Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, v. Plaintiff, ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, ERIC KENNIE, et al., Defendant. Defendant-Intervenors, TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Defendant-Intervenors, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Defendant-Intervenors, TEXAS LEGISLATIVE BLACK CAUCUS, et al., Defendant-Intervenors, VICTORIA RODRIGUEZ, et al., Defendant-Intervenors. CASE NO. 1:12-CV (RMC-DST-RLW Three-Judge Court REPLY MEMORANDUM IN SUPPORT OF DEFENDANT ERIC H. HOLDER S MOTION FOR PROTECTIVE ORDER Defendant Eric H. Holder, Jr., in his official capacity as Attorney General of the United States ( Attorney General, respectfully submits this reply memorandum in support of the

2 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 2 of 11 Attorney General s motion for a protective order to shield the Attorney General from responding to certain requests for admission propounded by the State of Texas s ( Texas First Requests for Admission to the United States of America. 1 The Attorney General s motion should be granted. First, Texas s assertion that this motion is procedurally improper under Federal Rules of Civil Procedure 26(c and 36 directly contradicts applicable law. Second, Texas s requests for admission seek improper conclusions of law and irrelevant information far beyond the proper scope of discovery under the Federal Rules and the Court s scheduling order in this case. As a result, answering these requests would impose an undue burden on the Attorney General, especially given the compressed discovery schedule and imminent trial date in this case. I. ARGUMENT A. The Attorney General s Motion for Protective Order is Procedurally Proper Texas s argument that this motion is procedurally improper is meritless. Without citing any case law, Texas claims that the Attorney General gets the rules of procedure backwards by seeking a protective order pursuant to Rule 26(c instead of answering Texas s requests under Rule 36. Response to Mot. for Protective Order, at 1, May 11, 2012, ECF No. 117 [hereinafter Texas Response ]. Rather, Texas argues the Attorney General must waste time and resources answering Texas s requests before the Attorney General may seek relief from answering them. Id. at 1-2. Texas s position defies logic and finds no support in either the Federal Rules of Civil Procedure or applicable case law. The text of Rule 36, which governs requests for admission, places no restriction on a party s ability to move for a protective order under Rule 26(c. See 6 Moore s Federal Practice [2] (3d ed & Supp ( Although Rule 26(c is 1 Pl s. First Req. for Admis. to the United States, Apr. 27, 2012, attached as ex. 1 [hereinafter Texas Req. for Admiss. ]. Of the fifty-one requests for admission served in this request, thirty-seven are improper. After a telephonic conference, the State agreed to withdraw seven of these requests, request numbers 43 through 51. 2

3 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 3 of 11 silent as to the time within which a [motion for] protective order must be made, the courts have imposed the requirement that the motion be timely or seasonable. A motion for protective order is timely if made prior to the date set for the producing the discovery. (footnotes omitted. Protective orders serve to shield a party from the burden of answering improper discovery requests, including unduly burdensome requests and requests that seek information outside the scope of the claims or defenses at issue in the case. Fed. R. Civ. P. 26(c (protective orders may forbid[] inquiry into certain matters, or limit[] the scope of disclosure or discovery to certain matters where a party seeks discovery outside the scope of the claims or defenses at issue in the case; id. (protective orders may protect a party... from annoyance,... oppression, or undue burden or expense ; see, e.g., Barnes v. District of Columbia, --- F. Supp. 2d ---, No. 06-cv-315, 2012 WL , at *5 (D.D.C (granting protective order for discovery in areas... outside the scope of the limited discovery ordered by the Court. Indeed, this Court has granted Rule 26(c protective orders that shield litigants from improper Rule 36 requests for admission. See, e.g., Gluck v. Ansett Australia Ltd., 204 F.R.D. 217, 219 (D.D.C (granting protective order against requests for admission; Branch v. FBI, No. 86-cv-1643, 1987 WL (D.D.C. Aug. 10, 1987 (granting protective order against requests for admission that sought information beyond limited scope of discovery. Texas cites no case law or other precedent that precludes the Attorney General from seeking relief under Rule 26(c instead of answering Texas s requests. 2 Accordingly, there is simply no basis for Texas s claim that the Attorney General s motion is procedurally improper. 2 As noted in the Attorney General s initial motion papers, this motion seeks relief only against request numbers 1 through 9, 11, 12, 14 through 19, 21, 24, 32, and 34 through 43, and Texas has withdrawn requests 45 through 51. The Attorney General will respond to the remaining requests for admission in accordance with Rule 36 and other applicable Federal Rules of Civil Procedure. 3

4 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 4 of 11 B. Texas s Requests for Admission Are Irrelevant to Texas s Statutory Claim Texas s statutory preclearance claim is the only claim currently before this Court and the only claim on which discovery may now be taken. Requests for admission that seek evidence concerning the constitutionality of SB 14 or the Attorney General s administration of Section 5 of the Voting Rights Act ( Section 5 are simply not relevant. Further, as the Court explicitly postponed discovery on Texas s constitutional challenge to Section 5 after Texas s statutory claim is resolved, requests for admission on that issue are not ripe at this time. Initial Scheduling Order 1, March 27, 2012, ECF No. 43; Telephone Status Conf. Tr , Apr. 30, Texas does not dispute that its requests for admission seek evidence concerning either the constitutionality of SB 14 or the Department of Justice s application of Section 5 to SB 14. Texas Response, at 5. However, Texas s opposition papers provide no theory for the relevance of these requests beyond an unsupported assertion that they will identify the facts and application of law to fact that form the basis of the United States claims about the purpose and effect of [SB 14]. 3 Id. This characterization of the Attorney General s approach to Texas s statutory claim is simply wrong, and finds no support in any of the Attorney General s filings in this case nor does Texas s brief cite any such instance. 3 Texas also asserts, without any citation, that the requests for which the Attorney General seeks a protective order seek admissions that relate to facts, the application of law to fact, and opinions regarding the purpose and effect of SB 14 for purposes of litigating Texas s statutory preclearance claim. Texas Response, at 5. The Attorney General respectfully submits that this is a significant mischaracterization of these requests. Rather, as explained in the Attorney General s initial motion papers, these wide-ranging requests seek admissions concerning the Attorney General s consideration of Texas s administrative preclearance submission for SB 14 and his decision to deny preclearance to SB 14; the Attorney General s determinations under Section 5 of voter photo identification laws enacted by states other than Texas; the general constitutionality of voter photo identification laws and other states voting laws; the Attorney General s approach to administrative preclearance submissions; the validity of other states voting laws under the Voting Rights Act and the U.S. Constitution; the Attorney General s interpretation of Section 5 as it applies to non-hispanic white voters and as it applies to state voting laws other than SB 14; statements purportedly made by the Attorney General to the media about the type of evidence reviewed during his administrative preclearance review; and the burdens of other states voter identification laws on voters in those states. See Stmt. of Points & Authorities in Supp. of Mot. for Protective Order, at 6-7, May 3, 2012, ECF No ; Texas Req. for Admiss. Nos. 1-9, 11, 12, 14-19, 21, 24, 32, and

5 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 5 of 11 This Court must assess Texas s statutory preclearance claim de novo. Cnty. Council of Sumter Cnty. v. United States, 555 F. Supp. 694, 706 (D.D.C ( we have no authority either to review, or to preview, decisions of the Attorney General under Section this Court s role under Section 5 of the Act is to examine the change de novo as an alternative to the Attorney General s decision regarding preclearance. This action does not constitute an appeal of the Attorney General s objection to SB 14 under Section 5, nor may the State obtain judicial review of the Attorney General s determination. Morris v. Gressette, 432 U.S. 491, 507 n.24 (1977 ( Congress intended to preclude all judicial review of the Attorney General s exercise of discretion or failure to act.. Rather, the sole question before the Court at this stage of the proceedings is whether Texas can establish that SB 14 comports with Section 5 of the Voting Rights Act in that it has neither the purpose nor the effect of denying or abridging the right to vote on account of race or color or membership in a language minority group. See First Am. Expedited Compl. for Decl. J. VI.A, Apr. 4, 2012, ECF No. 63-1; see also 42 U.S.C. 1973c(a. Given the limited scope of Texas s statutory claim, discovery related to the Attorney General s administrative review of SB 14, his determinations under Section 5, and the constitutionality of SB 14 is irrelevant. 4 Accordingly, as Texas concedes that its requests for admission seek exactly this type of evidence, a protective order shielding the Attorney General from these requests should issue. Texas Response, at 5, 4 Despite Texas s claim that it is entitled to discovery concerning the Attorney General s methods... used to determine the number of Texas voters who it claims will somehow allegedly be disenfranchised by SB 14, Texas s requests for admission on this issue seem to concern only the Attorney General s determination during his administrative review of SB 14 that over 600,000 registered voters do not have either a driver s license or personal identification card that complies with SB 14. See Texas Response, at 5; Texas Req. for Admiss. Nos ; Letter from Thomas E. Perez, Assistant Attorney General, Civil Rights Division, U.S. Dept. of Justice, to Keith Ingram, Director of Elections, Texas Secretary of State, 5, Mar. 12, 2012, attached as exhibit 2. As explained above, the administrative review process for SB 14 is irrelevant here. Regardless, Texas s asserted need for such discovery is negated by Texas s own acknowledgment in this litigation that a review of the State s databases revealed that 795,955 registered voters lack a Texas driver s license. Letter from Patrick Sweeten, Texas Assistant Attorney General, to Elizabeth Westfall, Trial Attorney, Civil Rights Division, U.S. Dept. of Justice, & Ezra Rosenberg, Dechert LLP, 1, May 9, 2012 ( 795,955 registered voters lack a Texas driver s license, attached as exhibit 3. 5

6 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 6 of 11 Moreover, to the extent that these enumerated requests for admission also seek discovery concerning the constitutionality of Section 5, these requests are beyond the boundaries of Rule 26(a at this time. This Court s initial scheduling order makes clear that discovery in this case is bifurcated, with discovery on Texas s statutory claim preceding discovery on Texas s constitutional claim. See Initial Scheduling Order 1 ( This case is bifurcated.... Therefore, the discovery and deadlines set forth in this Order refer exclusively to Count I of the State of Texas s Amended Complaint.. The current discovery period addresses Texas s statutory claim only. Id. As such, any discovery requests that seek evidence concerning the constitutionality of Section 5 or the Attorney General s enforcement of Section 5 against the State of Texas are simply not ripe now. By seeking admissions concerning matters well beyond the purpose of SB 14 and its effect on minority voters in Texas and by inquiring into the Attorney General s administrative decisionmaking, which is unreviewable in this action these requests are neither relevant nor calculated to lead to the discovery of admissible evidence. In light of this, a protective order is necessary. C. Texas s Requests for Admission Seek Improper Conclusions of Law Texas does not dispute that it may not use requests for admission to demand legal conclusions from the Attorney General. Rather, Texas claims that the requests for which the Attorney General seeks a protective order 5 merely require the application of law to fact, which Rule 36 permits where the request is designed to narrow or eliminate issues in an effort to streamline a case for trial. See Fed. R. Civ. P. 36(a advisory committee s note ( These are request numbers 4 through 9, 11, 12, 14 through 19 and 32. 6

7 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 7 of 11 (identifying a request for admission that employee acted within the scope of his employment as an example of appropriate Rule 36 application of law to fact. Texas s characterization of these requests does not comport with the plain language of the requests themselves. 6 For instance, request number 4 demands that the Attorney General [a]dmit that the Department of Justice believes that section 5 of the Voting Rights Act permits it to deny preclearance to a State s law even if the Department has precleared a materially similar law from another State. Request number 6 further demands that the Attorney General [a]dmit that SB 14 is constitutional under the Supreme Court s decision in Crawford v. Marion County, 553 U.S. 181 (2008. These requests require the Attorney General both to admit to certain interpretations of federal law and to the truth of Texas s legal conclusions concerning SB 14. As this Court has explicitly held, requests for admission may not be used for either of these purposes. In re Rail Freight Fuel Surcharge Antitrust Litig., --- F.R.D. ---, 2011 WL , at *10 (D.D.C. Nov. 17, 2011 ( Courts draw the line... when a request for admission demands that a party admit what a law or regulation means. ; Disability Rights Council of Greater Washington v. Washington Metro. Area Transit Auth., 234 F.R.D. 1, 3 (D.D.C (holding that one party cannot demand that the other party admit the truth of a legal conclusion through requests for admission. Moreover, Texas may not use requests for admission to obtain legal conclusions from the Attorney General merely by framing those conclusions in the context of factual issues in the case. Disability Rights Council of Greater Washington, 234 F.R.D. at 3 ( [I]t would be inappropriate for a party to demand that the opposing party ratify legal 6 As noted in the Attorney General s opening brief, these requests seek admissions including legal conclusions concerning the validity of Georgia s voter photo identification law; the Attorney General s interpretation of Section 5 of the Voting Rights Act; the Attorney General s views on the constitutionality of SB 14; the Attorney General s interpretation of Supreme Court case law; the Attorney General s legal views on the relationship between of the Voting Rights Act and the U.S. Constitution; the Attorney General s legal views on the impact of certain Supreme Court case law on the Voting Rights Act and the Attorney General s enforcement of Section 5; and the legal validity of voting-related state laws under the Voting Rights Act and the U.S. Constitution. See Stmt. of Points & Authorities in Supp. of Mot. for Protective Order, at

8 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 8 of 11 conclusions that the requesting party has simply attached to operative facts. ; see EEOC v. Bloomberg L.P., No. 07-cv-8383, 2010 WL , at *2 (S.D.N.Y. Aug. 4, 2010; Lakehead Pipe Line Co., Inc. v. Am. Home Assurance Co., 177 F.R.D. 454, 458 (D. Minn Given that these requests seek pure legal conclusions even when Texas seeks to couch them in terms of facts at issue in this case none of them are proper under Rule 36 and relevant case law. See, e.g., Disability Rights Council of Greater Washington, 234 F.R.D. at 3. D. Responding to Improper Discovery Requests Would Unduly Burden the Attorney General Finally, Texas s assertion that the Attorney General has not sufficiently established the undue burden presented by these improper discovery requests defies logic. The Attorney General acknowledges that a protective order may issue only upon a showing of good cause, Fed. R. Civ. P. 26(c, and that courts assessment of good cause must balance the harm to the moving party against the opposing party s significant interest in preparing for trial. Doe v. District of Columbia, 230 F.R.D. 47, 50 (2005 (internal quotation marks omitted; Alexander v. FBI, 186 F.R.D. 1, 3 (D.D.C. 1999; see Tequila Centinela v. Bacardi & Co., Ltd., 242 F.R.D. 1, 4 (D.D.C (good cause for a protective order exists where the burdensomeness of the discovery request outweighs the relevance of the information being sought. However, Texas seeks discovery that is unauthorized by the Federal Rules and inconsistent with the Court s Order. Texas has no right to this improper discovery, let alone a significant interest in such discovery to prepare for trial. At the same time, responding to these wide-ranging requests will impose needless burdens on the Attorney General that will waste valuable time as trial rapidly approaches. The balance of interests strongly favors a finding of good cause, and a protective order should issue. 8

9 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 9 of 11 II. CONCLUSION For the reasons given above and in the Attorney General s Statement of Points and Authorities in Support of Defendant Eric H. Holder s Motion for Protective Order (ECF No , the Attorney General s motion for a protective order should be granted. Date: May 18, 2012 RONALD C. MACHEN, JR. United States Attorney District of Columbia Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Risa Berkower T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO RISA BERKOWER DANIEL J. FREEMAN Attorneys Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: risa.berkower@usdoj.gov 9

10 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 10 of 11 CERTIFICATE OF SERVICE I hereby certify that on May 18, 2012, I served a true and correct copy of the foregoing via the Court s ECF system on the following counsel of record: Jonathan Franklin Mitchell Adam W. Aston Matthew Hamilton Frederick Patrick Kinney Sweeten Office of the Attorney General of Texas jonathan.mitchell@oag.state.tx.us adam.aston@oag.state.tx.us matthew.frederick@oag.state.tx.us Patrick.sweeten@texasattorneygeneral.gov Counsel for Plaintiff Debo P. Adegbile Leah C. Aden Elise C. Boddie Ryan Haygood Dale E. Ho Natasha Korgaonkar NAACP Legal Defense and Education Fund dadegbile@naacpldf.org laden@naacpldf.org eboddie@naacpldf.org rhaygood@naacpldf.org dho@naacpldf.org nkorgaonkar@naacpldf.org Michael Birney de Leeuw Douglas H. Flaum Adam M. Harris Fried, Frank, Harris, Shriver & Jacobson douglas.flaum@friedfrank.com adam.harris@friedfrank.com michael.deleeuw@friedfrank.com Counsel for Texas League of Young Voters Intervenors J. Gerald Hebert hebert@voterlaw.com Chad W. Dunn Brazil & Dunn chad@brazilanddunn.com Counsel for Kennie Intervenors Jon M. Greenbaum Mark A. Posner Lawyers Committee for Civil Rights mposner@lawyerscommittee.org jgreenbaum@lawyerscommittee.org Ezra David Rosenberg Michelle Hart Yeary Dechert LLP ezra.rosenberg@dechert.com michelle.yeary@dechert.com Robert Stephen Notzon Robert@notzonlaw.com Gary L. Bledsoe Law Office of Gary L. Bledsoe and Associates garybledsoe@sbcglobal.net Myrna Perez Wendy Robin Weiser Ian Arthur Vandewalker The Brennan Center for Justice myrna.perez@nyu.edu wendy.weiser@nyu.edu ian.vandewalker@nyu.edu Counsel for NAACP Intervenors

11 Case 1:12-cv RMC-DST-RLW Document 127 Filed 05/18/12 Page 11 of 11 John Tanner Nancy G. Abudu M. Laughlin McDonald Katie O Connor Arthur B. Spitzer American Civil Liberties Union nabudu@aclu.org lmcdonald@aclu.org koconnor@aclu.org artspitzer@gmail.com Nina Perales Amy Pederson Mexican American Legal Defense & Educational Fund, Inc. nperales@maldef.org apederson@maldef.org Counsel for Rodriguez Intervenors Counsel Texas Legislative Black Caucus Intervenors /s/ Risa Berkower RISA BERKOWER U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C risa.berkower@usdoj.gov

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