US v. Texas Joint Scheduling Proposal

Case 2:13-cv-00193 Document 61 Filed in TXSD on 11/04/13 Page 1 of 19
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION
MARC VEASEY, et al., Plaintiffs, v. RICK PERRY, et al., Defendants. Civil Action No. 2:13-cv-193 (NGR)
UNITED STATES OF AMERICA, Plaintiff, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Plaintiff-Intervenors, TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, et al., Movant-Intervenors, v. STATE OF TEXAS, et al., Defendants. TRUE THE VOTE, Movant-Intervenor.
Civil Action No. 2:13-cv-263 (NGR)
TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Plaintiffs, Civil Action No. 2:13-cv-291 (NGR) v. JOHN STEEN, et al., Defendants.
JOINT REPORT OF THE RULE 26(f) MEETING AND JOINT DISCOVERY/CASE MANAGEMENT PLAN 1. State when the Rule 26 Conference of the parties was held and identify the counsel who attended for each party. On September 18, 2013, the parties held a telephonic Rule 26(f) conference at which the following counsel participated: Armand Derfner, Gerry Hebert, and Neil Baron for Plaintiffs in Veasey v. Perry Meredith Bell-Platts, Elizabeth Westfall, Bruce Gear, Anna Baldwin, Daniel Freeman, and Jennifer Maranzano for the Plaintiff in United States v. Texas Danielle Conley, Ryan Haygood, Leah Aden, Hasan Ali, and Kelly Dunbar for Plaintiff-Intervenors Texas League of Young Voters Education Fund, et al. Ezra Rosenberg, Mark Posner, Vishal Agraharkar, Jennifer Clark, and Myrna Perez for Plaintiffs in Texas State Conference of NAACP Branches v. Steen John Scott, Jonathan Mitchell, Patrick Sweeten, and David Whitley for the Defendants State of Texas, et al.
On October 28, 2013, the parties held a telephonic Rule 26(f) conference at which the following counsel participated: Armand Derfner and Gerry Hebert for Plaintiffs in Veasey v. Perry Elizabeth Westfall, Anna Baldwin, Robert Berman, Bruce Gear, and Jennifer Maranzano for the Plaintiff in United States v. Texas Natasha Korgaonkar, Leah Aden, and Hasan Ali for Plaintiff-Intervenors Texas League of Young Voters Education Fund, et al. Ezra Rosenberg, Vishal Agraharkar, Jennifer Clark, Myrna Perez, and Mark Posner, for Plaintiffs in Texas State Conference of NAACP Branches v. Steen 2
2.
John Scott, Reed Clay, and David Whitley for the Defendants State of Texas et al. Rolando Rios for Movant-Intervenors Texas Association of Hispanic Judges and Commissioners, et al. Joseph Nixon for Movant-Intervenor True the Vote
List any cases related to the present action that are pending in any state or federal court, with the style, case number, court, and a brief description of the case. Saldana, et al. v. Hidalgo County, et al., No. C-6392-13I (398th Judicial District Court, Hidalgo County, Texas) (filed Oct. 18, 2013). Plaintiffs seek temporary and permanent enjoinment of Senate Bill 14 (2011) (SB 14). On August 30, 2013, the Court ordered the consolidation of United States v. Texas, No. 2:13-cv-263 (S.D. Tex.) (NGR) with Veasey v. Perry, No. 2:13-cv-193 (S.D. Tex.) (NGR) (ECF No. 14). On September 19, 2013, the Court ordered the consolidation of Texas State Conference of NAACP Branches v. Steen, No. 2:13-cv-291 (S.D. Tex.) (NGR) with Veasey v. Perry, No. 2:13-cv-193 (S.D. Tex.) (NGR) and United States v. Texas, No. 2:13-cv-263 (S.D. Tex.) (NGR) (ECF No. 31).
3.
Briefly describe the pertinent facts and legal theories upon which the present actions are based. United States v. Texas is a challenge under Section 2 of the Voting Rights Act, 42 U.S.C. 1973, to the State of Texass photographic voter identification law, SB 14, to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution. Veasey v. Perry alleges two categories of claims: (1) that SB 14 discriminates in voting on account of race, ethnicity and language minority status, in violation of Section 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments, and (2) that, without regard to race, ethnicity or language minority status, SB 14 abridges and severely burdens the right to vote without sufficient justification, and sets up discriminatory classifications on its face, in violation of the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment, including its incorporation of voters First Amendment free speech and free association rights, and the anti-poll tax provision of the Twenty-Fourth Amendment. Texas NAACP v. Steen is an action for declaratory and injunctive relief brought by the Texas State Conference of NAACP Branches and the Mexican American Legislative Caucus of the Texas House of Representatives under Section 2 of the Voting Rights Act, 42 U.S.C. 1973, and the Fourteenth and Fifteenth Amendments to the United 3
States Constitution to enjoin sections of the State of Texass photographic voter identification law, SB 14 (2011), and declare them violative of Section 2 of the Voting Rights Act and the voting rights guaranteed by the Fourteenth and Fifteenth Amendments. Plaintiff-Intervenors Texas League of Young Voters Education Fund challenge the State of Texass photographic voter identification law, SB 14, under Section 2 of the Voting Rights Act, 42 U.S.C. 1973 and 42 U.S.C. 1983, to enforce the voting rights guaranteed by the Voting Rights Act and by the Fourteenth and Fifteenth Amendments to the United States Constitution. 4. Specify the allegation of federal jurisdiction. Indicate whether the parties agree or disagree to the allegation. If the parties disagree, indicate the nature of the disagreement. This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. 1331, 1345, and 2201 and 42 U.S.C. 1973j(f). The parties agree on the allegation of federal jurisdiction. Plaintiff-Intervenors Texas League of Young Voters Education Fund allege that this Court has jurisdiction to hear this matter pursuant to 28 U.S.C. 1331, 1343, 1345, 1357 and 2201 and 42 U.S.C. 1973, 1973j(f), 1983, and 1988. The parties agree on the allegation of federal jurisdiction. 5. List any additional parties that may be included, when they can be added, and which party desires to bring them into the litigation. In diversity jurisdiction cases, this item is intended to trigger the disclosure requirement of TEX. CIV. PRAC. & REM. CODE 33.004(d) (effective September 1, 2011) and TEX. R. CIV. P. 194.2(b). The plaintiff United States does not anticipate seeking to add additional defendants. The Veasey Plaintiffs and the Texas NAACP/MALC Plaintiffs may amend their complaints to add new plaintiffs, without leave of court, by December 6, 2013. Thereafter, additional plaintiffs may be added only with leave of court. Plaintiff-Intervenors Texas League of Young Voters Education Fund anticipate amending their complaint to add individual plaintiff-intervenors. If PlaintiffIntervenors ultimately amend their complaint to add individual plaintiff-intervenors, they will do so in the time afforded by Federal Rule of Civil Procedure 15(a)(1)(B). 6. List any anticipated interventions. Motions to intervene by True the Vote (ECF No. 38) and Texas Association of Hispanic County Judges (ECF No. 41) are pending. The parties are unaware of any additional anticipated motions to intervene. 4
7.
If this is a class action, describe any issues regarding certification of the class. The parties do not seek certification of a class.
8.
State whether each party represents that it has made the initial disclosures required by Rule 26(a). If not, describe the arrangements that have been made to complete the disclosures. The plaintiff United States, the Veasey plaintiffs, the plaintiffs in Texas NAACP, and Plaintiff-Intervenors Texas League of Young Voters Education Fund will make their initial disclosures on November 21, 2013.
9.
Describe the proposed discovery plan the parties have agreed upon, including: A. Responses to all the matters raised in Rule 26(f). The parties have been unable to agree upon a joint scheduling order. The Courts standard deadlines are not applicable to this case. The plaintiff United States, the Texas NAACP plaintiffs, and the Plaintiff-Intervenors Texas League of Young Voters Education Fund propose the schedule that is attached as Exhibit 1. The plaintiff United States submits a statement in support of its proposed schedule at Exhibit 2. The Veasey plaintiffs propose the schedule that is attached as Exhibit 3. The Veasey plaintiffs submit a statement in support of their proposed schedule at Exhibit 4. The State of Texas proposes the schedule that is attached as Exhibit 5. * a. Interrogatories: The plaintiff United States, the Texas NAACP plaintiffs, the Veasey Plaintiffs, and the Plaintiff-Intervenors Texas League of Young Voters Education Fund propose that each party shall be permitted to propound twentyfive (25) interrogatories on any other party. Fed. R. Civ. P. 33(a)(1); S.D. Tex. R. 33.1. Defendants believe that Plaintiff and Plaintiff-Intervenors proposal is not equitable. That proposal would allow hundreds of interrogatories to be propounded on Defendants while limiting Defendants to a fraction of that total to propound against the far more numerous party-opponents it faces in this litigation. Federal Rule of Civil Procedure 33(a)(1) allows the Court to provide for a different arrangement in situations such as this one. A far more equitable arrangement would be to mirror the arrangement laid out in Section 9(A)(b) of this report regarding Depositions of Fact Witnesses. Defendants propose that each side be given fifty (50) interrogatories, collectively, to propound on any other party.
The Plaintiff United States, Plaintiffs Texas NAACP, Plaintiff-Intervenors Texas League of Young Voters, and Defendants the State of Texas et al. agree on all but a few of the proposed dates in a schedule.
b. Depositions of Fact Witnesses: Notwithstanding the limits set forth in Federal Rule of Civil Procedure 30(a)(2), Plaintiffs, Plaintiff-Intervenors, and MovantIntervenors Texas Association of Hispanic Judges and Commissioners (if intervention is granted) shall be permitted to depose sixty (60) fact witnesses collectively. Likewise, Defendants and Movant-Intervenor True the Vote (if intervention is granted) shall be permitted to depose sixty (60) fact witnesses collectively. The parties will attempt to coordinate the issuance of notices and subpoenas for depositions so as to avoid duplication of effort and promote efficiency. The parties will attempt to coordinate the scheduling of depositions in advance of submitting notices for deposition. c. Discovery Cut-Off Date: The plaintiff United States, the plaintiffs in Texas NAACP, Plaintiff-Intervenors Texas League of Young Voters Education Fund, and the Defendants State of Texas et al. propose the following: fact discovery shall conclude on August 15, 2014; expert discovery shall conclude on November 21, 2014; and the parties may conduct fact discovery limited to the 2014 November general election between October 1, 2014 and December 23, 2014. The plaintiff United States further proposes that, notwithstanding Federal Rules of Civil Procedure 33(b)(2), 34(b)(2)(A), during this supplemental discovery period, the responding party must serve or produce, where applicable, answers, objections, and responsive documents within twenty-one (21) days. The Veasey plaintiffs propose that fact discovery shall conclude on May 2, 2014, and expert discovery shall conclude on July 15, 2014. d. Federal Rule 26(a)(2) Disclosure (Experts): The plaintiff United States, the plaintiffs in Texas NAACP, the PlaintiffIntervenors Texas League of Young Voters Education Fund, and Defendants State of Texas et al. propose that experts and expert reports shall be disclosed as required by Rule 26(a)(2) by September 5, 2014; rebuttal experts and rebuttal reports shall be disclosed by October 6, 2014; and surrebuttal experts and surrebuttal reports shall be disclosed by October 31, 2014. The Veasey plaintiffs propose that experts and expert reports shall be disclosed by May 9, 2014; rebuttal experts and rebuttal reports shall be disclosed by June 6, 2014; and surrebuttal experts and surrebuttal reports shall be disclosed by June 13, 2014.
e. Privileges: Texas has indicated that it will assert several privileges, including legislative and deliberative process privilege, as grounds for withholding documents and deposition testimony from state legislators and their staff related 6
to the history of the states consideration and/or enactment of legislation requiring photographic identification, up to and including SB 14, as a requirement to cast a ballot in person. If Texas does make such an assertion, the plaintiff United States, the Veasey plaintiffs, the plaintiffs in Texas NAACP, and the Plaintiff-Intervenors Texas League of Young Voters Education Fund will likely move to compel at least a portion of the discovery withheld on those grounds. f. Dispositive Motions: The plaintiff United States, the plaintiffs in Texas NAACP, Plaintiff-Intervenors Texas League of Young Voters Education Fund, and the Defendants State of Texas et al. propose that dispositive motions shall be filed on January 12, 2015, responses shall be due February 11, 2015, and replies to responses shall be due February 23, 2015. The Veasey plaintiffs propose that dispositive motions shall be filed by July 22, 2014, responses shall be filed by August 4, 2014, and replies to responses shall be filed by August 11, 2014. g. Pretrial Order: The pretrial statement shall be due 14 days before the pretrial conference. Pursuant to Local Rule 46, objections to exhibits shall be made at least seven days before trial. h. Electronic Discovery: The parties have agreed on a proposed production format for documents and electronically stored information. See Agreement Concerning Production Format (Ex. 6).
i.
Protective Orders: The plaintiff United States has circulated several drafts of proposed protective orders to govern the exchange of certain confidential information, including but not limited to the identity and race or ethnicity of persons who may appear in certain state and federal databases. As of the date of this filing, the parties are still negotiating the terms of those proposed orders. The parties will advise the Court of the status of these negotiations at the upcoming Initial Pretrial and Scheduling conference scheduled for November 15, 2013.
B. When and to whom Plaintiff(s) anticipate(s) sending interrogatories. Interrogatories may be served by the parties at any time during fact discovery, provided that sufficient time is given to respond before the fact discovery cut-off (as modified below for the supplemental fact discovery period). The plaintiff United States, the NAACP Plaintiffs, the Veasey Plaintiffs, and Plaintiff-Intervenors Texas League of Young Voters Education Fund intend to serve interrogatories on the named defendants and state officials. C. When and to whom Defendant(s) anticipate(s) sending interrogatories. 7
Defendants will serve interrogatories at any time during fact discovery provided that sufficient time is given to respond by the fact discovery cut-off. Defendants will serve interrogatories on opposing parties including named individual plaintiffs and various federal agencies. Defendants reserve the right to serve interrogatories on additional parties. D. When and from whom Plaintiff(s) anticipate(s) taking oral depositions. The plaintiff United States, the Veasey plaintiffs, the plaintiffs in Texas NAACP, and Plaintiff-Intervenors Texas League of Young Voters Education Fund will notice depositions of current and former state legislators; state and local officials, employees, agents, and counsel of the State of Texas, including, but not limited to, the Office of the Texas Secretary of State, the Texas Division of Elections, the Texas Department of Public Safety, and other state agencies responsible for issuing identification; county and local election officials; and third parties who may have information relevant to the United States claim. Additionally, the plaintiff United States, the Veasey plaintiffs, the plaintiffs in Texas NAACP, and Plaintiff-Intervenors Texas League of Young Voters Education Fund intend to depose the fact and expert witnesses on whom Defendants intend to rely in support of their defenses. The plaintiff United States, the Veasey plaintiffs, the plaintiffs in Texas NAACP, and Plaintiff-Intervenors Texas League of Young Voters Education Fund will begin noticing depositions of fact witnesses after they have received and reviewed Defendants responses to written discovery requests and no earlier than December 1, 2013. E. When and from whom Defendant(s) anticipate(s) taking oral depositions. Defendants anticipate taking oral depositions of various plaintiffs, federal agencies, experts and potentially Legislators during the fact discovery period. Defendants reserve the right to depose additional witnesses as fact discovery continues. F. When Plaintiff(s) (or the party with the burden of proof on an issue) will be able to designate experts and provide the reports required by Rule 26(a)(2)(B), and when the opposing party will be able to designate responsive experts and provide their reports. The plaintiff United States, the plaintiffs in Texas NAACP, Plaintiff-Intervenors Texas League of Young Voters Education Fund, and Defendants State of Texas et al. request that the Court order the following schedule for the disclosure of experts and expert reports: Experts and expert reports shall be disclosed as required by Rule 26(a)(2) by September 5, 2014. Rebuttal experts and rebuttal 8
reports shall be disclosed by October 6, 2014. Surrebuttal experts and surrebuttal reports shall be disclosed by October 31, 2014. The Veasey plaintiffs request that the Court instead order the following schedule for the disclosure of experts and expert reports: Experts and expert reports shall be disclosed as required by Rule 26(a)(2) by May 9, 2014. Rebuttal experts and rebuttal reports shall be disclosed by June 6, 2014. Surrebuttal experts and surrebuttal reports shall be disclosed by June 13, 2014. G. List expert depositions Plaintiff(s) (or the party or parties with the burden of proof on an issue) anticipate(s) taking and their anticipated completion date. The plaintiff United States, the Veasey plaintiffs, the plaintiffs in Texas NAACP, and Plaintiff-Intervenors Texas League of Young Voters Education Fund anticipate that they will depose all experts disclosed by any Defendant. The plaintiff United States, the plaintiffs in Texas NAACP, and PlaintiffIntervenors Texas League of Young Voters Education Fund anticipate that they will complete all such expert depositions by November 21, 2014. The Veasey plaintiffs anticipate that they will complete all such expert depositions by July 15, 2014. H. List expert depositions the opposing party or parties anticipate(s) taking and their anticipated completion date. Defendants will depose experts disclosed by any Plaintiff or Plaintiff-Intervenor. Defendants anticipate they will complete all such expert depositions by November 21, 2014. 10. If the parties do not agree on a part of the discovery plan, describe the separate views and proposals of each party. The plaintiff United States submits a proposed scheduling order. (Ex. 1). The plaintiffs in Texas NAACP and Plaintiff-Intervenors Texas League of Young Voters Education Fund agree with the United States proposed scheduling order and, respectfully, request that this Court enter that proposed scheduling order. The plaintiff United States submits a statement in support of its proposed schedule. (Ex. 2). The Veasey plaintiffs submit an alternative proposed scheduling order. (Ex. 3). The Veasey plaintiffs submit a statement in support of their proposed schedule. (Ex. 4). The State of Texas submits an alternative proposed scheduling order. (Ex. 5). 9
Both the Veasey Plaintiffs and the Texas NAACP/MALC Plaintiffs submit that whichever schedule is ordered, it should include December 6, 2013, as the cut-off date to add new plaintiffs, without leave of court, and that additional plaintiffs may be added thereafter only with leave of court. 11. Specify the discovery, beyond initial disclosures, that has been undertaken to date. No discovery has been served. 12. State the date the planned discovery can reasonably be completed. The plaintiff United States, the plaintiffs in Texas NAACP, the Plaintiff-Intervenors Texas League of Young Voters Education Fund, and Defendants the State of Texas et al. request that the Court enter a scheduling order setting August 15, 2014 as the deadline for fact discovery (with limited additional fact discovery related to the 2014 federal general election; see Ex. 1) and November 21, 2014 as the deadline for expert discovery. The Veasey plaintiffs request that the Court enter a scheduling order setting May 2, 2014 as the deadline for fact discovery and July 15, 2014 as the deadline for expert discovery. 13. Describe the possibilities for a prompt settlement or resolution of the case that were discussed in the Rule 26 Conference, including the suitability of this case for mediation or other alternative dispute resolution. Include the anticipated date for the provision of a settlement demand by any party seeking affirmative relief. The parties agree that this case is not suitable for mediation or alternative dispute resolution. 14. If all parties consent, a Federal Magistrate Judge may hear both jury and non-jury trials. Indicate whether or not all parties consent to a trial before a Magistrate Judge. The parties do not consent to trial before a federal magistrate judge. 15. State whether a jury demand has been made, and if so, whether it was made on time. A jury demand has not been made. 16. Specify the combined total number of hours it will take both parties to present the evidence in this case. The plaintiff United States, the Veasey plaintiffs, the Texas NAACP plaintiffs, and the Plaintiff-Intervenors Texas League of Young Voters Education Fund anticipate that 10
the combined total number of hours that it will take for all parties to present evidence in this case is 100 hours, with the division of time per side to be allotted later. The State of Texas anticipates that the combined total number of hours that it will take for all parties to present evidence in this case is 60 hours. Each side should be allocated 30 hours to present its case. 17. List pending motions that could be ruled on at the Initial Pretrial Conference. Motions to intervene by True the Vote (ECF No. 38) and Texas Association of Hispanic County Judges, et al. (ECF No. 41). 18. List other pending motions. Defendants filed a motion to dismiss on October 25, 2013. Pursuant to the minute order issued on October 18, 2013, responses are due by November 22, 2013, and the Defendants reply is due by December 6, 2013. 19. Indicate other matters peculiar to this caseincluding discoverythat deserve the special attention of the Court at the Initial Pretrial Conference. The plaintiff United States and defendant the State of Texas have stipulated, without waiving any other objection under the Federal Rules of Evidence, to the authenticity of documents produced in discovery in Texas v. Holder, No. 1:12-cv-128 (D.D.C.). 20. Certify that all parties have filed Certificates of Interested Partiesas directed in the Order of Conference and Disclosure of Interested Partieslisting the date of filing for the originals and any amendments to the Certificates. Pursuant to local practice, the plaintiff United States did not file a certificate of interested parties. The Veasey Plaintiffs filed their certificate of interested parties on July 11, 2013. The NAACP Plaintiffs and the Plaintiff-Intervenors Texas League of Young Voters Education Fund intend to file a certificate of interested parties in advance of the Scheduling conference scheduled for November 15, 2013. 21. List the names, bar numbers, addresses, telephone numbers, facsimile numbers, and electronic mail addresses of all counsel and pro se parties.
By each of our signatures below, Counsel represent that each understands that the Court will rely on these representations in entering its Scheduling Order. For Plaintiff United States: 11
/s/ Elizabeth S. Westfall T. Christian Herren Jr. chris.herren@usdoj.gov AL Bar No. HER025 Robert S. Berman robert.berman@usdoj.gov WI Bar No. 1015402 Meredith Bell-Platts meredith.bell-platts@usdoj.gov GA Bar No. 048948 OH Bar No. 0072917 Elizabeth S. Westfall elizabeth.westfall@usdoj.gov DC Bar No. 458792 NY Bar No. 2799963 Bruce I. Gear bruce.gear@usdoj.gov DC Bar No. 463388 Jennifer L. Maranzano jennifer.maranzano@usdoj.gov DC Bar No. 483420 Anna M. Baldwin anna.baldwin@usdoj.gov DC Bar No. 998713 NY Bar No. 4711800 Daniel J. Freeman daniel.freeman@usdoj.gov NY Bar No. 4582037 Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Phone: 800-253-3931 Fax: 202-307-3961 12
John A. Smith, III Assistant United States Attorney 800 N. Shoreline, Suite 500 Corpus Christi, TX 78401 (361) 903-7926 john.a.smith@usdoj.gov Bar No. 18627450
For Plaintiffs Marc Veasey, et al. /s/ Chad W. Dunn Armand G. Derfner aderfner@dawlegal.com South Carolina State Bar No. 1650 South Carolina Federal Bar No. 502 Derfner, Altman & Wilborn, LLC P.O. Box 600 Charleston, SC 29402 Phone: (843) 723-9804 Chad W. Dunn chad@brazilanddunn.com Texas State Bar No. 24036507 K. Scott Brazil scott@brazilanddunn.com Texas State Bar No. 02934050 Brazil & Dunn 4201 Cypress Creek Parkway, Suite 530 Houston, TX 77068 Phone: (281) 580-6310 Fax: (281) 580-6362 J. Gerald Hebert ghebert@campaignlegalcenter.org D.C. Bar No. 447676 Virginia State Bar No. 38432 Campaign Legal Center 215 E Street, NE Washington, DC 20002 Phone: (202) 736-2200 Fax: (202) 736-2222 13
Neil G. Baron neil@ngbaronlaw.com Texas State Bar No. 01797080 Law Office of Neil G. Baron 914 FM 517 W, Suite 242 Dickinson, TX 77539 Phone: (281) 534-2748 Fax: (281) 534-4309 David Richards daverichards4@juno.com Texas State Bar No. 16846000 Richards, Rodriguez & Skeith, LLP 816 Congress Avenue, Suite 1200 Austin, TX 78701 Phone: (512) 476-0005 Fax: (512) 476-1513 Luis Roberto Vera, Jr. LULAC National General Counsel Texas State Bar No. 20546740 The Law Offices of Luis Vera Jr., and Associates 1325 Riverview Towers, 111 Soledad San Antonio, TX 78205 Phone: (210) 225-3300 Fax: (210) 225-2060 Craig M. Watkins Dallas County District Attorney Texas State Bar No. 00791886 Teresa Snelson teresa.snelson@dallascounty.org Texas State Bar No. 08577250 411 Elm Street, 5th Floor Dallas, TX 75202-4606 Phone: (214) 653-7358 Fax: (214) 653-6134 For Plaintiffs Texas State Conferences of NAACP Branches, et al. /s/ Ezra D. Rosenberg Ezra D. Rosenberg (NJ 012671974, DC 360927) Dechert LLP 902 Carnegie Ctr 14
Ste 500 Princeton, NJ 08540-6531 (609-955-3200) ezra.rosenberg@dechert.com Amy L. Rudd (TX 24043561, S.D. TX 1149768) Steven B. Weisburd (TX 24054515, S.D. TX 1691215) Lindsey B. Stelcen (TX 24083903) Dechert LLP 300 West 6th Street Suite 2010 Austin, TX 78701 amy.rudd@dechert.com steven.weisburd@dechert.com lindsey.stelcen@dechert.com Wendy Weiser (NY 2919595) Myrna Perez (NY 4874095) Jennifer Clark (NY 5064100) Vishal Agraharkar (NY 4931457) Brennan Ctr for Justice NYU School of Law 161 Avenue of the Americas, 12th Fl. New York, NY 10013 (646-292-8310) wendy.weiser@nyu.edu myrna.perez@nyu.edu jenniferl.clark@nyu.edu vishal.agraharkar@nyu.edu Robert A. Kengle (admitted in MD, no bar number) Mark A Posner (DC 457833) Erandi Zamora (CA 281929) Sonia Kaur Gill (NY 4749891) Lawyers Committee for Civil Rights 1401 New York Ave NW, Ste 400 Washington, DC 20005 (202-662-8389) mposner@lawyerscommittee.org ezamora@lawyerscommittee.org sgill@lawyerscommittee.org Robert Notzon (TX 00797934) The Law office of Robert Notzon 1502 West Avenue 15
Austin, TX 78701 (512-474-7563) Robert@notzonlaw.com Gary Bledsoe (TX 02476500) PotterBledsoe, LLP 316 West 12th Street, Suite 307 Austin, TX 78701 (512) 322-9992 garbledsoe@sbcglobal.net Kim Keenan (DC 419241) Marshall Taylor (DC 454615) Victor Goode (MD 08145525) NAACP 4805 Mt. Hope Drive Baltimore, MD 21215 (410-580-5120) kkeenan@naacpnet.org mtaylor@naacpnet.org vigoode@naacpnet.org Jose Garza (TX 07731950) Law Office of Jose Garza 7414 Robin Rest Drive San Antonio, TX 98209 (210-392-2856) garzapalm@aol.com Clay Bonilla (TX 24055193, S.D.TX 596241) Daniel G. Covich (TX 04906500, S.D. TX 10706) The Law Offices of William Bonilla, P.C. 2727 Morgan Avenue Corpus Christi, TX 78405 (361-882-8284) claybonilla@hotmail.com Daniel@bonillalaw.com
For Plaintiff-Intervenors Texas League of Young Voters Education Fund, et al.: /s/ Ryan P. Haygood Christina A. Swarns cswarns@naacpldf.org 16
PA Bar. No. 83616 NY Bar No. 2619252 Ryan P. Haygood rhaygood@naacpldf.org NY Bar No. 4089397 Natasha M. Korgaonkar nkorgaonkar@naacpldf.org NY Bar No. 4653168 Leah C. Aden laden@naacpldf.org NY Bar No. 4555207 NAACP Legal Defense and Education Fund 40 Rector Street, 5th Floor New York, NY 10006 Tel: (212) 965-2200 Fax: (212) 226-7592 Danielle Y. Conley danielle.conley@wilmerhale.com DC Bar No. 503345 NY Bar No. 647886 Jonathan E. Paikin jonathan.paikin@wilmerhale.com DC Bar No. 466445 Kelly P. Dunbar kelly.dunbar@wilmerhale.com DC Bar No. 500038 NY Bar No. 4347332 Sonya L. Lebsack sonya.lebsack@wilmerhale.com DC Bar No. 1000746 NY Bar No. 4847281 Gerard Sinzdak gerard.sinzdak@wilmerhale.com Cal. Bar No. 260498 DC Bar No. 1015266
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M. Hasan Ali hasan.ali@wilmerhale.com NY Bar No. 5005772 DC Bar No. 1014497 Wilmer Cutler Pickering Hale & Dorr, LLP 1875 Pennsylvania Ave., N.W. Washington, D.C. 20006 Tel: (202) 663-6000 Fax: (202) 663-6363
For Defendants State of Texas, et al.: /s/ John B. Scott John B. Scott john.scott@texasattorneygeneral.gov Texas State Bar No. 17901500 Jonathan Mitchell Jonathan.mitchell@texasattorneygeneral.gov Texas State Bar No. 24075463 Reed Clay reed.clay@texasattorneygeneral.gov Texas State Bar No. 24072039 Patrick Sweeten patrick.sweeten@texasattorneygeneral.gov Texas State Bar No. 00798537 David Whitley david.whitley@texasattorneygeneral.gov Texas State Bar No. 24084092 Ronny Keister ronny.keister@texasattorneygeneral.gov Texas State Bar No. 11185300 Jennifer Roscetti jennifer.roscetti@texasattorneygeneral.gov Texas State Bar No. 24066685 Sean Flammer sean.flammer@texasattorneygeneral.gov 18
Texas State Bar No. 24059754 Office of the Texas Attorney General P.O. Box 12548 Austin, Texas 78711-2458 Phone: 512-936-1414 Fax: 512-936-0545
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Case 2:13-cv-00193 Document 61-1 Filed in TXSD on 11/04/13 Page 1 of 4
Exhibit 1
UNITED STATES OF AMERICA, Plaintiff, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Plaintiff-Intervenors, TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, et al., Movant-Intervenors, v. STATE OF TEXAS, et al., Defendants, TRUE THE VOTE, Movant-Intervenor.
(PROPOSED) ORDER Pursuant to Fed. R. Civ. P. 16 and upon consideration of the parties joint report of the Rule 26(f) meeting and joint discovery/case management plan, the following schedule is hereby ORDERED: 1. Fact discovery shall conclude on August 15, 2014. Notwithstanding the limits set forth in Fed. R. Civ. P. 30(a)(2), Plaintiffs, Plaintiff-Intervenors, and Movant- Intervenors Texas Association of Hispanic Judges and Commissioners, et al. (if intervention is granted) shall be permitted to depose sixty (60) fact witnesses collectively. Likewise, Defendants and Movant-Intervenor True the Vote (if intervention is granted) shall be permitted to depose sixty (60) fact witnesses collectively. 2. The deadline to amend pleadings is August 15, 2014. 3. Expert disclosure under Fed. R. Civ. P 26(a)(2)(A) and disclosure of all expert reports under Fed. R. Civ. P. 26(a)(2)(B) shall be no later than September 5, 2014. Disclosure of rebuttal experts and disclosure of rebuttal reports shall be no later than October 6, 2014. Disclosure of surrebuttal experts and disclosure of surrebuttal reports shall be no later than October 31, 2014. Expert discovery shall conclude on November 21, 2014. 4. Daubert motions shall be filed on or after December 1, 2014. 5. Between October 21, 2014, and December 23, 2014, the parties may engage in limited fact discovery related only to the November 2014 federal election. Notwithstanding Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A), the party responding to discovery must serve or produce, where applicable, answers, objections, and responsive documents within twenty-one (21) days of service. 6. Dispositive motions shall be filed by January 12, 2015; responses shall be filed by February 11, 2015; and replies shall be filed by February 23, 2015. For any dispositive
motions filed prior to January 12, 2015, responses shall be filed within thirty (30) days and replies within ten (10) days after that. 7. The pretrial statement shall be filed two weeks prior to the pretrial conference. 8. The parties will be ready for trial as of March 17, 2015.
_________________________ NELVA GONZALES RAMOS United States District Judge
Exhibit 2
UNITED STATES STATEMENT IN SUPPORT OF ITS PROPOSED SCHEDULE The scheduling order that the plaintiff United States requests (Ex. 1) requires the parties to be ready for trial as of March 17, 2015; the plaintiff Texas State Conference of NAACP and the plaintiff-intervenor Texas League of Young Voters Education Fund join in this request, and the defendant State of Texas does not oppose it. The proposed trial date is based on two factors: (1) the necessity that this Court has a full, complete, and accurate record upon which to render its decision; and (2) the litigation experience of several of the parties in the instant case in litigating a challenge to SB 14 under an expedited schedule last year. The scheduling order provides for nine months of fact discovery, followed by a period of expert discovery and limited fact discovery related to the 2014 general election, then an opportunity to file dispositive motions, and finally, preparation of the necessary pre-trial papers, such as motions in limine and proposed findings of fact and conclusions of law. At the outset, the United States fully understands the gravity of the issues that this case presents. The ability of all qualified citizens to participate fully and equally in the electoral process is fundamental. The United States will seek to avoid any unnecessary delay in providing that ability. At the same time, the United States recognizes that, regardless of eventual outcome, the final decision that this Court renders in this case must be based on the most complete record possible. The United States advocates for a sufficient amount of time to conduct the necessary comparisons of several million records across multiple state and federal databases, to subject the results of those comparisons to the appropriate statistical analyses, and to prepare the necessary reports for the Courts consideration. In addition, the Court must determine whether a discriminatory purpose was among the motivating factors for enacting the legislation. These factors, standing alone, provide sufficient support for implementing the United States proposed schedule.
Examining the previous litigation over SB 14 should obviate any concern that the requested time for fact and expert discovery is not warranted. The State of Texas filed a declaratory judgment action under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, seeking a judicial determination that SB 14 had neither a discriminatory purpose nor would have a discriminatory effect. Texas v. Holder, No. 1:12-cv-128 (D.D.C. 2012). On March 14, 2012, Texas requested a decision by a date that, if the court ruled in its favor, would permit it to implement SB 14 for the November 2012 election. The court granted this request, indicated that it would issue a decision by August 31, 2012, and ordered an expedited trial schedule. In the months that followed, the parties undertook complex and voluminous discovery. To determine which voters in Texas possessed requisite state forms of photographic identification under SB 14, the United States and defendant-intervenors sought data from Texas voter registration, driver license, and license to carry concealed handguns databases. Data discovery in this action will be even more complex. As a result of the expedited trial schedule, the parties did not exchange or present expert testimony on the federal forms of photographic identification permitted by SB 14. Nor did the parties analyze data maintained by other federal agencies pertaining to certain voters with documentary proof of a disability, who may obtain an exemption from SB 14s identification requirements. In finding that Texas had not met its burden under Section 5, the court noted it did so without reliable expert evidence on the number of Texas registered voters who lacked one of the required forms of identification. Texas v. Holder, 888 F. Supp. 2d 113, 138 (D.D.C. 2012). The court observed that the record was incomplete because Texas had sought and received an expedited schedule at the expense of obtaining data related to federal forms of identification. Id. at 120; see also id. at 132.
Here, Texas has already indicated that it will seek data from five federal agencies related to federal forms of allowable photographic identification under SB 14 and exemptions from SB 14s identification requirements based on disability status. The agencies are the Department of Defense, Department of Veterans Affairs, Social Security Administration, State Department, and the Citizenship and Immigration Services. None of these agencies produced any information during the Section 5 declaratory judgment action. This has the potential to magnify the data discovery issues considerably. As with the state databases, these are massive databases that contain large quantities of personal identification information, statutorily protected from disclosure under federal law. Although the parties have already started discussions as to appropriate protective orders and methods of production, it is likely that disputes will arise concerning the appropriate scope and relevance of the discovery that Texas will seek. Based on our past experiences, these disputes are likely to be complex and resolving them will be time consuming. For example, during a seven-week period, the court hearing the Section 5 declaratory judgment action held six telephonic conferences related to protective orders and discovery of data maintained by Texas. Once these issues are resolved, experts will require ample time to analyze the data and produce reports, ensuring that this Court will have a complete and accurate record to make the requisite factual findings. The period of fact discovery included in the United States proposed schedule also anticipates a sufficient period of time to resolve issues related to legislative privilege, deliberative process, and other privileges. In Texas v. Holder, the United States sought discovery from Texas legislators and staff and from executive agencies related to Texass statutory burden under Section 5 to prove that SB 14 was not enacted with a discriminatory purpose. Texas broadly asserted legislative privilege, deliberative process, and other privileges as grounds for
withholding large categories of documents and deposition testimony. The legal issues surrounding these disputes were complicated and necessitated several rounds of briefing. The briefing of privilege issues occurred over the course of two months, from March 22, 2012, through May 30, 2012, and the court issued several orders related to privilege during that period up until June 7, 2012. In this action, the United States again intends to seek discovery from Texas legislators and staff and executive agencies to show that passage of SB 14 was motivated by discriminatory intent. Texas has stated that it will continue to assert, at least as broadly as it did during the declaratory judgment action, that such an inquiry is precluded by legislative privilege. Because the United States expects that it will again be required to compel some portion of the discovery that Texas withholds on the basis of legislative or other privileges, its proposed schedule provides sufficient time for the parties to brief motions to compel, the Court to consider the arguments and issue orders, and the parties to conduct discovery based on those orders. In sum, the Court should enter a scheduling order that provides the parties with an adequate period of time to prepare a complete factual record and an adequate time for the Court to consider the issues that this complex litigation presents. The United States proposal is such a schedule.
Exhibit 3
(PROPOSED) ORDER Pursuant to Fed. R. Civ. P. 16 and upon consideration of the parties joint report of the Rule 26(f) meeting and joint discovery/case management plan, the following schedule is hereby ORDERED: 1. Fact discovery shall conclude on May 2, 2014. Notwithstanding the limits set forth in Fed. R. Civ. P. 30(a)(2), Plaintiffs, Plaintiff-Intervenors, and Movant- Intervenors Texas Association of Hispanic Judges and Commissioners, et al. (if intervention is granted) shall be permitted to depose sixty (60) fact witnesses collectively. Likewise, Defendants and Movant-Intervenor True the Vote (if intervention is granted) shall be permitted to depose sixty (60) fact witnesses collectively. 2. Expert disclosure under Fed. R. Civ. P 26(a)(2)(A) and disclosure of all expert reports under Fed. R. Civ. P. 26(a)(2)(B) shall be no later than May 9, 2014. Disclosure of rebuttal experts and disclosure of rebuttal reports shall be no later than June 6, 2014. Disclosure of surrebuttal experts and disclosure of surrebuttal reports shall be no later than June 13, 2014. Expert discovery shall conclude on July 15, 2014. 3. Daubert motions shall be filed on or after July 22, 2014; responses shall be filed by August 4, 2014; and replies shall be filed by August 11, 2014. 4. Dispositive motions shall be filed by July 22, 2014; responses shall be filed by August 4, 2014; and replies shall be filed by August 11, 2014. For any dispositive motions filed prior to July 22, 2014, responses shall be filed within thirty (30) days, but no later than August 4, 2014, and replies shall be filed within ten (10) days after responses, but no later than August 11, 2014. 5. The pretrial statement shall be filed two weeks prior to the pretrial conference. 6. The parties will be ready for trial as of September 2, 2014.
Exhibit 4
THE VEASEY PLAINTIFFS POSITION WITH RESPECT TO SCHEDULING The Veasey plaintiffs propose a schedule thatunlike the other parties schedulewould provide an opportunity for plaintiffs to obtain relief on behalf of Texas voters in time for the November 2014 elections, the first major turnout elections in which Texas seeks to enforce the Voter ID law. The Veasey plaintiffs believe it is critically important to obtain a decision on SB 14s validity before, not after, the first major elections, and they further believe it is feasible for the parties and the Court to have a trial on such a schedule. The Veasey plaintiffs filed their initial complaint on June 26, 2013, the day after the Supreme Court handed down its decision in Shelby County v. Holder, 133 S. Ct. 2612, and the State of Texas announced its intention to implement SB 14. This Court promptly entered a scheduling order in which trial was scheduled for June 2014. The Veasey plaintiffs then filed an amended complaint, and other parties filed complaints or sought to intervene, within 60 days thereafter. Thus, even if this Courts initial scheduling order were pushed back by 60 days, the parties could still have a trial in time for a decision before the November 2014 elections. Under the schedule proposed by the other parties, however, trial would not occur until March 2015. Expert discovery and some factual discovery would also extend beyond the November 2014 elections. The Court should resist adopting such a schedule at this time. Obviously, if the Court adopts the Veasey plaintiffs schedule, circumstances along the way may indicate that a pre-November 2014 trial is not possible. That issue, however, would remain open for the parties and the Court to consider as circumstances develop. Contrariwise, if the Court adopts the March 2015 trial schedule now, the possibility of a pre-election decision is foreclosed. The Veasey plaintiffs submit that the Court would best serve the parties and the people of Texas by doing all that is possible to ensure, rather than foreclose, the opportunity to decide this case before the next major election in November 2014.
Accordingly, the Veasey plaintiffs propose the following schedule:

Initial Disclosures Due Fact Discovery Ends Expert Reports Due States Expert Rebuttal Reports Due Plaintiffs Expert Reply Reports Due Expert Witness Discovery Deadline Dispositive Motions Due 1 Dispositive Motion Responses Due Replies to Dispositive Responses Due Trial November 21, 2013 May 2, 2014 May 9, 2014 June 6, 2014 June 13, 2014 July 15, 2014 July 22, 2014 August 4, 2014 August 11, 2014 September 2, 2014
In proposing the foregoing schedule, the Veasey plaintiffs are mindful of the need to develop a complete factual record in this case, but believe this schedule would permit the development of such a record. Adopting the Veasey plaintiffs proposed schedule does not guarantee that the litigation process will be problem-free. Texas will be objecting to some discovery based on legislative privilege. Texas and the United States will be producing data from large databases that will take time and effort to compile. But the Court could decide disputes over these issues early to ensure that the discovery process moves along quickly and smoothly. Indeed, the D.C. court in the Section 5 Voting rights Act case monitored the case closely and quickly resolved discovery disputes by telephone conferences.
The schedule includes time for a dispositive motion, such as a summary judgment motion, as well as Daubert motions relating to expert testimony. As to the summary judgment issue, the schedule contemplates that the Court might well choose to carry the motion with the case, i.e., hear the evidence before deciding the motion. In this complex case involving fundamental rights of Texas voters, surely a court would be on sound ground in holding that the fullest possible record would best serve the interests of justice. Likewise, as to any Daubert motions, the Court might choose to decide those motions at the optimum time, i.e., as the case develops and the evidence is presented, rather than in isolation ahead of time.
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In support of the Veasey plaintiffs proposed schedule, it is important to note that the parties are not starting from scratch in this case. A three-judge federal court in Washington, D.C. held a week-long trial in July 2012 and concluded that the Texas photo voter ID law discriminated against minority voters. The parties took dozens of depositions in that case, and the record included hundreds of exhibits and hundreds of pages of trial testimony. The significant evidence the parties have already amassed should allow a shorter discovery schedule here, and a trial before the November 2014 elections.
Exhibit 5
(PROPOSED) ORDER Pursuant to Fed. R. Civ. P. 16 and upon consideration of the parties joint report of the Rule 26(f) meeting and joint discovery/case management plan, the following schedule is hereby ORDERED: 1. The deadline for adding new parties is December 6, 2013. 2. The deadline to amend pleadings deadline is May 1, 2014. 3. Fact discovery shall conclude on August 15, 2014. Notwithstanding the limits set forth in Fed. R. Civ. P. 30(a)(2), Plaintiffs, Plaintiff-Intervenors, and Movant- Intervenors Texas Association of Hispanic Judges and Commissioners, et al. (if intervention is granted) shall be permitted to depose sixty (60) fact witnesses collectively. Likewise, Defendants and Movant-Intervenor True the Vote (if intervention is granted) shall be permitted to depose sixty (60) fact witnesses collectively. 4. Expert disclosure under Fed. R. Civ. P 26(a)(2)(A) and disclosure of all expert reports under Fed. R. Civ. P. 26(a)(2)(B) shall be no later than September 5, 2014. Disclosure of rebuttal experts and disclosure of rebuttal reports shall be no later than October 6, 2014. Disclosure of surrebuttal experts and disclosure of surrebuttal reports shall be no later than October 31, 2014. Expert discovery shall conclude on November 21, 2014. 5. Daubert motions shall be filed on or after December 1, 2014. 6. Between October 21, 2014, and December 23, 2014, the parties may engage in limited fact discovery related only to the November 2014 federal election. Notwithstanding Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A), the party responding to discovery must serve or produce, where applicable, answers, objections, and responsive documents within twenty-one (21) days of service.
7. Dispositive motions shall be filed by January 12, 2015; responses shall be filed by February 11, 2015; and replies shall be filed by February 23, 2015. For any dispositive motions filed prior to January 12, 2015, responses shall be filed within thirty (30) days and replies within ten (10) days after that. 8. The pretrial statement shall be filed two weeks prior to the pretrial conference. 9. The parties will be ready for trial as of March 17, 2015.
Exhibit 6
UNITED STATES OF AMERICA, Plaintiff, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Plaintiff-Intervenors, TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, et al., Movant-Intervenors, v. STATE OF TEXAS, et al., Defendants, TRUE THE VOTE, Movant-Intervenor. Civil Action No. 2:13-cv-263 (NGR)
TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Plaintiffs, v. JOHN STEEN, et al., Defendants. Civil Action No. 2:13-cv-291 (NGR)
AGREEMENT CONCERNING PRODUCTION FORMAT Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, the parties agree to adhere to the following methods of production of documents and electronically stored information (ESI): Provisions for the Production of Documents and ESI 1. With the exception of the items specified in paragraphs 10-18, below, the parties agree
that documents and ESI that can be accurately represented in black and white shall be scanned or converted to single page Tagged Image File Format (TIFF or .tiff format) files, using CCITT Group IV compression. All images shall be scanned or converted at 300 d.p.i. and reflect, without visual degradation, the full and complete information contained on the original document. Photographs, color brochures, or other like documents that cannot be accurately represented in black and white or documents that are primarily in color shall be scanned or converted to JPEG files using a high quality setting. The parties will honor reasonable requests for either the production of the original document for inspection and copying or production of any color image of the document, thing, or ESI. All images shall be saved in a directory named IMAGES. Spreadsheets (e.g., Excel, Quattropro, or .csv) and presentations (e.g., Powerpoint)
shall be produced in native form. Native files shall be saved in a directory named NATIVE with the proper Windows-associated extension. 2. The parties agree to produce all imaged documents with a legible, unique page identifier
(Bates Number) electronically burned onto the image in the lower right hand corner orif placement in the lower right hand corner would obliterate, conceal, or interfere with any information from the source documentanother blank portion of the TIFF image. The Bates numbering convention shall be in the format XXX######## where XXX represents the short character abbreviation for the producing party and ######## represents the eight-digit sequential number of the page being produced by that party. Documents produced by the parties shall be abbreviated as follows: Veasey Plaintiffs = VES, United States of America = USA, Texas League of Young Voters Education Fund = LYV, Texas State Conference of NAACP Branches = TSC, and Defendants = TEX. For example, the first Bates labeled document produced by the United States should be labeled USA00000001. Images shall be named as the [Bates Number].tif or [Bates Number].jpg. Native files shall be named as [Bates Number].ext, where ext denotes the native file extension. 3. The parties agree to produce documents on CD-ROM, DVD, or external hard drive (the
Production Media), depending on the volume of the production. Each piece of Production Media shall identify a production number corresponding to the production wave and a number of the volume of material in the wave. For example, if the first production wave by a party comprises document images on three hard drives, the party shall label each hard drive in the following manner in numeric sequence: 001.001; 001.002; 001.003. If the second production comprises three DVDs, the party shall label each DVD in the following manner in numeric sequence: 002.001; 002.002; 002.003. Additional information that shall be
identified on the physical Production Media includes: (1) the case number, (2) the producing partys name, and (3) the production date. Where practicable, the type of materials on the media (e.g., Documents, OCR Text, etc.) and the Bates Number range of the materials on the Production Media shall also be denoted thereon; where such material cannot reasonably be listed on the Production Media, they shall be provided in an accompanying letter. 4. The parties agree not to produce documents or ESI using FTP, SFTP, or other hosted
locations without notifying all parties. All such productions must include a single archive file per production wave (e.g., .zip, .rar, or .cab), labeling of such archives in numerical sequence in accordance with paragraph 4, supra, and immediate notice to all parties after a new archive has been uploaded to a hosted location. All requirements of this agreement shall apply to any production using FTP, SFTP, or other hosted locations. 5. The parties shall produce an image cross reference file in Concordance Opticon .log
format, to accompany the produced images. The image cross reference file shall provide the Bates Numbers, relative path to images, and document break indicators. The image cross reference file shall be provided in a directory named DATA. 6. The parties shall produce a load file containing the fields specified in Attachment A.
The load file shall be provided in a directory named DATA, in a Concordance .DAT file format with standard delimiters. The parties agree not to include OCR/extracted text in the .DAT file. 7. For documents that exist natively in electronic format and that have not been redacted,
the parties shall produce extracted text files reflecting the full text that was electronically extracted from the original native file. For all scanned hard-copy documents, any electronic documents that require redaction prior to production and native files for which native text is not available (e.g., graphic files and some PDFs), the parties will produce corresponding Optical
Character Recognition (OCR) text files. The OCR and extracted text files shall be produced in ASCII text format and shall be labeled and produced on Production Media in accordance with the provisions of paragraph 3, above. These text files will be named with the unique Bates Number of the first page of the corresponding document followed by the extension .txt. The OCR and extracted text files shall be produced in a manner suitable for importing the information into Concordance. OCR and extracted text files shall be saved in a directory named TEXT. All documents should have an accompanying text file, even if that file is of zero size. 8. Irrespective of which party issued the requests for production of documents, tangible
things, and ESI, the producing party shall serve a copy of responsive production to each of the other parties. Format for the Production of ESI 9. E-mail will be produced as image files with related searchable text and available
metadata as described in Attachment A. 10. All spreadsheets, e.g., Excel or Quattropro, should be produced only in native format
with related searchable text and available metadata as described in Attachment A. Spreadsheets should not be imaged, but a placeholder image must be included to represent the spreadsheet. 11. All presentations, e.g., Powerpoint, should be produced only in native format with related
searchable text and available metadata as described in Attachment A. Presentations should not be imaged, but a placeholder image must be included to represent the presentation. 12. The parties will meet and confer regarding the production of video, audio, and any file
stored in a proprietary formats (i.e., non-Microsoft or Corel Suite compatible files). Any such conference shall be held within fourteen (14) days (unless the parties agree to a later date) of identification of such materials in initial disclosures, a direct request for the production of such
materials, or a determination by a producing party that such materials are responsive to a broader request, and any such conference shall include the custodians of the materials, as well as technicians with sufficient knowledge to explain the content and format of the material at issue. 13. The parties will meet and confer regarding the production of records or data from systems
of record, databases, or federal agency comparisons in an agreed upon format. Any such conference shall be held within fourteen (14) days (unless the parties agree to a later date) of identification of databases in initial disclosures, a direct request for the production of databases, or a determination by a producing party that databases are responsive to a broader request, and any such conference shall include the custodians of the databases, as well as technicians with sufficient knowledge to explain the content and format of the databases. 14. Other electronic documents not specifically discussed elsewhere will be produced as
image files with related searchable text and available metadata as described in Attachment A. If said documents in their original form cannot be converted to TIFF as described above, the parties will promptly meet and confer concerning the form of such production. 15. Documents with children (e.g., email with attachments, archive files, and files with
embedded documents) shall be treated as separate documents. Each document (parent and child) shall have the same attachment range as a way of identifying the group, as specified in the Attachment Range field of Attachment A. 16. In the event that a party needs to redact a portion of a document for which only a native
file is produced (e.g., Excel and PowerPoint), the parties will meet and confer regarding production of the redacted document.
17.
Encryption or password protection of any file is to be removed or the passwords
provided. If software is required to open encrypted files, the party producing the encrypted files must provide the software. Search of Electronically Stored Information 18. To the extent that any party intends to limit the scope of a response to a request for
production through the use of search terms, the parties agree to meet and confer regarding the responding partys search of ESI, including the partys technological search capability and the most effective means of defining search criteria, such as date ranges, custodians, and key words. 19. The parties agree that the use of an agreed-on search process or set of search criteria shall
not be construed as a waiver of any partys right to request subsequent searches and productions, particularly where there is a showing that the agreed-to search process and criteria have resulted in inadequate productions or failed to identify relevant materials. The parties also reserve their right to object to any additional requests or subsequent searches. 20. The parties agree that documents identified by search terms may be reviewed for
privilege, confidentiality, relevance, or responsiveness prior to production. Deduplication 21. The parties agree to use MD-5 hash values to deduplicate exact duplicate documents
across custodians. As noted in Attachment A, MD-5 hash values will be calculated at the time of collection or processing for all categories of ESI. Paper Documents 22. The parties agree to produce hard-copy documents as TIFF or JPEG files, as described in
paragraphs 1-3, above.
23.
To the extent possible, the parties will endeavor to apply unitization practices consistent
with the following description: Each page of a hard copy document shall be scanned into an image and if a document is more than one page, the unitization of the document and any attachments shall be maintained as it existed in the original when creating the image file. For documents that contain fixed notes, (e.g., post-it notes), the pages will be scanned both with and without the notes and those pages will be treated as part of the same document. The relationship of documents in a document collection (e.g., cover letter and enclosures, email and attachments, binder containing multiple documents, or other documents where a parent-child relationship exists between the documents) shall be maintained through the scanning or conversion process. If more than one level of parent-child relationship exists, documents will be kept in order, but all will be treated as children of the initial parent document. Such information shall be produced in conformity with the Attachment Range field in Attachment A in a manner which enables the parent-child relationship among documents in a document collection to be reconstituted by the receiving party in Concordance. Privilege Logs 24. The parties agree that for each document, tangible thing, or ESI withheld based on an
asserted claim of privilege or protection, the party asserting the privilege must produce a privilege log pursuant to Rule 26(b)(5)(a) of the Federal Rules of Civil Procedure. At minimum, the privilege log must contain a Bates range, the type of document or ESI, the title of the document or ESI, the date of the creation or transmission of the document or ESI, the author or authors of the document or ESI, the recipients of the document or ESI (including individuals copied or blind-copied), whether the document or ESI contains attachments, the privilege or privileges claimed, and the basis for the assertion of privilege or protection.
25.
The parties agree to provide sufficient information privilege logs to establish the elements
of each asserted privilege. See, e.g., Taylor Energy Co. v. Underwriters at Lloyds of London, No. C.A. 09-6383, 2010 WL 3952208 (E.D. La. Oct. 7, 2010). However, the Parties need not note on a privilege log any documentincluding but not limited to draft documentsexchanged solely among counsel, individuals working directly on behalf of counsel in connection with this litigation (e.g., paralegals, analysts, and litigation support staff), or supervisory staff of the U.S. Department of Justice or the Office of the Texas Attorney General. 26. E-mail attachments must be separately identified and described if they are withheld based
on an assertion of privilege or protection. Inadvertent Production of Documents and Clawback 27. The parties agree that a disclosure of communications, documents, tangible things, and
ESI covered by the attorney-client privilege, work product protection, or governmental privileges does not operate as a waiver in this proceeding if (1) the disclosure is inadvertent and is made in connection with this litigation or prior proceedings under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, and (2) the holder of the privilege or protection took reasonable precautions to prevent disclosure and took reasonably prompt measuresonce the holder knew or should have known of the disclosureto rectify the error. 28. Any party receiving material it believes may have been inadvertently produced that
includes privileged or protected information shall promptly notify the producing party. Within fourteen (14) days after such notification, the producing party may request in writing that such materials be returned or destroyed. Upon such written requestand except in the event that the requesting party disputes the claim of privilege or protectionany materials that the producing party deems to contain inadvertently disclosed materials shall be promptly returned to the
producing party or destroyed at the producing partys option. This includes all copies electronic or otherwiseof any such materials and the parties agree that no further copies of the inadvertently disclosed materials will be made. In the event that copies of inadvertently produced materials that are privileged or protected are captured on a partys back-up media used for disaster recovery, the parties will over-write those copies according to their established backup procedures. 29. If privileged or protected information is contained within an item of otherwise
discoverable material, the parties recognize that the requesting party may not be able to destroy only the portion of the item of the disclosed material that is privileged or protected. Instead, the requesting party may need to destroy the privileged or protected information along with all of the otherwise discoverable material within that item. Whenever that is the case, the producing partywithin fourteen (14) days of notification of the inadvertent disclosureshall provide the requesting party with a replacement copy of the item materials that are not privileged or protected and are otherwise discoverable. 30. In the event that the requesting party disputes the producing partys assertions with
respect to the inadvertently disclosed material, such material shall be sequestered and retained by and under the control of the requesting party for the purpose of seeking determination of the issue from the Court. If the Court determines that privilege or protection has been waived or that the inadvertently disclosed material is not subject to by any applicable privilege or protection, the requesting party may use the material for any purposes otherwise permitted by law or rule. If the Court determines that the inadvertently disclosed material is subject to an applicable privilege or protection, the requesting party must return or destroy the materials at issue, as provided above.
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31.
If the producing party does not request the return or destruction of material within
fourteen (14) days of notification by the receiving party of the receipt of material it believes was inadvertently produced, the producing party waives any claim of privilege or protection as to the material. Sample Production 32. On or before fourteen (14) days following the effective date of this Agreement, the
parties shall exchange a sample production of documents formatted to be consistent with this Agreement. The sample production shall contain a combination of scanned paper files and ESI and shall include at least one spreadsheet and one email. The production need not be relevant to this case, as it is intended only to test the adequacy of the specifications in this Agreement and the compatibility of the parties systems. If any party reports problems with the sample productions, the parties shall confer regarding the terms of this agreement. Duty to Supplement Discovery Responses 33. The parties must supplement their disclosures and responses in a timely manner if a party
learns that a disclosure was materially incorrect or incomplete, in accordance with Federal Rule of Civil Procedure 26(e)(1)(A). Supplementation must be made at appropriate intervals during discovery and with special promptness as the trial date approaches. Costs of Document Production 34. Each party shall bear the costs of producing its own documents, things, and ESI.
Requirement to Confer 35. Before filing any motion regarding the terms of this Agreement, compliance with this
Agreement, or any other discovery dispute, the parties will confer in a good faith attempt to resolve such disputes.
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Dated: November 4, 2013 For the Veasey Plaintiffs /s/ Chad W. Dunn CHAD W. DUNN K. SCOTT BRAZIL Brazil & Dunn 4201 Cypress Creek Parkway Suite 530 Houston, Texas 77068 J. GERALD HEBERT Campaign Legal Center 215 E Street, NE Washington, D.C. 20002 NEIL G. BARON Law Office of Neil G. Baron 914 FM 517 West Suite 242 Dickinson, Texas 77539 DAVID RICHARDS Richards, Rodriguez & Skeith LLP 816 Congress Avenue Suite 1200 Austin, Texas 78701 ARMAND G. DERFNER Derfner, Altman & Wilborn, LLC P.O. Box 600 Charleston, South Carolina 29402 LUIS ROBERTO VERA, JR. Law Offices of Luis Vera Jr. 1325 Riverview Towers 111 Soledad San Antonio, Texas 78205 CRAIG M. WATKINS TERESA G. SNELSON Dallas County District Attorneys Office 411 Elm Street Fifth Floor Dallas, Texas 75202
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For the United States of America KENNETH MAGIDSON United States Attorney Southern District of Texas JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division /s/ Elizabeth S. Westfall T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO ANNA M. BALDWIN DANIEL J. FREEMAN Attorneys, Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 JOHN A. SMITH III Assistant United States Attorney 800 N. Shoreline, Suite 500 Corpus Christi, Texas 78401
For NAACP Plaintiffs:
/s/ Ezra D. Rosenberg EZRA D. ROSENBERG Dechert LLP 902 Carnegie Center, Suite 500 Princeton, New Jersey 08540 STEVEN B. WEISBURD AMY L. RUDD LINDSEY B. STELCEN Dechert LLP 500 W. 6th Street, Suite 2010 Austin, Texas 78701 ROBERT A. KENGLE MARK A. POSNER SONIA KAUR GILL ERANDI ZAMORA Lawyers Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, D.C. 20005 WENDYWEISER MYRNA PREZ VISHAL AGRAHARKAR Jennifer Clark The Brennan Center for Justice at NYU Law School 161 Avenue of the Americas, Floor 12 New York, New York 10013 ROBERT NOTZON The Law Office of Robert Notzon 1502 West Avenue Austin, Texas 78701 Gary Bledsoe PotterBledsoe, L.L.P. 316 West 12th Street, Suite 307 Austin, Texas 78701
KIM KEENAN MARSHALL TAYLOR VICTOR GOODE NAACP 4805 Mt. Hope Drive Baltimore, Maryland 21215 JOSE GARZA Law Office of Jose Garza 7414 Robin Rest Drive San Antonio, Texas 98209 CLAY BONILLA DANIEL G. COVICH The Law Offices of William Bonilla, P.C. 2727 Morgan Ave. Corpus Christi, Texas 78405
13
For Texas League of Young Voters Educational Fund, et al. Intervenors: /s/ Ryan P. Haygood SHERRILYN IFILL CHRISTINA SWARNS RYAN P. HAYGOOD NATASHA M. KORGAONKAR LEAH C. ADEN NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, New York 10006 DANIELLE CONLEY JONATHAN PAIKIN KELLY P. DUNBAR SONYA L. LEBSACK Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave., NW Washington, D.C. 20006
For the State of Texas et al. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General /s/ John B. Scott JOHN B. SCOTT Deputy Attorney General 209 West 14th Street Austin, Texas 78711
14
Attachment A
Name of Field Type of field Text Word Processing or PDFs Bates number for Bates number for the TIFF/jpg the TIFF/jpg image of the first image of the first page page Bates number for Bates number for the TIFF/jpg the TIFF/jpg image of the last image of the last page page Bates range Bates range starting with the starting with the first page of the first page of the parent document parent document through the last through the last page of the last page of the last attachment. attachment or Blank if there are embedded file. no child Included only if documents part of a group of documents like an email or zip file. E-mail Contents Spreadsheets Bates number of the placeholder page Bates number of the placeholder page Bates range starting with the first page of the parent document through the last page of the last attachment or embedded file. Included only if part of a group of documents like an email or zip file. Digital Photos Bates number for the TIFF/jpg image of the first page Bates number for the TIFF/jpg image of the last page Bates range starting with the first page of the parent document through the last page of the last attachment or embedded file. Included only if part of a group of documents like an email or zip file. Paper Bates number for the TIFF/jpg image of the first page Bates number for the TIFF/jpg image of the last page Bates range of all documents that were grouped together/ physically attached by clips, staples, or binding or folder. Blank if a single non grouped document
Begin_Bates
End_Bates
Text
Attachment Range
Text
Name of Field
Type of field Text
E-mail The name of the person who had primary control over the location from which the document was collected From field To field CC field BCC field Subject field The date the message was sent (format: 9/28/2012) The time the message was sent (format: 11:16:46 AM) The MD5 hash value calculated when the file was collected or processed. The path to the native file on the production media
Custodian
Author To CC BCC Subject DateSent
Paragraph Paragraph Paragraph Paragraph Paragraph Date
Word Processing or PDFs The name of the person who had primary control over the location from which the document was collected <blank> <blank> <blank> <blank> <blank> <blank>
Contents Spreadsheets The name of the person who had primary control over the location from which the document was collected <blank> <blank> <blank> <blank> <blank> <blank>
Digital Photos The name of the person who had primary control over the location from which the document was collected <blank> <blank> <blank> <blank> <blank> <blank>
Paper The name of the person maintaining the file from which the paper was obtained
<blank> <blank> <blank> <blank> <blank> <blank>
TimeSent
Text
<blank>
<blank>
<blank>
<blank>
MD5Hash
Text
Prod_FilePath
Paragraph
The MD5 hash value calculated when the file was collected or processed. The path to the native file on the production media
<blank>
<blank>
Name of Field
Type of field Paragraph
E-mail Original name of the native file when the file was collected or processed Document request numbers for which this document is responsive.
Orig_filename
Responsive to
Text
Word Processing or PDFs Original name of the native file when the file was collected or processed Document request numbers for which this document is responsive.
Contents Spreadsheets Original name of the native file when the file was collected or processed Document request numbers for which this document is responsive
Digital Photos Original name of the native file when the file was collected or processed Document request numbers for which this document is responsive
Paper <blank>
Document request numbers for which this document is responsive

US v. Texas Joint Scheduling Proposal

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Case 2:13-cv-00193 Document 61 Filed in TXSD on 11/04/13 Page 1 of 19

Civil Action No. 2:13-cv-263 (NGR)

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Civil Action No. 2:13-cv-263 (NGR)

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_________________________ NELVA GONZALES RAMOS United States District Judge

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Civil Action No. 2:13-cv-263 (NGR)

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_________________________ NELVA GONZALES RAMOS United States District Judge

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Accordingly, the Veasey plaintiffs propose the following schedule:

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Civil Action No. 2:13-cv-263 (NGR)

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_________________________ NELVA GONZALES RAMOS United States District Judge

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

paragraphs 1-3, above.

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