UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PLAINTIFFS MOTION FOR CLARIFICATION OF SCHEDULING ORDER AND INCORPORATED MEMORANDUM OF LAW

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1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA FLORIDA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), as an organization and representative of its members; et al., Plaintiffs, Civil No. 4:07cv402 SPM/WCS vs. KURT S. BROWNING, in his official capacity as Secretary of State for the State of Florida, Defendant. PLAINTIFFS MOTION FOR CLARIFICATION OF SCHEDULING ORDER AND INCORPORATED MEMORANDUM OF LAW Plaintiffs hereby move for clarification of this Court s Scheduling Order for Discovery, Mediation and Trial [doc. 177], and seek approval of a June 1, 2009, deadline for fact discovery as well as expert discovery. Notwithstanding the parties earlier scheduling report [doc. 171], delays in discovery threaten to prejudice Plaintiffs ability to discover information essential to the resolution of the case. If granted, Plaintiffs request would preserve entirely the motion and trial schedule set by the Court in its Scheduling Order, and would clarify that discovery in anticipation of the Court s motion and trial schedule should proceed in a manner designed to limit the burden on parties and non-parties, while ensuring just access to information essential to the disposition of Plaintiffs claims. In further support of this motion, Plaintiffs state:

2 1. On September 17, 2007, Plaintiffs filed a nine count complaint, asserting that Florida s no match, no vote law, Section (6), Fla. Stat. ( Subsection 6 ), violates rights granted to Plaintiffs and their members by, and conflict with preempting provisions of, the Help America Vote Act of 2002 ( HAVA ) (Counts I-III), the Voting Rights Act ( VRA ) (Counts IV-V), the National Voter Registration Act ( NVRA ) (Count VI), and the U.S. Constitution (Counts VII-IX) [doc. 1]. 1 On that same date, Plaintiffs moved for entry of a preliminary injunction on those claims requiring only limited discovery: their claims under HAVA (Counts I-III), the materiality provision of the VRA (Count IV), and the First Amendment and Equal Protection Clause of the Constitution (Counts VII-VIII) [doc. 4, 5]. In part because of the need for further discovery to prosecute adequately their due process claim (Count IX), Plaintiffs did not move for preliminary injunctive relief with respect to this claim. See Memorandum of Law in Support of Plaintiffs Motion for Preliminary Injunction 11 [doc. 5]. 2. On October 10, 2007, the Secretary moved to dismiss the Amended Complaint [doc. 23]. After expedited discovery anticipating the voter registration deadline for Florida s upcoming presidential preference primary election, the Court heard argument on Plaintiffs motion for preliminary injunction and the Secretary s motion to dismiss on December 11, One week later, the Court issued two orders. The first found that Plaintiffs had standing to prosecute their claims [doc. 106]. The second granted a preliminary injunction, finding that Plaintiffs demonstrated a strong likelihood of success on the 1 On September 21, 2007, Plaintiffs amended the complaint, adding the Southwest Voter Registration and Education Project as a plaintiff. See Amended Complaint [doc. 12]. 2

3 merits of their claims under HAVA and the materiality provision of the VRA [doc. 105]. Because these statutory claims could support the requested relief, the Court declined to reach Plaintiffs constitutional arguments on the preliminary injunction motion; however, the Court found that the Plaintiffs stated constitutional claims upon which relief could be granted, and therefore denied the Secretary s motion to dismiss those Counts [doc. 105 at 21-25]. The Court dismissed Plaintiffs claims under Section Two of the VRA (Count V) and the NVRA (Count VI). The Secretary appealed, and on April 3, 2008, the Eleventh Circuit affirmed this Court s order on standing, but reversed the order granting a preliminary injunction on the statutory grounds. Florida State Conference of the NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008). 4. On April 15, 2008, Plaintiffs renewed their motion for a preliminary injunction under the First Amendment and Equal Protection Clause of the Constitution (Counts VII-VIII) [doc. 132]. Recognizing the upcoming voter registration deadlines for Florida s primary and general elections, and the increasing demands on state and county official time in preparing for those elections, this Court set an expedited briefing schedule leading to an evidentiary hearing on the motion on June 6, On May 19, 2008, in materials presented with the final authorized brief before the hearing, the Secretary disclosed newly adopted procedures purporting to modify the operation and practical effect of Subsection 6 [docs. 139, 141]. Plaintiffs filed an emergency motion to compel limited and expedited depositions pertaining to these procedures [doc. 142], which the Court granted [doc. 145]. No further discovery was taken for purposes of that hearing. 3

4 5. On June 5, 2008, the eve of the hearing on Plaintiffs Motion for Preliminary Injunction, Governor Crist signed into law a bill amending Subsection 6 [doc. 150.] The Court considered Plaintiffs motion in light of the amended statute, which it described as a significant change [doc. 156 at 3-4, 19]. With no record evidence concerning the implementation of the newly amended statute, and little evidence of the actual impact of the new procedures disclosed on May 19, 2008, the Court denied Plaintiffs renewed motion for preliminary injunction on June 24, 2008 [doc. 156]. 6. The parties are now proceeding to final adjudication of Plaintiffs claims, including Plaintiffs claim of a deprivation of due process (Count IX). Part of the alleged harm in this case is the allegation that under Subsection 6, citizens do not receive sufficient notice to understand that the State has blocked their attempt to register to vote, or to understand how to correct the State s failure. In those circumstances, the State s election officials are in sole possession of the best evidence of the extent of the harm caused by the challenged statute, and of the procedures causing or mitigating that harm. 7. Plaintiffs discovery requests have attempted to reconcile the role of the State and county election officials as the entities possessing the evidence most directly relevant to the case with the need to limit burdens on these officials as they conduct the State s elections. Following this Court s June 2008 order, Plaintiffs did not seek further discovery until after the state s primary election on August 26, On September 18, 2008, Plaintiffs submitted interrogatories and a request for documents narrowly targeted at harms materializing in the 2008 general election, and tiered to minimize the burden on the State; on October 15, 2008, the State objected to the requests as premature, pending a conference under Rule 26(f) of the Federal Rules of Civil Procedure. In order to resolve 4

5 their discovery dispute with minimal disruption to the pre-election activities of Florida s elections officials, and without intervention of the court, the parties agreed to a compromise under which the Secretary treated certain of Plaintiffs discovery requests as requests for public records, and produced limited documents. 8. The parties held their Rule 26(f) conference on November 21, 2008, and filed a joint scheduling report in which they proposed to complete fact discovery by March 31, 2009, and expert discovery by June 1, 2009 [doc. 171]. 9. On February 12, 2009, this Court issued a scheduling order setting a final discovery deadline of June 1, 2009, with mediation, motions and trial (if necessary) to follow. The Court also determined that [t]o the extent not in conflict with this order, the parties scheduling report (doc. 171) will control the matters set forth therein [doc. 177]. It is not clear under this order whether the Court intended to preserve the parties proposed separate deadlines for fact and expert discovery, or to set a final deadline for the completion of all discovery; it is therefore unclear whether the Court s deadline for fact discovery is March 31, 2009, or June 1, On December 23, 2008, the Secretary served a request for production on Plaintiffs. Plaintiffs timely provided responsive discovery on January 22, 2009, with a supplemental response on February 12, On February 5, 2009, the Secretary apprised Plaintiffs that it continued to treat Plaintiffs September 18, 2008, discovery request as invalid, despite the intervening Rule 26(f) conference. Despite disagreement with the Secretary s position, to resolve any potential controversy, on February 10, 2009, Plaintiffs served the Secretary with interrogatories and a request for documents that were substantially similar to those served 5

6 on September 18, Those discovery requests include a request for records maintained by the State indicating the number and identity of individuals who attempted to register to vote in 2008 but were prevented from doing so because of Subsection 6. At this time, the Secretary has neither objected to those requests nor produced any responsive materials Recognizing that a timely response to Plaintiffs interrogatories and document requests would render depositions either more targeted and less burdensome, or entirely unnecessary, Plaintiffs have attempted to avoid undue burden by thus far refraining from conducting depositions of the Secretary or his agents, before the Secretary s production is complete. However, if the deadline for fact discovery is March 31, 2009, the Secretary s failure to respond timely to Plaintiffs interrogatories and document requests is likely to prejudice Plaintiffs ability to acquire information essential to the resolution of their claims. 13. In the absence of any substantial discovery from the Secretary since June 10, 2008, Plaintiffs have also sought information from non-party county supervisors of elections. Because Plaintiffs wished to avoid unnecessary burden on these supervisors, and recognizing that the Secretary s production would best identify the counties in which Subsection 6 had the greatest impact, Plaintiffs issued a first round of subpoenas to only seven of Florida s 67 county supervisors. Four counties have timely responded; the remaining three counties have, in good faith, begun to respond, but have requested more 2 The Secretary recently requested a two-week extension of the due date for response to these February 10 interrogatories and request for documents. Plaintiffs consented, despite the fact that the Secretary had been apprised of the substance of the discovery requests since September However, that accommodation to the Secretary now threatens to prejudice Plaintiffs absent granting the relief requested here. 6

7 time in which to do so. If the deadline for fact discovery is March 31, 2009, these counties need for additional response time will prejudice Plaintiffs ability to acquire information essential to the resolution of their claims. Furthermore, because the Secretary has not timely responded with discovery that will identify the counties where further discovery is necessary, Plaintiffs cannot yet acquire information that may be essential to the resolution of their claims without requesting discovery of all 67 county supervisors. 14. This Court has broad discretion under the Federal Rules of Civil Procedure to schedule and efficiently adjudicate matters, including pretrial discovery. Perez v. Miami-Dade County, 297 F. 3d 1255, 1263 (11th Cir. 2002). Those same rules strongly favor full discovery whenever possible. Farnsworth v. Procter & Gamble Co., 758 F. 2d 1545, 1547 (11th Cir. 1985). A deadline for fact discovery of June 1, 2009, will allow adequate time to acquire information essential to the just adjudication of the claims at issue in this case: it will allow the three subpoenaed counties who have not yet fully complied with Plaintiffs subpoenas sufficient time to respond; it will presumably allow the State to respond to Plaintiffs existing discovery requests without the need for a motion to compel; and it will allow adequate time for limited discovery to clarify ambiguities in that production, including limited discovery of any additional counties identified in the State s production as possessing information critical to the just adjudication of the case. 15. Moreover, a June 1, 2009, deadline for fact discovery preserves entirely the remainder of the schedule set in this Court s February 12, 2009, order with respect to mediation, dispositive motions, and trial (if necessary) [doc. 177]. 7

8 16. Accordingly, Plaintiffs move for clarification of the Court s February 12, 2009, order to establish a deadline for fact discovery of June 1, In the alternative, Plaintiffs move for revision of that order to allow for discovery of information essential to the just adjudication of the claims at issue in this case, and establishing a June 1, 2009, deadline for fact discovery. A proposed order is attached as Exhibit A. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request entry of a scheduling order for discovery substantially in the form attached as Exhibit A. N.D. FLA. LOC. R. 7.1 CERTIFICATION Pursuant to N.D. Fla. Loc. R. 7.1(B), undersigned counsel states that he has conferred with Defendant s counsel, Andy Bardos and Allen Winsor, and that the parties are unable to resolve by agreement the issues raised in the motion. Dated: March 16, 2009 s/glenn T. Burhans, Jr. GLENN T. BURHANS, JR. FLA. BAR NO EAST COLLEGE AVENUE TALLAHASSEE, FLORIDA TEL. (850) FAX (850) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP ROBERT A. ATKINS D. MARK CAVE LAUREN M. ROTHENBERG 1285 AVENUE OF THE AMERICAS NEW YORK, NEW YORK TEL. (212) FAX (212)

9 BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW JUSTIN LEVITT J. ADAM SKAGGS MYRNA PÉREZ 161 AVENUE OF THE AMERICAS, 12 TH FLOOR NEW YORK, NEW YORK TEL. (212) FAX (212) ADVANCEMENT PROJECT ELIZABETH S. WESTFALL 1730 M. STREET, NW, SUITE 910 WASHINGTON, DC TEL. (202) FAX (202) PROJECT VOTE YOLANDA SHEFFIELD 739 8TH STREET SE, SUITE 202 WASHINGTON, DC TEL. (202) FAX (202) Counsel for Plaintiffs 9

10 CERTIFICATE OF SERVICE Undersigned counsel herby certifies that a copy of the foregoing Motion was served via the Court s CM/ECF electronic filing system this day, March 16, 2009, upon the following counsel of record: Peter Antonacci Allen Winsor Andy V. Bardos GrayRobinson, P.A. Post Office Box Tallahassee, Florida Counsel for Defendant Kurt Browning s/glenn T. Burhans, Jr. GLENN T. BURHANS, JR. FLA. BAR NO EAST COLLEGE AVENUE TALLAHASSEE, FLORIDA TEL. (850) FAX (850) TAL 451,512,037v