may

also videotape the deposition noticed above.

The above deponent shall be required to produce all documents in her custody,

possession, or control that is responsive to the enclosed Attachment A by June 2, 2012.

You are invited to attend and examine the witness.

Date: May 26, 2012

Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia Civil Rights Division

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


Attachment A

DEFINITIONS AND INSTRUCTIONS





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

identification requirements.

3. The “Office of the Texas Attorney General” means the civil and defense litigation

divisions, the criminal justice divisions, and the special investigations unit, including, employees,

staff, interns, representatives, designees, agents, or any persons acting or purporting to act on

behalf of the Attorney General of Texas.

4. “Voter fraud” is defined to be synonymous in meaning and scope as the term is

set forth in the Texas Election Code, and includes, but is not limited to Chapter 64, Voting

Procedures, and § 64.012 which deals with illegal voting.

5. “Person,” unless otherwise specified, shall mean and include natural persons,

corporations, firms, partnerships, proprietorships, associations, trusts, estates, government

bodies, government agencies and commissions, and any other organization or entity. Whenever

reference is made to a person, it includes any and all of such person’s predecessors in office or

position, past or present principals, employees, agents, attorneys, consultants, contractors, and

other representatives.







nature and in whatever form, including all non-identical copies and drafts thereof, all copies

bearing any notation or mark not found on the original, and all deleted or erased documents that

may be retrieved from hard drives, floppy disks, flash drives, electronic back-up files, or any

other back-up system.

7. “Communication” means any transmission of information by oral, graphic,

written, pictorial, electronic, or other perceptible means, including by document, or later

memorialized in a document, including email, text messages, memoranda of conversations,

correspondence, data processing, pictures, or recordings. All communications produced shall

include documents sufficient to identify all email addresses, telephone numbers, pager or

blackberry numbers, or other personal identifying characteristic of any form of electronic

communication used by any party with respect to all communications responsive to the above

requests.

8. “Database” means any data sets, reports, programs, and files accessible by

computer that contain data that can be processed and/or sorted using standard spreadsheet or

database software, including but not limited to Oracle SQL, Microsoft Access, Microsoft Excel,

Lotus 1-2-3, Quattro Pro, SAS, STATA, and SPSS.

9. Please note that you are required to produce any document in your custody,

possession, or control that is responsive to the below requests, regardless of whether it was

produced on official or personal equipment.


10. If any document requested was at one time in existence, but has been lost,

discarded, destroyed, or transferred to others, please identify the following information with

respect to each such document: its title, date, author(s), sender(s), recipient(s), subject matter, the

circumstances under which it has become unavailable, and, if known, its current location and

custodian.








conversation.

12. The terms “and,” “or,” and “and/or” shall be construed 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.

DOCUMENTS

(1) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, and other Texas state executive offices and agencies, concerning any or all reasons, justifications, rationales, interests, or purposes in enacting S.B.14.

(2) All documents and communications, including but not limited to those among and

between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any


complaints of Voter Fraud that were either referred, reviewed, or initiated by the Office of the Texas Attorney General, that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any investigations of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any prosecutions of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any convictions of Voter fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any plea agreements or fines of Voter fraud that occurred in the State of Texas from


January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.

(7) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, concerning Voter Fraud and the sources, history, and drafting of S.B. 14.


between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, concerning Voter Fraud and the introduction, consideration, and passage of S.B. 14.


between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, relating to Voter Fraud and the implementation of S.B. 14, plans to implement S.B. 14, or plans related to S.B. 14 that were considered but not adopted.


between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, and other Texas state executive offices and agencies, and any federal agency, relating to Voter Fraud and inquiries, questions, or concerns regarding the effect of S.B. 14 on minority voters, responses to such inquiries, and any calculations, reports, audits, estimates, projections, assessments or other analyses of the effect that S.B. 14 will impose upon minority voters.

(11) All documents and communications between the Office of the Texas Attorney

General and members of the public, private organizations, and governmental entities relating to Voter Fraud and inquiries, questions, or concerns regarding S.B. 14 (82nd Legislature), S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).

(12) All documents produced in response to any requests received pursuant to Texas

Public Information Act, Texas Government Code chapter 552, relating to Voter Fraud


and S.B. 14 (82nd Legislature), S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).

(13) All public statements the Office of the Texas Attorney General has made about Voter

Fraud related to S.B. 14, S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).


Exhibit 4




) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )


NOTICE OF DEPOSITION To: COUNSEL OF RECORD


Please take notice that pursuant to Rule 30 of the Federal Rules of Civil Procedure,

counsel for Attorney General Eric H. Holder, Jr., Defendant in the above-styled and numbered

cause of action, will take the deposition of Major Forrest Mitchell upon oral examination on

Friday, June 15, beginning at 9:30 a.m., and continuing thereafter as needed, at the United

States Attorney’ Office, 816 Congress Avenue, Suite 1000, Austin, Texas 78701; Phone: (512)

916-5858. This deposition shall be recorded by stenographic means and shall take place before a

notary public or other person authorized by law to administer oaths. The Attorney General may

also videotape the deposition noticed above.

The above deponent shall be required to produce all documents in her custody,

possession, or control that is responsive to the enclosed Attachment A by June 2, 2012.

You are invited to attend and examine the witness.

Date: June 12, 2012

Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia Civil Rights Division

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


Attachment A

DEFINITIONS AND INSTRUCTIONS





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

identification requirements.

3. The “Office of the Texas Attorney General” means the civil and defense litigation

divisions, the criminal justice divisions, and the Special Investigations Unit, including,

employees, staff, interns, representatives, designees, agents, or any persons acting or purporting

to act on behalf of the Attorney General of Texas.

4. “Voter fraud” is defined to be synonymous in meaning and scope as the term is

set forth in the Texas Election Code, and includes, but is not limited to Chapter 64, Voting

Procedures, and § 64.012 which deals with illegal voting.

5. “Person,” unless otherwise specified, shall mean and include natural persons,

corporations, firms, partnerships, proprietorships, associations, trusts, estates, government

bodies, government agencies and commissions, and any other organization or entity. Whenever

reference is made to a person, it includes any and all of such person’s predecessors in office or

position, past or present principals, employees, agents, attorneys, consultants, contractors, and

other representatives.







nature and in whatever form, including all non-identical copies and drafts thereof, all copies

bearing any notation or mark not found on the original, and all deleted or erased documents that

may be retrieved from hard drives, floppy disks, flash drives, electronic back-up files, or any

other back-up system.

7. “Communication” means any transmission of information by oral, graphic,

written, pictorial, electronic, or other perceptible means, including by document, or later

memorialized in a document, including email, text messages, memoranda of conversations,

correspondence, data processing, pictures, or recordings. All communications produced shall

include documents sufficient to identify all email addresses, telephone numbers, pager or

blackberry numbers, or other personal identifying characteristic of any form of electronic

communication used by any party with respect to all communications responsive to the above

requests.

8. “Database” means any data sets, reports, programs, and files accessible by

computer that contain data that can be processed and/or sorted using standard spreadsheet or

database software, including but not limited to Oracle SQL, Microsoft Access, Microsoft Excel,

Lotus 1-2-3, Quattro Pro, SAS, STATA, and SPSS.

9. Please note that you are required to produce any document in your custody,

possession, or control that is responsive to the below requests, regardless of whether it was

produced on official or personal equipment.


10. If any document requested was at one time in existence, but has been lost,

discarded, destroyed, or transferred to others, please identify the following information with

respect to each such document: its title, date, author(s), sender(s), recipient(s), subject matter, the

circumstances under which it has become unavailable, and, if known, its current location and

custodian.








conversation.

12. The terms “and,” “or,” and “and/or” shall be construed 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.

DOCUMENTS

(1) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, and other Texas state executive offices and agencies, concerning any or all reasons, justifications, rationales, interests, or purposes in enacting S.B.14.


between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any complaints of Voter Fraud that were either referred, reviewed, or initiated by the Office of the Texas Attorney General, that occurred in the State of


Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any investigations of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any prosecutions of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any convictions of Voter fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any plea agreements or fines of Voter fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


(7) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, concerning Voter Fraud and the sources, history, and drafting of S.B. 14.


between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, concerning Voter Fraud and the introduction, consideration, and passage of S.B. 14.


between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, relating to Voter Fraud and the implementation of S.B. 14, plans to implement S.B. 14, or plans related to S.B. 14 that were considered but not adopted.


between the Office of the Texas Attorney General, the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, and other Texas state executive offices and agencies, and any federal agency, relating to Voter Fraud and inquiries, questions, or concerns regarding the effect of S.B. 14 on minority voters, responses to such inquiries, and any calculations, reports, audits, estimates, projections, assessments or other analyses of the effect that S.B. 14 will impose upon minority voters.

(11) All documents and communications between the Office of the Texas Attorney

General and members of the public, private organizations, and governmental entities relating to Voter Fraud and inquiries, questions, or concerns regarding S.B. 14 (82nd Legislature), S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).

(12) All documents produced in response to any requests received pursuant to Texas

Public Information Act, Texas Government Code chapter 552, relating to Voter Fraud and S.B. 14 (82nd Legislature), S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).

(13) All public statements the Office of the Texas Attorney General has made about Voter

Fraud related to S.B. 14, S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).


Exhibit 5


PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT’S PAGE 1

FIRST SET OF REQUESTS FOR PRODUCTION

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________§

STATE OF TEXAS §

§

Plaintiff, § Case No. 1:12-CV-00128

§

vs. §

§ (RMC, DST, RLW)

ERIC H. HOLDER, JR., § Three-Judge Court

Attorney General of the United States, §

§

§

Defendant. §

____________________________________§

PLAINTIFF’S OBJECTIONS AND RESPONSES TO

DEFENDANT’S FIRST SET OF REQUESTS FOR PRODUCTION

TO: Defendant ERIC H. HOLDER, JR., Attorney General of the United States, by

and through his attorney of record, Elizabeth Stewart Westfall, US Department of

Justice, Civil Rights Division, Voting Section, 950 Pennsylvania Avenue, N.W.,

NWB-Room 7202, Washington D.C. 20530.

Plaintiff the State of Texas (“Plaintiff”) serves these Objections and

Responses to Defendants’ First Set of Requests for Production under Federal Rule of

Civil Procedure 34.

GENERAL OBJECTIONS

Plaintiff objects to each Request: (1) insofar as it calls for the production of

documents not in Plaintiff’s possession, custody, or control; (2) insofar as it calls for

the production of documents that were prepared for or in anticipation of litigation,

constitute attorney work product, contain attorney-client communications, or are

otherwise privileged; (3) insofar as it calls for the production of documents which

are publicly available or otherwise equally available and/or uniquely available or




equally available from third parties; (4) insofar as it calls for the production of

documents that do not specifically refer to the events which are the subject matter

of this litigation; and (5) insofar as it calls for the production of documents which

are neither relevant to the subject matter of this litigation nor reasonably

calculated to lead to the discovery of admissible evidence.

The inadvertent production or disclosure of any privileged documents or

information shall not constitute or be deemed to be a waiver of any applicable

privilege with respect to such document or information (or the contents or subject

matter thereof) or with respect to any other such document or discovery now or

hereafter requested or provided. Plaintiff reserves the right not to produce

documents that are in part protected by privilege, except on a redacted basis, and to

require the return of any document (and all copies thereof) inadvertently produced.

Plaintiff likewise does not waive the right to object, on any and all grounds, to (1)

the evidentiary use of documents produced in response to these requests; and (2)

discovery requests relating to those documents.

Plaintiff submits these responses and objections without conceding the

relevancy or materiality of the subject matter of any request or of any document, or

that any responsive materials exist.

Plaintiff’s responses and objections are not intended to be, and shall not be

construed as, agreement with Plaintiff’s characterization of any facts,

circumstances, or legal obligations. Plaintiff reserves the right to contest any such

characterization as inaccurate. Plaintiff also objects to the Requests to the extent




they contain any express or implied assumptions of fact or law concerning matters

at issue in this litigation.

The responses and objections contained herein are made on the basis of

information now known to Plaintiff and are made without waiving any further

objections to or admitting the relevancy or materiality of any of the information

requested. Plaintiff’s investigation, discovery and preparation for proceedings are

continuing and all answers are given without prejudice to Plaintiff’s right to

introduce or object to the discovery of any documents, facts or information

discovered after the date hereof.

Plaintiff will provide its responses based on terms as they are commonly

understood, and consistent with the Federal Rules of Civil Procedure. Plaintiff

objects to and will refrain from extending or modifying any words employed in the

requests to comport with expanded definitions or instructions.




OBJECTIONS AND RESPONSES TO REQUEST FOR PRODUCTION

REQUEST FOR PRODUCTION NO. 1:

All documents identified or relied upon in responding to United States’ First Set of

Interrogatories (March 20, 2012).

RESPONSE:

Plaintiff objects to this request as overly broad, unduly burdensome, vague,

ambiguous, and not reasonably specific insofar as it requests documents “relied

upon” in responding to the United States’ interrogatories. Plaintiff objects to the

extent the request seeks the production of documents that are not relevant or likely

to lead to the discovery of admissible evidence. Plaintiff further objects to the

extent that this request calls for the production of documents subject to attorney-

client privilege, legislative privilege, deliberative process privilege, and attorney

work-product protection. Plaintiff objects to this request on the ground that it seeks

documents and information protected from disclosure by Texas Government Code §

323.017. Plaintiff objects to this request to the extent that it calls for the production

of documents within the control of third parties, including independent officers of

the State of Texas, whose documents are not within Plaintiff’s possession, custody,

or control.

Subject to and without waiving the foregoing objections, Plaintiff will produce

relevant, non-privileged documents that are responsive to this request on a rolling

basis as they become available.


All documents related to the sources, drafting, development, or analysis of S.B. 14

and the procedural sequence of introduction, consideration, and enactment of S.B.

14.

RESPONSE:

Plaintiff objects to this request as overly broad and unduly burdensome

insofar as it requests documents “related to” S.B. 14. Plaintiff objects to this

request as overly broad, unduly burdensome, vague, and not reasonably specific

insofar as it requests documents related to the “sources, drafting, development, or

analysis of S.B. 14.” Plaintiff objects to this request on the ground that documents

showing the “procedural sequence of introduction, consideration, and enactment of

S.B. 14” are publicly available and equally accessible to Defendant. Plaintiff objects

to the extent the request seeks the production of documents that are not relevant or

likely to lead to the discovery of admissible evidence. Plaintiff objects to the extent




this request calls for the production of documents that implicate legislative

privilege. Plaintiff also objects to the extent that this request calls for the

production of documents subject to the attorney-client privilege, deliberative process

privilege, or the attorney work-product doctrine. Plaintiff objects to this request on

the ground that it seeks documents and information protected from disclosure by

Texas Government Code § 323.017. Plaintiff objects to this request to the extent

that it calls for the production of documents within the control of third parties,

including independent officers of the State of Texas, whose documents are not

within Plaintiff’s possession, custody, or control.





All documents 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, the Attorney General, Legislators, and Texas county election

officials, related to the drafting, proposing, development, or plans to implement S.B.

14.

RESPONSE:


and not reasonably calculated to lead to the discovery of admissible evidence.

Plaintiff objects to the extent this request calls for the production of documents

subject to legislative privilege and deliberative process privilege. Plaintiff also

objects to the extent that this request calls for the production of documents subject

to the attorney-client privilege or the attorney work-product doctrine. Plaintiff

objects to this request on the ground that it seeks documents and information

protected from disclosure by Texas Government Code § 323.017. Plaintiff objects to

this request to the extent that it calls for the production of documents within the

control of third parties, including independent officers of the State of Texas, whose

documents are not within Plaintiff’s possession, custody, or control. Plaintiff

further objects to the request for documents “presented to, produced by, transmitted

to, or relied upon by . . . Texas county election officials” because those individuals’

documents are not within Plaintiff’s possession, custody, or control.








All documents related to any and all alternatives to S.B. 14 or amendments to S.B.

14 that were presented to, or considered, assessed, or reviewed by any Legislator

during the drafting or consideration of S.B. 14.

RESPONSE:



Plaintiff objects to this request on the ground that it calls for the production of

documents subject to legislative privilege. Plaintiff also objects to the extent that

this request calls for the production of documents subject to the attorney-client

privilege or the attorney work-product doctrine. Plaintiff objects to this request on

the ground that it seeks documents and information protected from disclosure by

Texas Government Code § 323.017. Plaintiff objects to the request for documents

“presented to, or considered, assessed, or reviewed by any Legislator” on the ground

that it seeks documents within the control of third parties, including independent

officers of the State of Texas, whose documents are not within Plaintiff’s possession,

custody, or control. Plaintiff objects to this request to the extent it encompasses

documents publicly available and equally accessible to Defendant.





The State’s voter registration database, driver license database, personal

identification card database, and concealed handgun license database in a format

agreed upon by the parties, along will all available underlying data necessary for

purposes of comparing the data in these databases against each other and the

supplemental information necessary to render information reasonably usable to

undertake an analysis of those data.

RESPONSE:



Plaintiff objects to this request on the ground that it seeks information and

documents protected from disclosure by privacy laws. Plaintiff objects to the extent

the request presumes that the databases in question may be accurately or reliably

compared against each other.





relevant non-privileged documents that are responsive to this request to the extent

permitted by law on a rolling basis as they become available.


Databases used by the State to produce two matches of registered-voter data

against data sources maintained by the State’s Department of Public Safety to the

Attorney General on September 7, 2011; October 4, 2011; and January 12, 2012.

RESPONSE:


and not reasonably calculated to lead to the discovery of admissible evidence insofar

as it seeks production of “databases” without specifying what data is requested.

Plaintiff objects to this request on the ground that it seeks information and

documents protected from disclosure by privacy laws. Plaintiff objects to this

request to the extent it assumes that the databases in question are capable of

capturing data as it existed on any specific date.


relevant non-privileged documents that are responsive to this request to the extent

permitted by law on a rolling basis as they become available.


All documents related to the factual allegation in paragraph 33 of the First

Amended Complaint (Doc. 25) that “Texas’s Voter-ID law was not enacted with the

purpose of disenfranchising minority voters,” including but not limited to each and

every reason, justification, rationale, interest, or purpose related to the enactment

of S.B. 14 and the nexus between any or all of the purposes and S.B. 14.

RESPONSE:

Plaintiff objects to this request to the extent the information sought is overly

broad, unduly burdensome, vague, ambiguous, and not reasonably specific. Plaintiff

objects to the extent the request seeks the production of documents that are not

relevant or likely to lead to the discovery of admissible evidence. Plaintiff also


to legislative privilege, deliberative process privilege, attorney-client privilege, or

the attorney work-product doctrine. Plaintiff objects to this request on the ground

that it seeks documents and information protected from disclosure by Texas

Government Code § 323.017. Plaintiff objects to this request on the ground that it

calls for the production of documents within the control of third parties, including




independent officers of the State of Texas, whose documents are not within

Plaintiff’s possession, custody, or control.





All documents related to the factual allegations in paragraph 36 of the First

Amended Complaint (Doc. 25) that S.B. 14 imposes a minor inconvenience on

voters.

RESPONSE:

Plaintiff objects to this request to the extent the information sought is overly

broad, unduly burdensome, vague, ambiguous, and not reasonably specific. Plaintiff

objects to the extent the request seeks the production of documents that are not

relevant or likely to lead to the discovery of admissible evidence. Plaintiff also



the attorney work-product doctrine. Plaintiff objects to this request on the ground

that it seeks documents and information protected from disclosure by Texas

Government Code § 323.017. Plaintiff objects to this request on the ground that it

calls for the production of documents within the control of third parties, including

independent officers of the State of Texas, whose documents are not within

Plaintiff’s possession, custody, or control. Plaintiff further objects to this request as

unduly burdensome and premature in light of the fact that discovery is still

ongoing.


relevant and non-privileged documents responsive to this request on a rolling basis

as they become available.





All documents related to the factual allegation in Claim One of the First Amended

Complaint (Doc. 25) that S.B. 14 does not have the “effect of denying or abridging

the right to vote on account of race or color, or because of membership in a language

minority group.”

RESPONSE:


ambiguous, and not reasonably specific. Plaintiff also objects to the extent that this

request calls for the production of documents subject to legislative privilege,

deliberative process privilege, attorney-client privilege, or the attorney work-

product doctrine. Plaintiff objects to this request on the ground that it seeks


323.017. Plaintiff objects to this request on the ground that it calls for the

production of documents within the control of third parties, including independent


custody, or control.


relevant and non-privileged documents that are responsive to this request on a

rolling basis as they become available.


All documents related to communications between, among, or with Legislators,

their staff, lobbyists, groups, organizations and other members of the public

concerning the introduction, enactment, or implementation of S.B. 14.

RESPONSE:

Plaintiff objects to this request on the ground that it calls for the production

of documents subject to legislative privilege. Plaintiff objects to the extent this

request calls for the production of documents subject to deliberative process

privilege, attorney-client privilege, and the attorney work-product doctrine.

Plaintiff objects to this request on the ground that it seeks documents and

information protected from disclosure by Texas Government Code § 323.017.


documents within the control of third parties, including independent officers of the

State of Texas, whose documents are not within Plaintiff’s possession, custody, or

control.








All documents related to any calculations, reports, audits, estimates, projections, or

other analyses of the effect that S.B. 14 will impose upon minority voters, on voters

on account of race or color, or on voters who members of a language minority group.

RESPONSE:















All documents related to plans to implement and administer the issuance of

“election identification certificates” established by S.B. 14.

RESPONSE:









officers of the State of Texas, whose documents, communications, and deliberations

are not within Plaintiff’s possession, custody, or control. Plaintiff objects to this




request to the extent it encompasses documents publicly available and equally

accessible to Defendant.

Subject to and notwithstanding the foregoing objections, Plaintiff will

produce relevant, non-privileged documents that are responsive to this request on a

rolling basis as they become available.


All documents that list or otherwise identify any and all forms of photo

identification issued by the State.

RESPONSE:


ambiguous, and not reasonably calculated to lead to the discovery of admissible

evidence. Plaintiff objects to this request to the extent it seeks documents and

information protected from disclosure by Texas Government Code § 323.017.

Plaintiff objects to this request to the extent it calls for the production of documents

within the control of third parties whose documents are not within Plaintiff’s

possession, custody, or control. Plaintiff further objects to this request to the extent

it encompasses documents publicly available and equally accessible to Defendant.

Subject to and notwithstanding the foregoing objections, Plaintiff will

produce relevant documents that are responsive to this request on a rolling basis as

they become available.


All documents related to any and all allegations concerning (a) in-person voter

impersonation or other in-person voter fraud that occurred in the State of Texas

from January 1, 2002, to the present and (b) instances of voting in Texas by persons

who are not citizens of the United State from January 1, 2002, to the present.

RESPONSE:



evidence. Plaintiff also objects to the extent that this request calls for the

production of documents subject to legislative privilege, deliberative process

privilege, attorney-client privilege, or the attorney work-product doctrine. Plaintiff

objects to this request to the extent it seeks documents and information protected

from disclosure by Texas Government Code § 323.017. Plaintiff objects to this

request on the ground that it calls for the production of documents within the




control of third parties, including independent officers of the State and local

governments, whose documents are not within Plaintiff’s possession, custody, or

control.





All documents related to any calculations, reports, audits, estimates, projections, or

other analyses of all activities that a person who is a registered voter, but does not

have the requisite identification, must complete in order to obtain the

documentation necessary to cast a valid ballot pursuant to S.B. 14.

RESPONSE:

Plaintiff objects to this request as duplicative, overly broad, unduly

burdensome, vague, ambiguous, and not reasonably calculated to lead to the

discovery of admissible evidence. Plaintiff also objects to the extent that this



product doctrine. Plaintiff objects to this request to the extent it seeks documents

and information protected from disclosure by Texas Government Code § 323.017.


documents within the control of third parties whose documents are not within

Plaintiff’s possession, custody, or control. Plaintiff objects to this request to the

extend it encompasses documents publicly available and equally accessible to

Defendant.





All documents related to any reports, estimates, projections, or other analyses of the

impact that S.B. 14, or other proposals to require voter applicants or voters to

produce photo identification, will or may have on voter turnout or voter registration.

RESPONSE:


ambiguous, and not reasonably specific. Plaintiff objects to the term “other




proposals” as vague, undefined, and not reasonably limited in time or scope.

Plaintiff also objects to the extent that this request calls for the production of

documents subject to legislative privilege, deliberative process privilege, attorney-

client privilege, or the attorney work-product doctrine. Plaintiff objects to this

request to the extent it seeks documents and information protected from disclosure

by Texas Government Code § 323.017. Plaintiff objects to this request on the

ground that it calls for the production of documents within the control of third

parties whose documents are not within Plaintiff’s possession, custody, or control.

Plaintiff objects to this request to the extend it encompasses documents publicly

available and equally accessible to Defendant.





All documents related to any reports, estimates, projections, or other analyses of the

impact that S.B. 14 will or may have on rates of use of and acceptance of provisional

ballots.

RESPONSE:









control of third parties whose documents are not within Plaintiff’s possession,






All documents related to implementation of S.B. 14 and training, voter education,

and outreach concerning S.B. 14, including but not limited to training of county

election officials, state agencies, and election-related organization or associations,;

voter education; and mobile outreach or any other effort to provide voters who not




possess requisite photo identification under S.B. 14 with an election identification

certificate or other form of identification accepted under S.B. 14.

RESPONSE:









control of third parties whose documents are not within Plaintiff’s possession,

custody, or control. Plaintiff objects to this request as unduly burdensome and

premature in light of the fact that discovery is ongoing.





All documents related to the consideration of S.B. 362 (81st Legislature) and H.B.

218 (80th Legislature).

RESPONSE:



evidence. The universe of documents “related to the consideration” of any bill,

particularly bills considered in previous legislatures, is incalculably large and

cannot possibly be gathered, inspected, or produced by Plaintiff. Plaintiff also



the attorney work-product doctrine. Plaintiff objects to this request to the extent it

seeks documents and information protected from disclosure by Texas Government

Code § 323.017. Plaintiff objects to this request on the ground that it calls for the



custody, or control. Plaintiff objects to this request to the extent it encompasses

documents publicly available and equally accessible to Defendant. Plaintiff objects

to the request for documents related to H.B. 218 as irrelevant.







Dated: March 30, 2012 Respectfully Submitted,

FOR THE PLAINTIFF:

GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

/s/ Jonathan F. Mitchell

JONATHAN F. MITCHELL

Solicitor General

ADAM W. ASTON

ARTHUR C. D’ANDREA

JAMES P. SULLIVAN

Assistant Solicitors General

Office of the Attorney General

P.O. Box 12548, Capitol Station

209 W. 14th Street

Austin, Texas 78701

(512) 936-1695

Attorneys for the State of Texas





I certify that on March 30, 2012, I served the foregoing by electronic mail on the following counsel of record: Elizabeth Stewart Westfall Jennifer Lynn Maranzano David J. Freeman Bruce I. Gear U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC 20530 (202) 305-7766/Fax: (202) 307-3961 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Counsel for the United States Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX 77068 (281) 580-6310 Email: [email protected] J. Gerald Hebert Attorney at Law 191 Somerville Street, #405 Alexandria, VA 22304 Telephone: 703-628-4673 [email protected] Counsel for Eric Kennie, Anna Burns, Michael Montez Penny Pope, Marc Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon Mark A. Posner LAWYERS' COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW, Suite 400 Washington, DC 20005 (202) 307-1388 Email: [email protected]




Ezra D. Rosenberg Admitted Pro Hac Vice DECHERT LLP 902 Carnegie Center, Suite 500 Princeton, NJ 08540 (609) 955-3200/Fax: (609) 955-3259 Email: [email protected] Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives Ryan Haygood Natasha M. Korgaonkar Leah C. Aden NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York 10013 (212) 965-2200 (212) 226-7592 Email: [email protected] Email: [email protected] Email: [email protected] Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams

/s/ Jonathan F. Mitchell JONATHAN F. MITCHELL

Solicitor General


Exhibit 6


P O S T O F F I C E B O X 1 2 5 4 8 , A U S T I N , T E X A S 7 8 7 1 1 - 2 5 4 8 T E L : ( 5 1 2 ) 4 6 3 - 2 1 0 0 W E B :

W W W . T E X A S A T T O R N E Y G E N E R A L . G O V An Equal Employment Opportunity Employer · Printed on Recycled Paper

JOHN W. MCKENZIE, III SPECIAL COUNSEL TO THE ATTORNEY GENERAL

(512) 936-2155

[email protected]

June 7, 2012 Via Electronic Mail Bruce Gear Department of Justice Voting Section - NWB 950 Pennsylvania Ave, NW Washington, DC 20530

Re: Texas v. Holder, Civil Action No. 1:12-cv-128 (D.D.C.) Mr. Gear:

I write in response to the proposal set forth in your letter dated June 7, 2012 regarding the deposition of Forrest Mitchell currently noticed for June 8, 2012.

The request in Exhibit A to Mr. Mitchell’s Notice of Deposition parallels a

request served on the State in March 2012. The State properly objected to the Department of Justice’s March 2012 request by serving its objections on the Department of Justice on March 30, 2012. At no time prior to June 7, 2012 did the Department of Justice raise its concerns as to the State’s properly asserted objections. And despite the Department of Justice’s assertions to the contrary, the State was under no obligation to provide additional documents in response to a request to which it had properly objected at the time Mr. Mitchell was disclosed. Although the Department of Justice has filed five motions to compel over the past two months, it has never moved to compel the production of documents relating to Voter Fraud. The deadline for discovery motions has now passed. See Order (Doc. 137) at 5.

Major Mitchell properly objected to documents requested in Exhibit A of his

Notice of Deposition and his request that the Department of Justice narrow its request is appropriate. Among other things, Exhibit A to Mr. Mitchell’s Notice requests:

All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas


Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any complaints of Voter Fraud that were either referred, reviewed, or initiated by the Office of the Texas Attorney General, that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General. (emphasis added) The foregoing request is incredibly broad. Many of the materials that it

seeks are privileged under the attorney-client, law enforcement, or legislative privileges. The non-privileged materials responsive to the request are not probative of facts known to the Legislature when it enacted S.B. 14. And the materials requested have no bearing at all on any alleged discriminatory effect of S.B. 14.

Mr. Mitchell and the State have properly objected to the Department of Justice’s Voter Fraud requests because they are overbroad, unduly burdensome, and of marginal relevance.1 The Department of Justice’s requests relating to Voter Fraud call for the production of approximately 300 case files containing over 10,000 pages of materials. Many of the case files are stored in an offsite warehouse and are not readily accessible to Mr. Mitchell. Nevertheless, the State has produced three spreadsheets maintained by Mr. Mitchell in the ordinary course of his duties that summarize Voter Fraud investigations and referrals.

Mr. Mitchell will produce to the Department of Justice convictions and indictments for Voter Fraud from the time period identified in Exhibit A to Mr. Mitchell’s Notice by 6:00 p.m on June 8, 2012. Mr. Mitchell will also produce another spreadsheet, redacted of personal identifying information, for 309 Voter Fraud investigations that he maintains in the ordinary course of his duties. We continue to assert our objections as to the production of over 10,000 pages of largely irrelevant documents and maintain our belief that a request calling for such a production far exceeds the scope of discovery contemplated by the Federal Rules of Civil Procedure. Sincerely, John W. McKenzie, III Cc: All counsel of record 1 The Department of Justice responded to the State’s requests for information on Voter Fraud with one entry on its privilege log describing the document as “Department of Justice Federal Bureau of Investigations.” Department of Justice May 18, 2012 Privilege Log.


Exhibit 7


1


STATE OF TEXAS Case No. 1:12-cv-00128 RMC-DST-RLW Plaintiff, vs. ERIC H. HOLDER, JR., in his official Capacity as Attorney General of the United States Defendant.

OBJECTIONS AND RESPONSES TO EXHIBIT A OF MAJOR MITCHELL’S NOTICE OF DEPOSITION

TO: Defendant ERIC H. HOLDER, JR., Attorney General of the United

States, by and through his attorney of record, Elizabeth Stewart Westfall, US Department of Justice, Civil Rights Division, Voting Section, 950 Pennsylvania Avenue, N.W., NWB-Room 7202, Washington D.C. 20530.

Major Forrest Mitchell serves these Objections and Responses to Exhibit

A of Major Mitchell’s Notice of Deposition.


(1) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, and other Texas state executive offices and agencies, concerning any or all reasons, justifications, rationales, interests, or purposes in enacting S.B.14.

RESPONSE: Major Mitchell objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the


2

discovery of admissible evidence. Major Mitchell also objects to the extent that this request calls for the production of documents subject to legislative privilege, deliberative process privilege, law enforcement privilege, attorney-client privilege, or the attorney work-product doctrine. Major Mitchell objects to this request on the ground that it calls for the production of documents within the control of third parties, including independent officers of the State and local governments, whose documents are not within Major Mitchell’s possession, custody, or control. Major Mitchell further objects to the extent disclosure of information in his possession, custody, or control would violate state or federal law.

Subject to and without waiving the foregoing objections, Plaintiff has produced three spreadsheets summarizing voter fraud investigations at bates range TX_00056816-56834.

(2) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any complaints of Voter Fraud that were either referred, reviewed, or initiated by the Office of the Texas Attorney General, that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.

RESPONSE: Major Mitchell objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Major Mitchell also objects to the extent that this request calls for the production of documents subject to legislative privilege, deliberative process privilege, law enforcement privilege, attorney-client privilege, or the attorney work-product doctrine. Major Mitchell objects to this request on the ground that it calls for the production of documents within the control of third parties, including independent officers of the State and local governments, whose documents are not within Major Mitchell’s possession, custody, or control. Major Mitchell further objects to the extent disclosure of information in his possession, custody, or control would violate state or federal law.



3

(3) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any investigations of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.



(4) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any prosecutions of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.

RESPONSE: Major Mitchell objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Major Mitchell also objects to the extent that this request calls for the production of documents subject to legislative privilege, deliberative process privilege, law enforcement privilege, attorney-client privilege, or the attorney work-product doctrine. Major Mitchell objects


4

to this request on the ground that it calls for the production of documents within the control of third parties, including independent officers of the State and local governments, whose documents are not within Major Mitchell’s possession, custody, or control. Major Mitchell further objects to the extent disclosure of information in his possession, custody, or control would violate state or federal law.


(5) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any convictions of Voter fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.



(6) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any plea agreements or fines of Voter fraud that occurred in


5

the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.



(7) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, concerning Voter Fraud and the sources, history, and drafting of S.B. 14.



6


(8) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, concerning Voter Fraud and the introduction, consideration, and passage of S.B. 14.



(9) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, relating to Voter Fraud and the implementation of S.B. 14, plans to implement S.B. 14, or plans related to S.B. 14 that were considered but not adopted.

RESPONSE: Major Mitchell objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Major Mitchell also objects to the extent that this request calls for the production of documents subject to legislative privilege, deliberative process privilege, law enforcement privilege, attorney-client privilege, or the attorney work-product doctrine. Major Mitchell objects to this request on the ground that it calls for the production of documents


7

within the control of third parties, including independent officers of the State and local governments, whose documents are not within Major Mitchell’s possession, custody, or control. Major Mitchell further objects to the extent disclosure of information in his possession, custody, or control would violate state or federal law.


(10) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Governor, the office of the Lt. Governor, the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, and other Texas state executive offices and agencies, and any federal agency, relating to Voter Fraud and inquiries, questions, or concerns regarding the effect of S.B. 14 on minority voters, responses to such inquiries, and any calculations, reports, audits, estimates, projections, assessments or other analyses of the effect that S.B. 14 will impose upon minority voters.



(11) All documents and communications between the Office of the Texas Attorney General and members of the public, private organizations, and governmental entities relating to Voter Fraud and inquiries, questions, or concerns regarding S.B. 14 (82nd Legislature), S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).

RESPONSE: Major Mitchell objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the


8

discovery of admissible evidence. Major Mitchell also objects to the extent that this request calls for the production of documents subject to legislative privilege, deliberative process privilege, law enforcement privilege, attorney-client privilege, or the attorney work-product doctrine. Major Mitchell objects to this request on the ground that it calls for the production of documents within the control of third parties, including independent officers of the State and local governments, whose documents are not within Major Mitchell’s possession, custody, or control. Major Mitchell further objects to the extent disclosure of information in his possession, custody, or control would violate state or federal law.


(12) All documents produced in response to any requests received pursuant to Texas Public Information Act, Texas Government Code chapter 552, relating to Voter Fraud and S.B. 14 (82nd Legislature), S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).



(13) All public statements the Office of the Texas Attorney General has made about Voter Fraud related to S.B. 14, S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).

RESPONSE: Major Mitchell objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Major Mitchell also objects to the extent that this request calls for the production of documents subject to legislative


9

privilege, deliberative process privilege, law enforcement privilege, attorney-client privilege, or the attorney work-product doctrine. Major Mitchell objects to this request on the ground that it calls for the production of documents within the control of third parties, including independent officers of the State and local governments, whose documents are not within Major Mitchell’s possession, custody, or control. Major Mitchell further objects to the extent disclosure of information in his possession, custody, or control would violate state or federal law.



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Respectfully submitted.

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General

JONATHAN F. MITCHELL Solicitor General /s/ Patrick K. Sweeten

PATRICK K. SWEETEN Assistant Attorney General ADAM W. ASTON

Principal Deputy Solicitor General ARTHUR C. D’ANDREA Assistant Solicitor General MATTHEW H. FREDERICK Assistant Attorney General 209 West 14th Street P.O. Box 12548 Austin, Texas 70711-2548 (512) 936-1695


11


I certify that on June 6, 2012, I served the foregoing via email on the following counsel of record: Elizabeth Stewart Westfall David J. Freeman Bruce I. Gear Jennifer Lynn Maranzano U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC 20530 (202) 305-7766/Fax: (202) 307-3961 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Counsel for the United States Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX 77068 (281) 580-6310 Email: [email protected] J. GERALD HEBERT 191 Somerville Street, #405 Alexandria, VA 22304 Telephone: 703-628-4673 Email: [email protected] Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasy, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon JOHN K. TANNER 3743 Military Road, NW Washington, DC 20015 202-503-7696 Email: [email protected] MOFFATT LAUGHLIN McDONALD NANCY GBANA ABUDU KATIE O’CONNOR American Civil Liberties Union Foundation, Inc. 230 Peachtree Street, NW Suite 1440 Atlanta, Georgia 30303-1227 (404) 523-2721/(404) 653-0331 (fax) Email: [email protected] Email: [email protected]


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Email: [email protected] LISA GRAYBILL REBECCA ROBERTSON American Civil Liberties Union Foundation of Texas 1500 McGowan Street Houston, Texas 77004 (713) 942-8146 Email: [email protected] Email: [email protected] PENDA HAIR KUMIKI GIBSON Advancement Project 1220 L Street, NW, Suite 850 Washington, DC 20005 (202) 728-9557 Email: [email protected] Email: [email protected] Counsel for Texas Legislative Black Caucus, the League of Women Voters of Texas, the Justice Seekers, Reverend Peter Johnson, Reverend Ronald Wright and Donald Wright Mark A. Posner LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW, Suite 400 Washington, DC 20005 (202) 307-1388 Email: [email protected] Ezra D. Rosenberg Pro Hac Vice Michelle Hart Yeary DECHERT LLP 902 Carnegie Center, Suite 500 Princeton, NJ 08540 (609) 955-3200/Fax: (609) 955-3259 Email: [email protected] Email: [email protected] Ian Vandewalker Pro Hac Vice Myrna Perez Wendy Weiser THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 Tel: (646) 292-8362 Fax: (212) 463-7308 Email: [email protected] Email: [email protected] Email: [email protected] Myrna Perez Pro Hac Vice Ian Vandewalker Pro Hac Vice THE BRENNAN CENTER FOR JUSTICE AT


13

NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 (646) 292-8329 / (212)463-7308 (fax) Email: [email protected] Email: [email protected] Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, Maryland 21215-3297 (410) 580-5120 (phone) Email: [email protected] Robert S. Notzon The Law Office of Robert Notzon 1507NuecesSt. Austin, Texas 78701 (512) 474.7563 (phone) Email: [email protected] Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 98209 (210) 392-2856 (phone) Email: [email protected] Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives Ryan Haygood Pro Hac Vice Natasha M. Korgaonkar Leah C. Aden Debo P. Adegbile Dale E. Ho NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York 10013 (212) 965-2200 / (212) 226-7592 (fax) Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Douglas H. Flaum Michael B. de Leeuw One New York Plaza New York, New York 10004-1980 (212) 859-8000


14

Email: [email protected] Email: [email protected] Email: [email protected] Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams Nina Perales Amy Pedersen MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476 / 210-224-5382 (fax) Email: [email protected] Email: [email protected] Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez

/s/ Patrick K. Sweeten PATRICK K. SWEETEN


Exhibit 8


U.S. Department of Justice

Civil Rights Division Voting Section - NWB 950 Pennsylvania Ave, NW Washington, DC 20530

June 7, 2012

Patrick Sweeten Office of the Attorney General 209 West 14th Street 8th Floor Austin, TX 78701 Re: Texas v. Holder, Civil Action No 1:12-cv-00128 (D.D.C.) Dear Mr. Sweeten: This is a follow-up to our phone call today, during which we discussed the production of documents for Major Forrest Mitchell, who is scheduled for deposition on Friday, June 8, 2012. When you identified Major Mitchell on May 21, 2012, in the Plaintiff’s Supplemental Initial Disclosures, you were also obligated to supplement the Plaintiff’s document production pertaining to Major Mitchell. At a minimum, Major Mitchell was obligated to produce by June 2, 2012 all non-privileged documents responsive to Attachment A of his Notice of Deposition.

Furthermore, to the extent that the undisclosed documents relate to allegations of voter fraud, counsel for the Attorney General direct your attention to Request No. 14 from the Attorney General’s First Set of Requests for Production, which asked for, “[a]ll documents related to any and all allegations concerning (a) in-person voter impersonation or other in-person voter fraud that occurred in the State of Texas from January 1, 2002, to the present and (b) instances of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present.” The State’s responses to this request were due on March 30, 2012. Texas was further ordered by the court on May 7 to complete its responses to the Attorney General’s requests by May 11, 2012. (ECF 107). You have requested that we identify what documents we think we need in response to the spreadsheet that the State has provided. That request is not acceptable.

However, we are prepared to reschedule the deposition from this Friday, June 8, to Friday, June 15, at 9:30 a.m., but would require that all non-privileged responsive documents be produced no later than Friday, June 8, 2012, by 6 p.m. ET. Please advise us promptly of your position regarding this matter.


Sincerely,

/s/Bruce I. Gear Bruce I. Gear Attorney Voting Section Cc: All counsel of record


Exhibit 9


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STATE OF TEXAS Case No. 1:12-cv-00128 RMC-DST-RLW Plaintiff, vs. ERIC H. HOLDER, JR., in his official Capacity as Attorney General of the United States Defendant.

OBJECTIONS AND RESPONSES TO EXHIBIT A OF MAJOR MITCHELL’S AMENDED NOTICE OF DEPOSITION

TO: Defendant ERIC H. HOLDER, JR., Attorney General of the United

States, by and through his attorney of record, Elizabeth Stewart Westfall, US Department of Justice, Civil Rights Division, Voting Section, 950 Pennsylvania Avenue, N.W., NWB-Room 7202, Washington D.C. 20530.

Major Forrest Mitchell serves these Objections and Responses to Exhibit

A of Major Mitchell’s Amended Notice of Deposition.


(1) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, and other Texas state executive offices and agencies, concerning any or all reasons, justifications, rationales, interests, or purposes in enacting S.B.14.

RESPONSE: Major Mitchell objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Major Mitchell also objects to the extent that


2

this request calls for the production of documents subject to legislative privilege, deliberative process privilege, law enforcement privilege, attorney-client privilege, or the attorney work-product doctrine. Major Mitchell objects to this request on the ground that it calls for the production of documents within the control of third parties, including independent officers of the State and local governments, whose documents are not within Major Mitchell’s possession, custody, or control. Major Mitchell further objects to the extent disclosure of information in his possession, custody, or control would violate state or federal law.

Subject to and without waiving the foregoing objections, Plaintiff and Major Mitchell have produced materials on voter fraud investigations at bates ranges TX_00056816-56834 and TX-00267733-00269313. Documents responsive to Public Information Act Requests are available at TX-00296962-00298267.

Public testimony from OAG officials on Voter Fraud is available at the following websites:

2008: 1/25/08: House Elections Committee, interim hearing: Eric Nichols testimony timer location: 13:35.06 available at

http://www.house.state.tx.us/video-audio/committee-broadcasts/committee-archives/player/?session=80&committee=240&ram=80125a13

2009: 3/10/09 Senate of the Whole, SB 362. Timer location 1:19:45 PART IV Eric Nichols testimony available at

http://www.senate.state.tx.us/avarchive/?mo=03&yr=2009&lim=100

2009: 4/6/09 - House Election Committee, SB 362. Eric Nichols testimony Timer 11:32:22.6 available at


2010: 6/4/10 - House Election Committee - Interim Hearing. Jay Dyer testimony Timer 2:00:00 available at


2011: 1/25/11 (82R) Senate Committee of the Whole. David Maxwell. Part V. Timer location: 2:27:00 (no testimony. Stated name for recorder only) available at

http://www.senate.state.tx.us/avarchive/?yr=2011&mo=01


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2011: 3/1/11 SB 14 House Voter Fraud select committee, David Maxwell testimony timer location: 4:31:28.5 available at

http://www.house.state.tx.us/video-audio/committee-broadcasts/committee-archives/player/?session=82&committee=485&ram=11030111485

(2) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any complaints of Voter Fraud that were either referred, reviewed, or initiated by the Office of the Texas Attorney General, that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.

RESPONSE: Please see, supra Objections and Responses to Request Number 1.

(3) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any investigations of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


(4) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any prosecutions of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


4


(5) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any convictions of Voter fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


(6) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, related to any plea agreements or fines of Voter fraud that occurred in the State of Texas from January 1, 2002, to the present, including any complaints of voting in Texas by persons who are not citizens of the United States from January 1, 2002, to the present, that were either received by referral, reviewed or initiated by the Office of the Texas Attorney General.


(7) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, concerning Voter Fraud and the sources, history, and drafting of S.B. 14.


(8) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, concerning Voter Fraud and the introduction, consideration, and passage of S.B. 14.


5


(9) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the office of the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, other Texas state executive offices and agencies, and any federal agency, relating to Voter Fraud and the implementation of S.B. 14, plans to implement S.B. 14, or plans related to S.B. 14 that were considered but not adopted.


(10) All documents and communications, including but not limited to those among and between the Office of the Texas Attorney General, the Secretary of State, the Division of Elections, members of the Texas Legislature, the Texas Legislative Council, and other Texas state executive offices and agencies, and any federal agency, relating to Voter Fraud and inquiries, questions, or concerns regarding the effect of S.B. 14 on minority voters, responses to such inquiries, and any calculations, reports, audits, estimates, projections, assessments or other analyses of the effect that S.B. 14 will impose upon minority voters.


(11) All documents and communications between the Office of the Texas Attorney General and members of the public, private organizations, and governmental entities relating to Voter Fraud and inquiries, questions, or concerns regarding S.B. 14 (82nd Legislature), S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).


(12) All documents produced in response to any requests received pursuant to Texas Public Information Act, Texas Government Code chapter 552, relating to Voter Fraud and S.B. 14 (82nd Legislature), S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).



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(13) All public statements the Office of the Texas Attorney General has made about Voter Fraud related to S.B. 14, S.B. 362 (81st Legislature), H.B. 218 (80th Legislature), or H.B. 1706 (79th legislature).



7

Respectfully submitted.

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General

JONATHAN F. MITCHELL Solicitor General /s/ Patrick K. Sweeten

PATRICK K. SWEETEN Assistant Attorney General ADAM W. ASTON

Principal Deputy Solicitor General ARTHUR C. D’ANDREA Assistant Solicitor General MATTHEW H. FREDERICK Assistant Attorney General 209 West 14th Street P.O. Box 12548 Austin, Texas 70711-2548 (512) 936-1695


8


I certify that on June 13, 2012, I served the foregoing via email on the following counsel of record: Elizabeth Stewart Westfall David J. Freeman Bruce I. Gear Jennifer Lynn Maranzano U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC 20530 (202) 305-7766/Fax: (202) 307-3961 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Counsel for the United States Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX 77068 (281) 580-6310 Email: [email protected] J. GERALD HEBERT 191 Somerville Street, #405 Alexandria, VA 22304 Telephone: 703-628-4673 Email: [email protected] Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasy, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon JOHN K. TANNER 3743 Military Road, NW Washington, DC 20015 202-503-7696 Email: [email protected] MOFFATT LAUGHLIN McDONALD NANCY GBANA ABUDU KATIE O’CONNOR American Civil Liberties Union Foundation, Inc. 230 Peachtree Street, NW Suite 1440 Atlanta, Georgia 30303-1227 (404) 523-2721/(404) 653-0331 (fax) Email: [email protected] Email: [email protected]


9

Email: [email protected] LISA GRAYBILL REBECCA ROBERTSON American Civil Liberties Union Foundation of Texas 1500 McGowan Street Houston, Texas 77004 (713) 942-8146 Email: [email protected] Email: [email protected] PENDA HAIR KUMIKI GIBSON Advancement Project 1220 L Street, NW, Suite 850 Washington, DC 20005 (202) 728-9557 Email: [email protected] Email: [email protected] Counsel for Texas Legislative Black Caucus, the League of Women Voters of Texas, the Justice Seekers, Reverend Peter Johnson, Reverend Ronald Wright and Donald Wright Mark A. Posner LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW, Suite 400 Washington, DC 20005 (202) 307-1388 Email: [email protected] Ezra D. Rosenberg Pro Hac Vice Michelle Hart Yeary DECHERT LLP 902 Carnegie Center, Suite 500 Princeton, NJ 08540 (609) 955-3200/Fax: (609) 955-3259 Email: [email protected] Email: [email protected] Ian Vandewalker Pro Hac Vice Myrna Perez Wendy Weiser THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 Tel: (646) 292-8362 Fax: (212) 463-7308 Email: [email protected] Email: [email protected] Email: [email protected] Myrna Perez Pro Hac Vice Ian Vandewalker Pro Hac Vice THE BRENNAN CENTER FOR JUSTICE AT


10

NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 (646) 292-8329 / (212)463-7308 (fax) Email: [email protected] Email: [email protected] Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, Maryland 21215-3297 (410) 580-5120 (phone) Email: [email protected] Robert S. Notzon The Law Office of Robert Notzon 1507NuecesSt. Austin, Texas 78701 (512) 474.7563 (phone) Email: [email protected] Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 98209 (210) 392-2856 (phone) Email: [email protected] Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives Ryan Haygood Pro Hac Vice Natasha M. Korgaonkar Leah C. Aden Debo P. Adegbile Dale E. Ho NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York 10013 (212) 965-2200 / (212) 226-7592 (fax) Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Douglas H. Flaum Michael B. de Leeuw One New York Plaza New York, New York 10004-1980 (212) 859-8000


11

Email: [email protected] Email: [email protected] Email: [email protected] Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams Nina Perales Amy Pedersen MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476 / 210-224-5382 (fax) Email: [email protected] Email: [email protected] Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez

/s/ Patrick K. Sweeten PATRICK K. SWEETEN
