Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 1 of 11

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1 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs, and UNITED STATES of AMERICA, Plaintiff-Intervenor, Civil Action No. 5:11-cv-360 [Lead Case] STATE OF TEXAS, et al., Defendants. MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC), Plaintiff, STATE OF TEXAS, et al., Civil Action No. 5:11-cv-361 [Consolidated Case] Defendants. TEXAS LATINO REDISTRICTING TASK FORCE, et al., RICK PERRY, Plaintiffs, Defendant. Civil Action No. 5:11-cv-490 [Consolidated Case]

2 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 2 of 11 MARGARITA V. QUESADA, et al., RICK PERRY, et al., Plaintiffs, Defendants. Civil Action No. 5:11-cv-592 [Consolidated Case] JOHN T. MORRIS, Plaintiff, STATE OF TEXAS, et al., Civil Action No. 5:11-cv-615 [Consolidated Case] Defendants. EDDIE RODRIGUEZ, et al., RICK PERRY, et al., Plaintiffs, Defendants. Civil Action No. 5:11-cv-635 [Consolidated Case] EXPEDITED CONSIDERATION REQUESTED UNITED STATES MOTION FOR LEAVE TO DEPOSE GERARDO INTERIANO AND RYAN DOWNTON Pursuant to Rule 30(a)(2) of the Federal Rules of Civil Procedure, the United States of America respectfully requests leave of this Court to depose Gerardo Interiano and Ryan 2

3 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 3 of 11 Downton, who were previously deposed in this case in The United States has conferred with counsel for Defendants, and while Defendants agreed to make Interiano available for a deposition on May 14, and Downton available for a deposition on May 29, Defendants have arbitrarily limited the proposed depositions to 2.5 hours apiece. 1 Defendants have failed to articulate any reason for the time limit other than that they have been deposed before. Because of the plaintiffs and plaintiff-intervenors completely new claims, Texas s new defenses, new evidence now available to the parties, the scope of the witnesses knowledge, and the witnesses significant involvement in drafting the challenged 2011 redistricting plans, the plaintiffs and the plaintiff-intervenors are unwilling to agree to such a short time limit, leaving the United States no choice but to seek leave of Court. For these reasons, and for the reasons that follow, this Court should grant the United States motion. I. LEGAL STANDARD Federal Rule of Civil Procedure 30(a)(2)(A)(ii) requires a party to obtain leave of the court to take a deposition of a person who has already been deposed in the case. Leave must be granted to the extent consistent with Rule 26(b)(2). Fed. R. Ci P. 30(a)(2); Seymore Perm Maritime, Inc., No. G , 2007 WL , *1 (S.D. Tex 2007). Rule 26(b)(2) requires the court to limit discovery only if it determines that: (1) the discovery sought is unreasonably cumulative or duplicative; (2) the party seeking discovery has had ample opportunity to obtain 1 The need for expedited consideration of this motion arises because Defendants represent that Interiano is available for deposition only on May 14. Defendants advise that Interiano will not be available from May because of prior vacation plans. Discovery in this case closes on May 30. Therefore, the United States requests expedited consideration of the request to allow for deposition of Interiano on May 14 to proceed without Defendants artificial 2.5 hour limit (and for the deposition of Downton to proceed on May 29, likewise without the same time limit). 3

4 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 4 of 11 the information by discovery in the action; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Ci P. 26(b)(2)(C). Courts typically have reopened a deposition where new information comes to light triggering questions that the discovering party would not have thought to ask at the first deposition, see Briggs Phebus, No. 12-CV-2145, 2014 WL , at *3 (E.D. La. Mar. 19, 2014), where a production after the first deposition yields a document containing a statement by the witness, see Dixon Certainteed Corp., 164 F.R.D. 685, 692 (D. Kan.1996), and where the second deposition is based on new parties and new allegations. See Kleppinger Texas Dept. of Transp., 283 F.R.D. 330, 334 (S.D. Tex. 2012); see also, Morrison Stephenson, No. 2:06-CV-0283, 2008 WL , at *2 (S.D. Ohio January 10, 2008) (stating that new information comes to light when new parties are added to the case, new allegations are made in pleadings, or new documents are produced); Christy Pennsylvania Tpk. Comm n, 160 F.R.D. 51, 53 (E.D. Pa. 1995) (finding that newly-added defendants would be prejudiced if a second deposition was not permitted). II. ARGUMENT Interiano and Downton were last deposed in this action in Since that time, the District Court for the District of Columbia held a trial addressing whether the State s 2011 redistricting plans were entitled to preclearance under Section 5 of the Voting Rights Act. See Texas United States, No. 1:11-cv-1303 (D.D.C. Jan. 2012). As a result of the discovery in the D.C. case, new evidence not previously available to plaintiffs in this case was produced by the State. This evidence includes statements by the State s primary map drawers, including Interiano and Downton, regarding the 2011 redistricting plans. See generally Mem. Op. on Privilege Claims, Texas United States, No. 1:11-cv-1303 (D.D.C. Jan. 2, 2012) (ECF No. 128). Moreover, there has been a significant recent change to the Voting Rights Act, see Shelby 4

5 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 5 of 11 Cnty. Holder, 133 S. Ct (2013), resulting in the United States intervention in the instant action and in changes to the parties claims, defenses, and relief sought. As a result, this Court has scheduled a trial on all the remaining claims in these proceedings, including the parties request for Section 3(c) relief, see Scheduling Order (ECF No. 926), which necessitates additional discovery. Numerous witnesses for plaintiffs, plaintiff-intervenors, and defendants have been or will be re-deposed by agreement of the parties and without arbitrary limitations. The State seeks the 2.5 hour limit for only two witnesses Gerardo Interiano and Ryan Downton the two persons primarily responsible for drawing the maps in the 2011 redistricting. 1. An additional deposition would not be unreasonably cumulative or duplicative. Here, the United States is not seeking cumulative or duplicative discovery. Cumulative or duplicative discovery is that which is unnecessarily repetitious of evidence already introduced. See Consolidated Grain & Barge Co. Marcona Conveyor Corp. 716 F.2d 1077, 1983 (5th. Cir. 1993). The United States does not wish to rehash Interiano s or Downton s prior deposition testimony. Rather, the United States seeks to discover information that is not already in its possession and to question the witnesses about evidence that is not already a part of the record in this case. While it is to be expected that some questions from the United States in this supplemental deposition might touch on subjects about which these witnesses were questioned in their prior depositions, these supplemental depositions would not involve substantial repetition of questions previously asked and answered but instead would focus on subjects not previously inquired about, evidence not previously available, and other developments e.g., Defendants new defenses to the Section 3(c) relief sought since his last deposition in this case. 5

6 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 6 of The United States cannot obtain the information sought from other discovery. The testimony of Interiano and Downton is key to Texas defense in this case. Interiano was the primary map drawer for the State House plan, and Downton was a primary map drawer for disputed portions of the Congressional plan. Indeed, the State also understands the importance of their testimony to these proceedings. During the Texas United States litigation, counsel for Texas stated that [their] case rests largely on the credibility of one person. His name is Gerardo Interiano. He was the map drawer for the Texas House. And his credibility determines the discriminatory purpose case. Transcript of Record at 45, Texas United States, No. 1:11-cv-1303 (D.D.C. Jan. 17, 2012). The district court agreed, finding Interiano s testimony implausible and suggesting that his actions may have been motivated by a discriminatory purpose. Texas United States, 887 F. Supp. 2d 133, 178 (D.D.C. 2012), vacated on other grounds, 133 S. Ct (2013) (mem.). Because of their roles in the redistricting process, Interiano and Downton possess unique knowledge that cannot be obtained from any other witnesses. 3. The burden of this supplemental deposition does not outweigh the likely benefit. In assessing whether the burden of the discovery outweighs its benefit, a court must consider: (1) the needs of the case; (2) the amount in controversy; (3) the parties' resources; (4) the importance of the issues at stake in the litigation; and (5) the importance of the proposed discovery in resolving the issues. Briggs, 2014 WL , at *2. It goes without saying that the issues at stake in this litigation are of upmost importance. For more than a century, the political franchise of voting has been viewed as a fundamental political right, preservative of all rights. Yick Wo Hopkins, 118 U.S. 356, 370 (1886). Consequently, the United States can scarcely contemplate any significant burden to Interiano, Downton or the State during the 6

7 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 7 of 11 additional depositions, let alone a burden sufficient to outweigh the benefit derived from the testimony of these all-important witnesses. Moreover, the issues in this case have been litigated for more than two years, and the fair and accurate resolution of these important claims necessitates that the parties have the opportunity to obtain complete evidence. Deposition testimony by Interiano and Downton will help to provide that resolution with respect to the 2011 State House and Congressional redistricting plans. III. CONCLUSION For the reasons set forth above, this Court should grant the United States motion for leave to conduct additional depositions of Gerardo Interiano and Ryan Downton. Date: May 1, 2014 Respectfully submitted, ROBERT L. PITMAN United States Attorney Western District of Texas JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division /s/ Michelle A. McLeod T. CHRISTIAN HERREN, JR. TIMOTHY F. MELLETT BRYAN L. SELLS JAYE ALLISON SITTON DANIEL J. FREEMAN MICHELLE A. MCLEOD ERIN M. VELANDY Attorneys Voting Section, Civil Rights Division U.S. Department of Justice Room 7254 NWB 950 Pennsylvania Avenue, N.W. Washington, D.C (202)

8 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 8 of 11 CERTIFICATE OF SERVICE I hereby certify that on May 1, 2014, I served a true and correct copy of the foregoing via the Court s ECF system on the following counsel of record: David R. Richards Richards Rodriguez & Skeith, LLP davidr@rrsfirm.com Richard E. Grey III Gray & Becker, P.C. rick.gray@graybecker.com Counsel for Perez Plaintiffs and Plaintiff-Intervenors Pete Gallego and Filemon Vela Jr. Luis Roberto Vera, Jr. Law Offices of Luis Roberto Vera, Jr. & Associates lrvlaw@sbcglobal.net George Joseph Korbel Texas Rio Grande Legal Aid, Inc. gkorbel@trla.org Counsel for Plaintiff League of United Latin American Citizens John T. Morris johnmorris1939@hotmail.com Pro Se Plaintiff Nina Perales Marisa Bono Nicolas Espiritu Mexican American Legal Defense and Education Fund nperales@maldef.org mbono@maldef.org nespiritu@maldef.org Mark Anthony Sanchez Robert W. Wilson Gale, Wilson & Sanchez, PLLC masanchez@gws-law.com rwwilson@gws-law.com Counsel for Plaintiff Latino Redistricting Task Force Jose Garza Law Office of Jose Garza garzpalm@aol.com Mark W. Kiehne Ricardo G. Cedillo Davis, Cedillo & Mendoza mkiehne@lawdcm.com rcedillo@lawdcm.com Joaquin G. Avila Seattle University School of Law avilaj@seattleu.edu Cynthia B. Jones Jones Legal Group, LLC jones.cynthiab@gmail.com Counsel for Plaintiff Mexican American Legislative Caucus

9 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 9 of 11 Karen M. Kennard City of Austin Law Department karen.kennard@ci.austin.tx.us Max Renea Hicks Law Office of Max Renea Hicks rhicks@renea-hicks.com Manuel Escobar, Jr. Manuel G. Escobar Law Office escobarm1@aol.com Marc Erik Elias Abha Khanna Perkins Coie LLP akhanna@perkinscoie.com melias@perkinscoie.com S. Abraham Kuczaj, III Stephen E. McConnico Sam Johnson Scott Douglass & McConnico, LLP akuczaj@scottdoug.com smcconnico@scottdoug.com sjohnson@scottdoug.com David Escamilla Travis County Ass t Attorney david.escamilla@co.travis.tx.us Counsel for Rodriguez Plaintiffs Gerald Harris Goldstein Donald H. Flanary, III Goldstein, Goldstein and Hilley ggandh@aol.com donflanary@hotmail.com Paul M. Smith Michael B. DeSanctis Jessica Ring Amunson Jenner & Block LLP psmith@jenner.com mdesanctis@jenner.com jamunson@jenner.com J. Gerald Hebert Law Office of Joseph Gerald Hebert hebert@voterlaw.com Jesse Gaines Law Office of Jesse Gaines gainesjesse@ymail.com Counsel for Quesada Plaintiff-Intervenors Rolando L. Rios Law Offices of Rolando L. Rios rrios@rolandorioslaw.com Counsel for Plaintiff-Intervenor Henry Cuellar

10 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 10 of 11 Gary L. Bledsoe Law Office of Gary L. Bledsoe Victor L. Goode NAACP Robert Notzon Law Office of Robert Notzon Anita Sue Earls Allison Jean Riggs Southern Coalition for Social Justice Counsel for Plaintiff-Intervenor Texas State Conference of NAACP Braches Chad W. Dunn K. Scott Brazil Brazil & Dunn Hector De Leon Benjamin S. De Leon De Leon & Washburn, P.C. Eric Christopher Opiela Eric Opiela PLLC Christopher K. Gober Michael Hilgers Gober Hilgers PLLC James Edwin Trainor, III Beirne, Maynard & Parsons, LLP Joseph M. Nixon Beirne Maynard & Parsons LLP Counsel for Plaintiff-Intervenors Joe Barton et al. Counsel for Plaintiff-Intervenor Texas Democratic Party John K. Tanner John Tanner Law Office 3743 Military Rd. NW Washington, DC Counsel for Plaintiff-Intervenor Texas Legislative Black Caucus

11 Case 5:11-cv OLG-JES-XR Document 984 Filed 05/01/14 Page 11 of 11 David Mattax Patrick K. Sweeten Angela V. Colmenero Matthew Frederick Ana M. Jordan Jennifer Settle Jackson Adam Bitter William T. Deane Summer R. Lee Michael B. Neill Office of the Texas Attorney General texasattorneygeneral.gov texasattorneygeneral.gov Counsel for Defendants State of Texas and Rick Perry and Defendant-Intervenors David Dewhurst, Joe Strauss, and John Steen Donna Garcia Davidson Donna G. Daviddson Law Firm Frank M. Reilly Potts & Reilly, LLP Counsel for Defendant-Intervenors Steve Munisteri Kent M. Adams Lewis, Brisbois, Bisgaard, & Smith LLP Counsel to Defendant-Intervenor Sarah M. Davis Clarkson F. Brown Bexar County District Attorney s Office, 101 W Nueva, Suite 5049 San Antonio, TX (210) clarkb@bexar.org Counsel for Amicus Curiae Bexar County Ned Bennet Sandlin Texas Municipal League bennett@tml.org Counsel for Amicus Curiae Texas Municipal League Manuel A. Pelaez-Prada Pelaez Prada, PLLC mpp@lonestaradr.com Counsel for Amicus Curiae San Antonio Hispanic Chamber of Commerce /s/ Bryan L. Sells BRYAN L. SELLS Special Litigation Counsel Voting Section Civil Rights Division U.S. Department of Justice Room 7264 NWB 950 Pennsylvania Avenue, N.W. Washington, D.C Bryan.Sells@usdoj.gov