IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA

RENE ROMO, an individual; BENJAMIN WEAVER, an individual; WILLIAM EVERETT WARINNER; an individual; JESSICA BARRETT, an individual; JUNE KEENER, an individual; RICHARD QUINN BOYLAN, an individual; and BONITA AGAN, an individual, Plaintiffs, v. KEN DETZNER, in his official capacity as Florida Secretary of State, and PAM BONDI, in her official capacity as Attorney General of the State of Florida, Defendants.

CASE NO: 2012-CA-00412

THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al. Plaintiffs, v. KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; MICHAEL HARIDOPOLOS, in his official capacity as President of the Florida Senate; THE FLORIDA HOUSE OF REPRESENTATIVES; and DEAN CANNON, in his official capacity as Speaker of the Florida House of Representatives, Defendants. CASE NO: 2012-CA-00490

NON-PARTIES PAT BAINTER, MATT MITCHELL, MICHAEL SHEEHAN, AND DATA TARGETING, INC.S MOTION FOR PROTECTIVE ORDER, REQUEST FOR IN CAMERA REVIEW AND PRIVILEGE LOG

Non-parties Pat Bainter, Matt Mitchell, Michael Sheehan, and Data Targeting, Inc. (collectively Non-parties), by and through undersigned counsel and pursuant to Rules 1.280 and 1.410, Fla. R. Civ. P., U.S. Const. Amend. I, and Art. I, Sec. 23, Fla. Const., move this Court for a protective order, request an in camera review, and provide a privilege log. In support thereof, Non-parties state: BACKGROUND AND FACTS Non-party Pat Bainter is the owner and president of Data Targeting, Inc., a political affairs consulting firm based in Gainesville, Florida. Data Targeting offers a comprehensive suite of consulting services to various entities whose interests and operations are likewise politically oriented, including but not limited to prospective candidates, elected officials, associations and interests groups, political advisors, media organizations, and various corporations and businesses. Guided by decades of research and analysis, Data Targeting assists these entities with general campaign strategy, candidate consulting, issue and opinion polling, electorate and public relations, research and record identification, data analysis and mapping, graphic design, direct mail production, and other contracted services. Data Targetings consulting operation is rooted in a proprietary foundation of database management, opposition research, and strategic analysis of political trends, electoral demographics, voter performance, and other stakeholder data sets.

Because it is a political consultancy, Data Targeting routinely engages in business communication to and from private and elected individuals regarding a range of issues of public importance. Data Targeting has been and continues to provide services to members of the Florida Legislature for matters wholly unrelated to redistricting or issues raised in this case. Data Targeting employs a small team of approximately 10 staff, including Pat Bainter, Matt Mitchell, and Michael Sheehan. Data Targeting and its three employees identified above are Non-parties to the proceedings; they seek protection from the intrusive,

unconstitutional, burdensome and wholly irrelevant discovery in this case. In 2012, the Florida Legislature enacted redistricting plans 1, pursuant to its constitutional duties under Article III, Section 16, of the Florida Constitution. By its own reports, the Florida Legislature based its decisions regarding district lines on an open, interactive, and inclusive redistricting process: On February 10, the Attorney General petitioned the Florida Supreme Court to determine the validity of house and senate districts enacted in Senate Joint Resolution 1176. The Court's March 9 opinion determined that the house plan was valid, but that 8 of 40 senate districts were not valid. After the Legislature revised the senate plan during an extraordinary apportionment session, the Attorney General petitioned the Supreme Court to determine the validity of the revised senate districts in Senate Joint Resolution 2-B. The Court's April 27 opinion determined that the revised senate plan was valid. Congressional and state house redistricting plans were submitted to the United States Department of Justice for preclearance on March 13, and the revised state senate plan was submitted on March 30. The Department of Justice's April 30 letter stated no objection to the new maps. The Florida Senate, Legal Submissions, http://www.flsenate.gov/Session/Redistricting/Legal (last visited Feb. 28, 2013).
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Citizens had free and easy access to the same redistricting data and applications used by legislators and staff. Nearly 5,000 Floridians attended and more than 1,600 provided testimony at 26 public hearings in communities around the state. Thousands more sent comments and feedback via letters, email, voicemail, and social media. At every committee meeting time was reserved for members of the public, representatives of public interest groups, or civil rights advocates to present their ideas. More than 175 publicly submitted redistricting plans were received by the Legislature. Together with all the citizen comments, those plans provided a voluminous collection of specific suggestions and redistricting scenarios for the Legislature to consider. The Florida Senate, About Redistricting, http://www.flsenate.gov/Session/Redistricting/About (last visited Feb. 28, 2013). Like the many Floridians who took an interest in Floridas 2012 redistricting, Non-parties maintained an interest in the redistricting process for its obvious potential to impact its clients and entities who rely on Non-parties services and advice. Plaintiffs, namely the League of Women Voters of Florida, the National Council of La Raza, Common Cause Florida, and a group of individual plaintiffs, challenged the redistricting plans adopted by the Florida Legislature regarding congressional districts in consolidated Case Nos. 2012-CA-00412 and 2012-CA00490 and regarding state senate districts in Case No. 2012-CA-2842. As framed in the complaints, the issue pending before this Court is whether the redistricting plans adopted by the Florida Legislature comport with Floridas new constitutional
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requirements, particularly the standards for legislative intent in establishing congressional and legislative district boundaries which were adopted as constitutional amendments 5 and 6 to the Florida Constitution on November 2, 2010. Amendments 5 and 6, now adopted in the Florida Constitution as Sections 20-21 of Article III, require, in part, that: SECTION 20. Standards for establishing congressional district boundaries.In establishing congressional district boundaries: (a) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory. *** SECTION 21. Standards for establishing legislative district boundaries.In establishing legislative district boundaries: (a) No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory. Art. III, 20-21, Fla. Const. No allegations in the operative complaints allege or otherwise cite or refer to the involvement of Non-parties in the Florida Legislatures redistricting processes. Likewise, the complaints do not assert that

the Florida Legislature reviewed, utilized, considered, or relied upon any information created or communicated by Non-parties in establishing congressional or legislative district boundaries. Plaintiffs sought discovery in this case from the Florida Legislature and were provide with tens of thousands of files which constitute the legislative record, but have been precluded from deposing legislators regarding their individual intent. See Fla. House of Representatives, v. Romo, Case No. 1D12-5280 (Fla. 1st DCA May 22, 2013) Slip Op. at 18-19 (quashing order of circuit court that allowed depositions of legislators and staff members). In October 2012, Non-party Pat Bainter received a subpoena duces tecum in both proceedings below seeking, among other documents, [a]ny communication with any person about: (1) congressional or senate redistricting in Florida in 2012; and (2) congressional or state senate redistricting maps (whole, or partial, completed or draft) that were submitted to or discussed with any legislator, legislative staff members, or any legislative committee or were submitted to or discussed with any person with the intent that the person would convey information to any legislators, staff member, or committee. (emphasis added). Pat Bainter initially participated in a deposition and produced a set of documents considered responsive on November 14, 2012. During his deposition, Non-party Pat Bainter testified that he had no idea who drew the maps or any other

information regarding what the Legislature relied upon in drawing the maps. Following the deposition, in November 2012, Plaintiffs issued identical subpoenas duces tecum to two additional Data Targeting employees, Non-parties Matt Mitchell and Michael Sheehan, and to the records custodian for the company. The November 2012 subpoenas duces tecum sought the same records under similarly broad parameters. On December 4, 2012, Non-parties sought relief in the circuit court from an unreasonably broad and unduly burdensome discovery request. Through a Motion for Order Quashing Subpoena Duces Tecum in consolidated Case Nos. 2012-CA00412 and 2012-CA-00490 and through a similar ore tenus motion in Case No. 2012-CA-2842 offered at the December 19, 2012, hearing (collectively Motions to Quash), Non-parties asserted that the subpoenas duces tecum were unreasonable, oppressive, and amounted to a fishing expedition for information which was irrelevant to the issues before the circuit court. Non-parties argued that no communications between them and a private citizen or other private consultants, could possibly represent legislative intent, which is by Plaintiffs own complaints and the commandment of Floridas constitutional requirements the threshold question in this case. At the hearing on the Motions to Quash on December 19, 2012, this Court addressed briefly the issues of relevance for the discovery sought from Non-

parties, but dismissed the argument against discoverability outright without any justification or showing on the part of the Plaintiffs regarding its relevance. On January 30, 2013, this Court denied the Motions to Quash, but limited the initial scope of production, to start, to communication with members and staff of the Florida Legislature. The order also limited discovery initially to a time period beginning January 1, 2010, a date which significantly precedes both the adoption of the constitutional redistricting requirements in November 2010 and the availability of the census map data supporting redistricting plans that was published in January 2011. The Courts limitation was designed to address the burdens and costs of document research and review, but did not intend and has not had the effect of limiting the scope of relevance or discovery in the documents requested. Notwithstanding continued objections to the significant burdens and costs associated with review of documents for a non-party, Non-parties do not object in principle to disclosure of any and all communication with the Legislature or its staff related specifically to redistricting and have made full disclosure of the limited documents that could be responsive to this portion of Plaintiffs subpeona duces tecum. However, Non-parties are being compelled to produce documents which go beyond any communication with legislators or staff related to the 2012 redistricting maps and process. Now, Plaintiffs are insisting on production of all private

communications Non-parties had related to the 2012 redistricting with an extensive list of other private entities which has been propounded by Plaintiffs with no arguable correlation relevant to the issues in the case at hand. Given the direction of this discovery and orders of the Court, Non-parties seek a protective order precluding production of the confidential documents that are irrelevant to the case as discussed below and request an in camera review of their private communications prior to disclosure. ARGUMENT I. Plaintiffs Subpoenas and this Courts Order requiring production of documents, beyond those regarding communications with legislators or staff, would allow the political persecution of Non-parties simply for participating in the legislative process, thus violating the Non-Parties constitutional right to freely associate and petition the government. Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for ones friends. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J. concurring). Under the guise of deducing legislative history and intent, here the Courts Order perpetuates the metaphor by allowing Plaintiffs that traditionally support the Democratic Party to subpoena material from consultants traditionally associated with the Republican Party only because they are affiliated with the

Republican Party. 2 To be sure, this material is not legislative history. See Fla. House of Rep. v. Romo, ___ So. 3d ___ 2013 WL 2232315, at *7 (Fla. 1st DCA May 22, 2013). Even if it were, cherry-picking legislative history through the discovery process can provide only a slanted view. Republican consultants could easily retaliate in kind, subpoenaing material from the Democratic Plaintiffs or Democratic consultants not parties to the case. Thus, by sanctioning viewpoint discrimination as a quest for legislative intent, the Courts Order threatens to turn the cocktail party into a political food fight. The legislative process will suffer as a result, chilling the free, frank, and frequent exchange of ideas. A. The Courts Order sanctioning viewpoint discrimination has a chilling effect on the Non-parties ability to participate in the legislative process.

Indeed, the Courts Order requiring disclosure of internal deliberations separate and distinct from actual communications with the Florida Legislature and staff would have a chilling effect on Non-parties ability to participate in the legislative process. As the U.S. Supreme Court recognized in NAACP v. State of
2

These Plaintiffs have targeted the Non-parties (and a handful of other consultants) because they are traditionally associated with and have provided services to clients and entities associated with the Republican Party. This deliberate and intentional targeting is evidenced by Plaintiffs issuance of subpoenas to a handful of Republican affiliated consultants out of the 1,600 citizens that provided testimony at 26 public hearings in communities around the state, the thousands of citizens that submitted comments and feedback, and the citizens that submitted more than 175 redistricting plans. See The Florida Senate, About Redistricting, http://www.flsenate.gov/Session/Redistricting/About (last visited Feb. 28, 2013).
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Ala., 357 U.S. 449, 462-63 (1958), the U.S. Constitution protects [e]ffective advocacy of both public and private points of view, particularly controversial ones. The Courts Order would unravel this protection. Most relevant is the First Amendments associational privilege, recently discussed in the context of a discovery dispute by the Ninth Circuit in Perry v. Schwarzenegger, 591 F.3d 1147, 1152 (9th Cir. 2010). There, plaintiffs challenged Proposition 8, which amended the California Constitution to provide that California only recognizes marriage between a man and a woman. Id. Proponents of Proposition 8 intervened. Id. Plaintiffs sought discovery from the proponents specifically internal campaign deliberations and strategy related to Proposition 8. Id. The district court allowed this discovery, denying the proponents request for a protective order. Id. The proponents successfully sought relief from the Ninth Circuit. Id. at 1162-64. The Ninth Circuit reasoned that disclosure of internal campaign information can have a deterrent effect on the free flow of information within campaigns. Id. at 1162-63. According to the Ninth Circuit, [i]mplicit in the right to associate with others [under the First Amendment,] to advance ones shared political beliefs[,] is the right to exchange ideas and formulate strategy and messages, and to do so in private. Id. Compelling disclosure of internal

campaign communications can chill the exercise of these rights, in contravention of the First Amendment. Id.

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The Ninth Circuits logic applies with equal force here. The redistricting process at issue is inherently political. Data Targeting, with whom the Non-parties are associated, is a political consultancy in the business of formulating a strategy to advocate for a particular outcome one that might be controversial to some, but certainly one that Data Targeting has every right advocate. 3 See NAACP, 357 U.S. at 462-63. Disclosing internal deliberations of the Non-parties in preparation for or in relation to the Legislatures redistricting actions would interfere with these activities; it would make associated clients, with shared beliefs and perspectives, think twice before seeking advice; it would force Data Targeting employees to be less than candid in their consultations; it would make the deliberative process less deliberative for fear of later censure, reprisals or ridicule. 4 definition of a chilling effect. The Plaintiffs here have yet to articulate a reason for imposing this chilling effect other than as an old-fashioned fishing expedition designed to acquire personal and proprietary information from an entity with clients typically on the opposite side of the aisle from the Plaintiffs. The irony, of course, is that if the Courts Order stands, then all other parties could latch onto its logic to seek proof of similar deliberations by contemporaries on the other end of the political
3

This is the very

See Notice of Filing Affidavit of Pat Bainter In Support of Motion for Protective Order at 1-2. 4 See Notice of Filing Affidavit of Pat Bainter In Support of Motion for Protective Order at 3-5.
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spectrum, harming the legislative process along the way. That is why the First Amendments associational privilege exists; that is why the privilege should apply here. Perry, 591 F.3d at 1162-64; see also Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 557 (1963) (noting the substantial deterrent and chilling effect on the free exercise of constitutionally enshrined rights of free speech, expression, and association resulting from disclosure of political beliefs); Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987) (noting that First Amendment privilege applies in the context of discovery orders, even if all the litigants are private entities); Adolph Coors Co. v. Wallance, 570 F. Supp. 202, 208 (N.D. Cal. 1983) (a private litigant is entitled to as much solicitude to its constitutional guarantees of freedom of associational privacy when challenged by another private party, as when challenged by a governmental body). B. The First District Court of Appeal has opined regarding the proper scope of evidence to prove legislative intent.

The subpoenas and discovery propounded by Plaintiffs are sure to prove unfruitful. The First District Court of Appeal recently discussed the proper scope of evidence that is to be used to establish the Legislatures intent in adopting the new redistricting maps. In that case, the Plaintiffs sought to depose a legislator and staff members. This Court rejected the legislators claim of privilege and allowed the depositions to proceed noting objective information was discoverable but not subjective information. The appellate court quashed this Courts order finding that
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legislative privilege applied and prevented the depositions in their entirety and that the objective/subjective distinction made by the court was unworkable. In its holding, the First District stated: Finally, we reject Respondents argument that precluding them from deposing legislators and legislative staff members will thwart the intent of the Fair Districts Amendment and make it impossible for the trial court to determine whether the Legislature complied with the standards in article III, section 20. This claim rings hollow for several reasons. First, it is undisputed that Respondents have been provided tens of thousands of files from which legislative intent can be gleaned, including the extensive legislative record of the reapportionment process and the materials submitted by the State to the U.S. Department of Justice under the Voting Rights Act. [citation omitted]. Second, Florida law is clear that legislative intent is to be determined from what the Legislature said (or, here, drew) in the challenged legislation, not after-the-fact statements of individual legislators as to what they thought or intended when proposing or voting on the legislation. See Sec. Feed & Seed Co. v. Lee, 189 So. 869, 870 (Fla. 1939). We are confident that Respondents will be able to make their case that the Plan was drawn with improper intent if, indeed, that was what happened with the evidence in the legislative record and their experts analysis of the Plan and its underlying demographic data. Indeed, although we recognize that the court was conducting a facial review on an expedited timeframe, we note that the supreme court had no difficulty in determining whether the state legislative districts drawn by the Legislature complied with the identical standards in article III, section 21 based solely on this type of evidence. [citations omitted].

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See Fla. House of Representatives, v. Romo, Case No. 1D12-5280 (Fla. 1st DCA May 22, 2013) Slip Op. at 17-18. The Non-parties have submitted with the Motion for Protective Order a compact disc containing 1,833 pages of information potentially responsive to the subpoenas duces tecum. Non-parties believe that all 1,833 pages are confidential and privileged documents and that disclosure of these internal deliberations would chill their right to free speech and their right of associational privacy guaranteed to them by the First Amendment. Accordingly, Non-parties request the Court to grant its Motion for Protective Order finding the 1,833 pages of internal deliberations are confidential and privileged documents and not subject to disclosure as guaranteed by the First Amendment. II. The Subpoenas and Courts Order requiring production of documents beyond those communications with legislators or staff would violate the Non-parties Constitutional right of privacy in Art. I, Sec. 23, Fla. Const. Unlike the Federal Constitution, the Florida Constitution provides an express right to privacy: SECTION 23. Right of privacy.Every natural person has the right to be let alone and free from governmental intrusion into the persons private life except as otherwise provided herein. This section shall not be construed to limit the publics right of access to public records and meetings as provided by law.

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Art. I, Sec. 23, Fla. Const. The right of privacy has been described as the most comprehensive of rights and the right most valued by civilized man. Rasmussen v. S. Fla. Blood Serv., Inc., 500 So. 2d 533, 535 (Fla. 1987) quoting Stanley v. Georgia, 394 U.S. 557, 564, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969). The Florida Supreme Court has described the far reaching impact of this provision: The citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words "unreasonable" or "unwarranted" before the phrase "governmental intrusion" in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right to privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution. Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544, 548 (Fla. 1985). A circuit court must consider a litigants and even more importantly a nonparty that has been unwillingly pulled into litigation constitutional right to privacy: The potential for invasion of privacy is inherent in the litigation process. Under the Florida discovery rules, any nonprivileged matter that is relevant to the subject matter of the action is discoverable. Fla. R. Civ. P. 1.280(b)(1). The discovery rules also confer broad
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discretion on the trial court to limit or prohibit discovery in order to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fla. R. Civ. P. 1.280(c). Under this authority, a court may act to protect the privacy of the affected person. Springer v. Greer, 341 So.2d 212, 214 (Fla. 4th DCA 1976), appeal dismissed, 351 So.2d 406 (Fla. 1977). In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interests that would be served by granting discovery or by denying it. North Miami General Hospital v. Royal Palm Beach Colony, Inc., 397 So.2d 1033, 1035 (Fla. 3d DCA 1981); Dade County Medical Association v. Hlis, 372 So.2d 117, 121 (Fla. 3d DCA 1979). Thus, the discovery rules provide a framework for judicial analysis of challenges to discovery on the basis that the discovery will result in undue invasion of privacy. This framework allows for broad discovery in order to advance the state's important interest in the fair and efficient resolution of disputes while at the same time providing protective measures to minimize the impact of discovery on competing privacy interests. Accordingly, we must assess all of the interests that would be served by the granting or denying of discovery the importance of each and the extent to which the action serves each interest. In undertaking this analysis, we begin by examining the nature and importance of the donors' rights. Rasmussen, 500 So. 2d at 535; Whalen v. Roe, 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977) (the right to privacy includes at minimum two different kinds of interests, the individual interest in avoiding disclosure of personal matters, and . . . the interest in independence in making certain kinds of important decisions.).

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In discussing the proper scope of discovery, the Second District Court of Appeal has said that a subpoena duces tecum may not be used: primarily for the purpose of discovery, either to ascertain the existence of documentary evidence, or to supply the facts needed for litigation, nor can it be employed for a mere fishing expedition, or general inquisitorial examination of books, papers, or records, with a view to ascertaining whether something of value may not show up therefrom, or merely to gratify curiosity, or for the information of the public. Imparato v. Spicola, 238 So.2d 503, 511 (Fla. 2d DCA 1970). After all, rules governing discovery production are in no sense designed to afford a litigant an avenue to pry into [a partys] business or go on a fishing expedition to uncover business methods, confidential relations, or other facts pertaining to the business. Hollywood Beach Hotel & Golf Club, Inc. v. Gilliland, 191 So. 30, 32 (Fla. 1939). Moreover, a litigant is not entitled carte blanche to irrelevant discovery. Allstate Ins. Co. v. Langston, 655 So.2d 91, 95 (Fla. 1995). As the Florida Rules of Civil Procedure explicitly provide, discovery in civil cases must be relevant to the subject matter of the case and must be reasonably calculated to lead to admissible evidence. Id. at 94; see also Krypton Broad. of Jacksonville, Inc. v. MGM-Pathe Commcns Co., 629 So.2d 852, 854) (Fla. 1st DCA 1994) (It is axiomatic that information sought in discovery must relate to the issues involved in the litigation, as framed in all pleadings.). A reasonably calculated causal connection between the information sought and the possible evidence relevant to
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the issues in the pending action must appear from the nature of both or it must be demonstrated by the person seeking the discovery. Calderbank v. Cazares, 435 So.2d 377, 379 (Fla. 5th DCA 1983). Absent a showing of more, [t]he mere fact that an inquiry that appears to be irrelevant might lead to evidence that is relevant and admissible to the issues in the pending suit is not sufficient. Id. Plaintiffs request for discovery exceeds the scope of relevant information and documents permitted under the Florida Rules of Civil Procedure and invades the Non-parties right to privacy and independence in making important decisions. Again, Non-parties have recognized the potential relevance and value of a document provided to the Legislature or its staff for purposes of commenting on or contributing to the redistricting process. In fact, Non-parties have produced all such documents to date. Here, however, Plaintiffs have sought Non-parties business

communications and considerations with private entities. Just as Plaintiffs are not equipped with an innate or divine sense of how, when, or why the Legislature decides to act, Non-parties business records and private communications with its own employees, clients and contacts are not and cannot be evidence of legislative intent, nor reasonably calculated to lead to evidence of legislative intent. To the extent the Court compels disclosure of communications with nonlegislative personnel (including internal communications among employees, clients

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and contacts) which have been claimed by Non-parties as confidential or privileged, the Non-parties constitutional right to privacy will be violated. The Non-parties have submitted with the Motion for Protective Order a compact disc containing 1,833 pages of information potentially responsive to the subpoenas duces tecum. Non-parties believe that all 1,833 pages are confidential and

privileged documents and disclosure of these internal deliberations would violate their right to privacy as guaranteed by the Florida Constitution. Accordingly, Nonparties request the Court to grant its Motion for Protective Order finding the 1,833 pages of internal deliberations are confidential and privileged documents and not subject to disclosure as guaranteed by Article I, section 23, of the Florida Constitution. III. Many of the Non-Parties Documents Contain Protected Trade Secrets. Florida law broadly defines trade secrets to include: Trade secret means the whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. Trade secret includes any scientific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be:

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1. Secret; 2. Of value; 3. For use or in use by the business; and 4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes. 812.081, Fla. Stat. The documents which Non-parties assert are trade secrets are identified in the privilege log attached as Exhibit A. Many of these documents contain

information compilations or data sets and analyses regarding the same as it relates to various aspects of maps and draft maps of legislative or congressional district boundaries. These information compilations and analyses, as well as the process and design by which Non-parties analyze the information, maps or modify or alter maps, are trade secrets. In this case, the Non-parties have taken measures to prevent the release of the trade secrets to others by sharing their trade secrets with a select group of like-minded consultants for a limited purpose as allowed by statute. Because many of the documents are protected trade secrets not to mention irrelevant to the Plaintiffs case the Court should undertake a mandatory in-camera review and grant Non-parties Motion for Protective Order and not require production of these protected documents as reflected in Exhibit A.

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WHEREFORE, the Non-parties request that the Court grant its Motion for Protective Order finding that the 1,833 pages of documents submitted in camera to the Court are protected from disclosure by the First Amendment to the United States Constitution, the right of privacy of the Florida Constitution, and select documents identified in the privilege log are protected trade secrets. Respectfully submitted this 29th day of May, 2013.

/s/ Thomas R. Philpot D. Kent Safriet Florida Bar No. 174939 kents@hgslaw.com Thomas R. Philpot Florida Bar No. 091945 thomasp@hgslaw.com HOPPING GREEN & SAMS, P.A. P.O. Box 6526 Tallahassee, Florida 32314 Telephone: (850) 222-7500 Facsimile: (850) 224-8551 and David Healey, Esq. 2846 Remington Green Cir #B Tallahassee, Florida 32308-3763 dhealy@davidhealylaw.com Counsel for Non-parties

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by Electronic Mail to all counsel of record below on the 29th day of May, 2013: George T. Levesque General Counsel THE FLORIDA SENATE 305 Senate Office Building Tallahassee, Florida 32399-1300 Telephone: 850-487-5237 levesque.george@flsenate.gov carter.velma@flsenate.gov Counsel for the Florida Senate Daniel Nordby General Counsel Florida House of Representatives 422 The Capitol Tallahassee, FL 32399-1300 Daniel.Nordby@myfloridahouse.gov lynn.imhof@myfloridahouse.gov Counsel for the Florida House of Representatives Gerald E. Greenberg Adam M. Schachter GELBER SCHACHTER & GREENBERG, P.A. 1441 Brickell Avenue, Suite 1420 Miami, Florida 33131 Telephone: (305) 728-0950 Facsimile: (305) 728-0951 ggreenberg@gsgpa.com aschachter@gsgpa.com DGonzalez@gsgpa.com Counsel for Coalition Plaintiffs
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Michael A. Carvin Louis K. Fisher JONES DAY 51 Louisiana Avenue N.W. Washington, D.C. 20001 macarvin@jonesday.com lkfisher@jonesday.com Counsel for the Florida Senate Blaine Winship Timothy D. Osterhaus Atty. Gen., The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 timothy.osterhaus@myfloridalegal.com blaine.winship@myfloridalegal.com Counsel for the Attorney General

J. Andrew Atkinson Ashley Davis Florida Department of State R.A. Gray Building 500 S. Bronough Street Tallahassee, FL 32399 ashley.davis@DOS.myflorida.com jandrew.atkinson@DOS.myflorida.com Counsel for Florida Secretary of State

Miguel De Grandy Miguel De Grandy, P.A. 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 Telephone: 305-444-7737 Facsimile: 305-443-2616 mad@degrandylaw.com Counsel for the Florida House of Representatives Stephen Hogge STEPHEN HOGGE ESQ., LLC 117 South Gadsden Street Tallahassee, Florida 32301 stephen@stephenhoggeesq.com Counsel for NAACP Charles T. Wells George N. Meros, Jr. Jason L. Unger Andy Bardos GRAY ROBINSON, P.A. P.O. Box 11189 (32302) 301 South Bronough Street; Suite 600 Tallahassee, Florida 32301 Tel. (850) 577-9090 Fax. (850) 577-3311 Charles.Wells@gray-robinson.com George.Meros@gray-robinson.com Jason.Unger@gray-robinson.com Andy.Bardos@gray-robinson.com croberts@gray-robinson.com tbarreiro@gray-robinson.com mwilkinson@gray-robinson.com Counsel for the Florida House of Representatives

Charles G. Burr BURR & SMITH, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, FL 33606 cburr@burrandsmithlaw.com Counsel for NAACP Karen C. Dyer BOIES, SCHILLER & FLEXNER, LLP 121 South Orange Ave., Suite 840 Orlando, FL 32801 kdyer@bsfllp.com Counsel for Romo Plaintiffs Raoul G. Cantero Jason N. Zakia Jesse L. Green WHITE & CASE LLP Southeast Financial Center, Ste. 4900 200 South Biscayne Boulevard Miami, FL 33131 Telephone: (305) 371-2700 Facsimile: (305) 358-5744 rcantero@whitecase.com jzakia@whitecase.com jgreen@whitecase.com ldominguez@whitecase.com mgaulding@whitecase.com Counsel for the Florida Senate

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Allison J. Riggs, Admitted Pro Hac Vice Anita S. Earls SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. Highway 54, Suite 101 Durham, NC 27707 allison@southerncoalition.org anita@southerncoalition.org Counsel for NAACP

Daniel C. Brown CARLTON FIELDS, P.A. P.O. Drawer 190 Tallahassee, FL 32302-0190 Telephone: (850) 224-1585 Facsimile: (850) 222-0398 dbrown@carltonfields.com Counsel for Non-parties Richard Heffley, Marc Reichelderfer, Frank Terraferma, Richard Johnston and Joel Springer Abba Khanna Kevin J. Hamilton PERKINS COIE, LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 akhanna@perkinscoie.com rkelly@perkinscoie.com khamilton@perkinscoie.com Counsel for Romo Plaintiffs

Victor Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297 vgoode@naacpnet.org dgilmore@naacpnet.org Counsel for NAACP Mark Herron, Esq. Robert J. Telfer III, Esq. Angelina Perez, Esq. Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, FL 32302-1876 Telephone: (850) 222-0720 Facsimile: (850) 558-0659 mherron@lawfla.com rtelfer@lawfla.com aperez@lawfla.com clowell@lawfla.com bmorton@lawfla.com statecourtpleadings@lawfla.com Counsel for Romo Plaintiffs

Harry O. Thomas Christopher B. Lunny Radney, Thomas, Yon & Clark, PA 301 South Bronough St., Ste. 200 Tallahassee, FL 32301-1722 hthomas@radneylaw.com clunny@radneylaw.com jday@radeylaw.com cdemeo@radeylaw.com Counsel for Defendants Negron, Suarez, Rodriguez, Pinder, Mathiri, Mount, Barnes, Butler and Wise

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Marc Erik Elias (admitted pro hac vice) John M. Devaney Perkins Coie, LLP 700 13th Street, NW, Suite 600 Washington, D.C. 20005 Telephone: (202) 434-1609 melias@perkinscoie.com jdevaney@perkinscoie.com efrost@perkinscoie.com syarborough@perkinscoie.com Counsel for Romo Plaintiffs Jessica Ring Amunson Michael B. DeSanctis Kristen M. Rogers Paul M. Smith Christopher Deal Jenner & Block, LLP 1099 New York Avenue, N.W., Suite 900 Washington, D.C. 20001 jamunson@jenner.com mdesanctis@jenner.com krogers@jenner.com psmith@jenner.com cdeal@jenner.com Counsel for Coalition Plaintiffs

Ronald G. Meyer Lynn Hearn Meyer, Brooks, Demma & Blohm, P.A. 131 North Gadsden Street P.O. Box 1547 (32302) Tallahassee, FL 32301 rmeyer@meyerbrookslaw.com lhearn@meyerbrookslaw.com Counsel for Coalition Plaintiffs J. Gerald Hebert J. Gerald Hebert, P.C. 191 Somervelle Street, Unit 405 Alexandria, VA 22304 Hebert@votelaw.com Counsel for Coalition Plaintiffs

/s/ Thomas R. Philpot Attorney

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IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN WEAVER, an individual; WILLIAM EVERETT WARINNER; an individual; JESSICA BARRETT, an individual; JUNE KEENER, an individual; RICHARD QUINN BOYLAN, an individual; and BONITA AGAN, an individual, Plaintiffs, v. KEN DETZNER, in his official capacity as Florida Secretary of State, and PAM BONDI, in her official capacity as Attorney General of the State of Florida, Defendants.

CASE NO: 2012-CA-00412

THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al. Plaintiffs, v. KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; MICHAEL HARIDOPOLOS, in his official capacity as President of the Florida Senate; THE FLORIDA HOUSE OF REPRESENTATIVES; and DEAN CANNON, in his official capacity as Speaker of the Florida House of Representatives, Defendants. CASE NO: 2012-CA-00490

PRIVILEGE LOG FOR PRODUCTION BY NON-PARTIES PAT BAINTER, MATT MITCHELL, MICHAEL SHEEHAN, AND DATA TARGETING, INC.
1

BATES STAMP DATAT CONF 00001-01833 DATAT CONF 00001-01833 DATAT CONF 00001-00007; 00009-00019; 00021-00058; 00061-00063; 00066-00159; 00162-00204; 00207-00209; 00212-00256; 00259-00301; 00303-01160; 01162-01174; 01176-01178; 01180-01181; 01184-01435; 01437-01514; 01516-01705; 01707-01833.

NATURE OF PROTECTION OR PRIVILEGE Right of Privacy, Art. I, Sec. 23, Fla. Const. Freedom of Association, First Amendment, U.S. Constitution. See Perry v. Schwarzenegger, 591 F.3d 1147, 1152 (9th Cir. 2010).

Trade Secrets. Documents consisting of proprietary information, data, or analysis which serves as an advantage or opportunity for an advantage for Data Targeting over others who do not know or use the information and which is intended to be available only to entities identified by Data Targeting for limited purposes pursuant to the definition of trade secret in section 812.081, Florida Statutes.