THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case 1:12-cv RMC-DST-RLW Document 130 Filed 05/21/12 Page 1 of 8 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff vs. ERIC H. HOLDER, JR., in His Official Capacity as Attorney General of the United States, Case No. 1:12-CV (RMC, DST, RLW) Three-Judge Court Defendant. MOTION TO COMPEL Plaintiff The State of Texas respectfully moves the Court to compel Defendant Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, to produce documents and answer interrogatories under Federal Rule of Civil Procedure 37, and in support thereof would show as follows: 1. The United States has failed to answer Plaintiff s First Set of Requests for Production No. 3, 4, 6, and 7; Plaintiff s First Set of Interrogatories No. 10; and Plaintiff s Second Set of Interrogatories No. 1 and These document requests and interrogatories seek (1) information on Texas residents who possess United States Passports, military identification, or citizenship certificates; (2) information on federal agency determinations of disability status that would allow certain registered voters to vote without showing a photo ID; and (3) information regarding the citizenship status of individuals 1

2 Case 1:12-cv RMC-DST-RLW Document 130 Filed 05/21/12 Page 2 of 8 registered to vote in Texas. 3. This information is within the control of the Defendant because the real party in interest is the United States; moreover, the Department of Justice has the legal right to obtain the requested information from the relevant federal agencies. 4. Texas has exhausted the informal discovery dispute procedures outlined in the Initial Scheduling Order (Doc. 43) and supplemented by the Court during subsequent telephone conferences. 5. During this process, the Department of Justice has made clear that it will not obtain the requested information from the relevant federal agencies; rather, the United States insists upon formal discovery process, including subpoenas to each agency as though they were nonparties. 6. The United States has reserved the right to resist any request for discovery from federal agencies. 7. The process demanded by the United States will further delay production of this information, most of which is already more than a month overdue. 8. Texas therefore moves for an order compelling the Defendant to respond to Plaintiff s First Set of Requests for Production No. 3, 4, 6, and 7; Plaintiff s First Set of Interrogatories No. 10; and Plaintiff s Second Set of Interrogatories No. 1 and 2. 2

3 Case 1:12-cv RMC-DST-RLW Document 130 Filed 05/21/12 Page 3 of 8 Dated: May 21, 2012 Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General JONATHAN F. MITCHELL Solicitor General /s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General ADAM W. ASTON Principal Deputy Solicitor General ARTHUR C. D ANDREA Assistant Solicitor General MATTHEW H. FREDERICK Assistant Attorney General 209 West 14th Street P.O. Box Austin, Texas (512) COUNSEL FOR THE STATE OF TEXAS CERTIFICATE OF CONFERENCE I hereby certify that Texas and the United States conferred about this motion to compel by telephone on May 21, The United States opposes the motion. /s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General 3

4 Case 1:12-cv RMC-DST-RLW Document 130 Filed 05/21/12 Page 4 of 8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document is being served by CM/ECF and/or electronic mail on May 21, 2012 on the following: Elizabeth Stewart Westfall Jennifer Lynn Maranzano Daniel J. Freeman Bruce I. Gear Meredith E.B. Bell-Platts U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC (202) /Fax: (202) elizabeth.westfall@usdoj.gov daniel.freeman@usdoj.gov bruce.gear@usdoj.gov jennifer.maranzano@usdoj.gov Meredith.Bell-Platts@usdoj.gov Counsel for the United States Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX (281) chad@brazilanddunn.com J. Gerald Hebert Attorney at Law 191 Somerville Street, #405 Alexandria, VA Telephone: hebert@voterlaw.com Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon 4

5 Case 1:12-cv RMC-DST-RLW Document 130 Filed 05/21/12 Page 5 of 8 Ezra D. Rosenberg Michelle Hart Yeary DECHERT LLP 902 Carnegie Center, Suite 500 Princeton, NJ (609) /Fax: (609) ezra.rosenberg@dechert.com michelle.yeary@dechert.com Jon M. Greenbaum Mark A. Posner Robert A. Kengle LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW, Suite 400 Washington, DC (202) jgreenbaum@lawyerscommittee.org mposner@lawyerscommittee.org bkengle@lawyerscommittee.org Myrna Perez Ian Arthur Vandewalker Wendy Robin Weiser THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY (646) /Fax: (212) myrna.perez@nyu.edu ian.vandewalker@nyu.edu wendy.weiser@nyu.edu Robert Stephen Notzon 1507 Nueces Street Austin, TX (512) Fax: (512) robert@notzonlaw.com Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, Maryland (410) vgoode@naacpnet.org 5

6 Case 1:12-cv RMC-DST-RLW Document 130 Filed 05/21/12 Page 6 of 8 Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas (210) (phone) garzpalm@aol.com Gary L Bledsoe Law Office of Gary L. Bledsoe and Associates 316 West 12th Street, Suite 307 Austin, Texas (512) garybledsoe@sbcglobal.net Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives Douglas H. Flaum Michael B. de Leeuw Adam Harris FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, New York (212) douglas.flaum@friedfrank.com michael.deleeuw@friedfrank.com adam.harris@friedfrank.com Ryan Haygood Natasha M. Korgaonkar Leah C. Aden Dale E. Ho Debo P. Adegbile Elise C. Boddie NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York (212) (212) rhaygood@naacpldf.org nkorgaonkar@naacpldf.org laden@naacpldf.org dadegbile@naacpldf.org dho@naacpldf.org eboddie@naacpldf.org 6

7 Case 1:12-cv RMC-DST-RLW Document 130 Filed 05/21/12 Page 7 of 8 Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams John Kent Tanner 3743 Military Road, NW Washington, DC (202) john.k.tanner@gmail.com Nancy Abudu Katie O Connor Laughlin McDonald AMERICAN CIVIL LIBERTIES UNION FOUNDATION INC 230 Peachtree Street NW, Suite 1440 Atlanta, GA (404) nabudu@aclu.org koconnor@aclu.org lmcdonald@aclu.org Arthur B. Spitzer American Civil Liberties Union of the Nation s Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C (202) artspitzer@gmail.com Lisa Graybill Rebecca Robertson American Civil Liberties Union Foundation of Texas 1500 McGowan Street Houston, Texas (713) lgraybill@aclutx.org rrobertson@aclutx.org 7

8 Case 1:12-cv RMC-DST-RLW Document 130 Filed 05/21/12 Page 8 of 8 Penda Hair Kumiki Gibson Advancement Project 1220 L Street, NW, Suite 850 Washington, DC (202) phair@advancementproject.org kgibson@advancementproject.org Counsel for Justice Seekers, League of Women Voters of Texas, Texas Legislature Black Caucus, Donald Wright, Peter Johnson, Ronald Wright, Southwest Workers Union and La Union Del Pueblo Entero Nina Perales Amy Pedersen MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX (210) nperales@maldef.org apedersen@maldef.org Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez /s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General 8

9 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 1 of 11 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff vs. ERIC H. HOLDER, JR., in His Official Capacity as Attorney General of the United States, Case No. 1:12-CV (RMC, DST, RLW) Three-Judge Court Defendant. MEMORANDUM IN SUPPORT OF MOTION TO COMPEL In the accompanying Motion to Compel, Texas seeks an order from the Court compelling the Department of Justice to provide the State with information from federal agencies in the same manner that the State has provided the Department of Justice with information maintained by state agencies. On April 13, 2012, Texas served the United States with discovery requests seeking information on federally issued identification authorized by SB 14 and disability determinations by federal agencies that may exempt voters from SB 14 s photo identification requirement. On May 8, 2012, Texas served the United States with additional discovery requests for citizenship information for individuals on the State s voting rolls. The United States objected to these requests on the ground that Attorney General Eric H. Holder, Jr. is the sole defendant, and he does not have possession, custody, or control of responsive information maintained by federal agencies.

10 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 2 of 11 The United States objections are not valid, and its failure to respond to the State s discovery requests is not justified. Texas sued Attorney General Holder in his official capacity as Attorney General of the United States. The real party in interest is the United States, not its agent Mr. Holder. Moreover, regardless of the identity of the Defendant, the Department of Justice has the legal authority to obtain the requested information from federal agencies. BACKGROUND AND FACTS Texas served the United States with its first set of interrogatories and its first set of requests for production on April 13, In Requests for Production No. 3, 4, 6, and 7, Texas requested the following documents: [3]... all documents, electronically stored information, or databases that identify Texas residents who possess a United States military identification card; [4]... all documents, electronically stored information, or databases that identify Texas residents who possess a United States passport or passport card; [6]... all documents, electronically stored information, or databases that identify Texas residents who have been determined by the United States Social Security Administration to have a disability; [7]... all documents, electronically stored information, or databases that identify Texas residents who have been determined by the United States Department of Veterans Affairs to have a disability rating of at least 50 percent.... State of Texas First Set of Requests for Production to Defendant Eric H. Holder, Jr. (Exh. 1) at 4 5. In its first set of interrogatories, Texas requested the following information in Interrogatory No. 10:

11 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 3 of 11 For all registered Texas voters who you contend lack a driver s license, a personal identification card, or a concealed handgun license, please identify each individual who has a United States passport or passport card, a United States military identification card, or a United States citizenship certificate with a photograph. State of Texas First Set of Interrogatories to Defendant Eric H. Holder, Jr. (Exh. 2) at 4. On May 9, 2012, Texas served a second set of interrogatories, which asked the United States to [1] Identify every person in the State s voter registration database whose social security number is associated with a different name in Social Security Administration records [and] [2] Identify every person in the State s voter registration database who is not a United States citizen. State of Texas Second Set of Interrogatories to the United States of America (Exh. 3) at 6. The United States served its response to the State s request for production and first set of interrogatories on April 20. The United States objected to Requests for Production No. 3, 4, 6, and 7 on the ground that they sought information not within [the Attorney General s] possession, custody, or control. See Defendant Eric H. Holder s Responses and Objections to the State of Texas First Set of Requests for Production of Documents (Exh. 4) at It objected to Requests 3, 6, and 7 on the additional ground that they sought information more readily available to Texas than to the Attorney General. See id. Subject to these objections, the United States responded that as to each request, the Attorney General has no responsive, nonprivileged documents in his possession, custody, or control. Id.

12 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 4 of 11 The United States objected to Interrogatory No. 10 on the grounds that it requests information outside of the custody or control of the Attorney General and is premature, as discovery has only recently commenced. See Defendant Eric H. Holder s Responses and Objections to the State of Texas First Set of Interrogatories (Exh. 5) at 15. Subject to those objections, the United States responded that (1) Texas bears the burden of proof; (2) Facts produced through discovery and subject to complex analysis may provide additional information responsive to this interrogatory ; and (3) the Attorney General is not in possession of facts responsive to Interrogatory No. 10. Id. The United States lodged similar objections to the State s second set of interrogatories. See Defendant Eric H. Holder s Responses and Objections to the State of Texas Second Set of Interrogatories (Exh. 6) at 3 6. Texas responded to the United States objections to its request for production and first set of interrogatories in a letter dated April 23, See Letter from Matthew Frederick to Bruce Gear (April 23, 2012) (Exh. 7). The parties met and conferred by telephone on the same day. On April 24, 2012, Texas requested that the Department of Justice reconsider its refusal to coordinate with federal agencies to provide the documents and information sought in Requests for Production No. 3, 4, 6, and 7 and Interrogatory No. 10. See Letter from Matthew Frederick to Elizabeth Westfall (April 24, 2012) (Exh. 8). The United States responded, in a letter dated April 24, that it would not withdraw its objection but that it would inquire into the availability of the requested information. See Letter from Elizabeth Westfall to Matthew Frederick (April 24, 2012) (Exh. 9). On April 26, in response to

13 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 5 of 11 an inquiry, the United States advised Texas that it was still consulting with the relevant agencies and would get back to the State shortly. See from Elizabeth Westfall to Matthew Frederick (April 26, 2012) (Exh. 10). During a telephone conference on April 30, 2012, the United States effectively admitted that it had made no effort to investigate the State s April 13, 2012 discovery requests. At that time, it had not determined whether the requested information could be produced or, if so, what technical, legal, and temporal limitations would exist. See, e.g., Transcript of Telephonic Hearing (April 30, 2012) at 22:11 19 ( THE COURT: You don t know do you, Ms. Westfall, as to the nature of the records maintained by HHS or... Social Security.... MS. WESTFALL: I do not know, Your Honor, the nature of the records. ). The United States insisted that production of the requested information could not begin until it secured a court order. See id. at 15:21 22 ( At a minimum, it would take four weeks from the time that it received a court order. ). Unlike Texas, however, the United States has made no effort to secure a court order that would allow discovery to proceed. On May 4, the United States advised the Court that it was prepared to provide further information on a conference call the following week. Upon receipt of this to the Court, Texas requested an update before the following week. See from Matthew Frederick to Elizabeth Westfall (May 4, 2012) (Exh. 11). The United States did not provide an update to Texas. Instead, it filed a Notice (Doc. 106) with the Court on May 7.

14 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 6 of 11 On May 9, the Court entered a minute order regarding database production that instructed the United States as follows: The United States shall, as soon as practicable and by no later than May 11, 2012, canvas the relevant federal agencies to determine what protective order(s) may be necessary to allow release of information requested by Texas and provide same to the Court and parties; coordinate consultations between agency IT personnel and Texas IT personnel; and inform Texas to whom to send Rule 45 subpoenas. Additionally, by no later than May 15, 2012, the United States shall file a notice indicating how long it will take each relevant agency to produce the requested information from the federal databases according to the number of persons identified by Texas for whom it seeks information. Texas and the United States participated in conference calls on May 10 and May 11 to discuss the possibility of obtaining the requested information from federal agencies. The United States filed a Notice (Doc. 120) on May 11 documenting these discussions. On May 15, consistent with the Court s instruction, the United States filed its fourth Notice (Doc. 121) regarding the State s efforts to obtain information maintained by federal agencies. In this notice, the United States made clear that service of subpoenas on the relevant agencies and a protective order two conditions on which the United States had insisted before any federal agency would even begin to provide information to Texas would not be sufficient. On the contrary, the United States cautioned that upon service of subpoenas, each agency would make an independent determination regarding

15 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 7 of 11 (1) the nature and relevance of information sought in the litigation from which the request arises; (2) the cost and overall burden on the agency to produce information responsive to the subpoena; and (3) how best to formulate the agency s response, which may involve raising appropriate objections. Notice (Doc. 121) at 3; see also id. at 1 ( Nothing in this notice is intended to waive any arguments or objections the non-party agencies might otherwise assert in response to Rule 45 subpoenas or any other attempt to compel the disclosure of agency records. ). The May 15 Notice outlined the United States additional concerns, including the substantial burden on the relevant agencies and the cost of obtaining the requested information, which the agencies would attempt to recover from Texas. See id. at 3 7. On May 18, the Court held a status conference to discuss the status of the State s efforts to obtain information from federal agencies. In the status conference, consistent with the four notices it has filed on the subject, the United States represented through the Department of Justice and multiple agencies that responses to Texas s discovery requests could not begin until service of a subpoena, a court order, and approval of the request by each agency. The parties have now followed the informal discovery procedures set forth in the Court s Initial Scheduling Order and in subsequent orders to the parties. That process has shown that the United States will not comply with the State s discovery requests in a timely manner absent an order compelling it to do so. Texas therefore moves for an order compelling the Defendant to respond to the State s discovery requests.

16 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 8 of 11 LEGAL STANDARD Under the Federal Rules, a party may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. Fed. R. Civ. P. 26(b)(1). A party seeking discovery may move for an order compelling an answer, designation, production, or inspection... if... a party fails to answer an interrogatory submitted under Rule 33; or... a party fails to respond that inspection will be permitted or fails to permit inspection as requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B). The party moving to compel production of documents bears the initial burden of explaining how the requested information is relevant. Jewish War Veterans v. Gates, 506 F. Supp. 2d 30, 42 (D.D.C. 2007) (citing Bethea v. Comcast, 218 F.R.D. 328, 329 (D.D.C. 2003)). Once that showing is made, however, the burden shifts to the objecting party to explain why discovery should not be permitted. Id.; see also Alexander v. FBI, 192 F.R.D. 50, 53 (D.D.C.2000). The United States has not contested the relevance of the information and documents requested by the State of Texas; therefore, the burden rests with the United States to show why it should not be required to answer the discovery requests. ARGUMENT AND AUTHORITIES The question raised by the State s motion to compel is whether the requested documents and information are within the possession of the Defendant or, if they are not, whether the Defendant has the legal right to obtain them. The Defendant has possession of the requested information because the United States is the real

17 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 9 of 11 party in interest, and it has possession of data and documents maintained by federal executive agencies. Even if the nominal Defendant, Attorney General Holder, were the sole defendant, the requested information is within the control of the Defendant because the Department of Justice has the legal right to obtain that information from federal agencies. Defendant s objections should be overruled, and an order compelling responses to the State s discovery requests should issue. Texas sued Attorney General Eric Holder in his official capacity as an agent of the United States. As a result, the real party in interest is the United States, not Mr. Holder. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165 (1985) ( Officialcapacity suits... generally represent only another way of pleading an action against an entity of which an officer is an agent. ) (quoting Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690, n.55 (1978)). The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter. Hawaii v. Gordon, 373 U.S. 57, 58 (1963) (per curiam) (citing Dugan v. Rank, 372 U.S. 609 (1963); Malone v. Bowdoin, 369 U.S. 643 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949)). The Department of Justice has consistently recognized that the United States is a party to this litigation by referring to the United States as the defendant in this case. See, e.g., Letter from Jennifer L. Maranzano to Jonathan F. Mitchell (March 19, 2012) ( We write to provide you with a preliminary list of members of the Texas legislature whom the United States will seek to depose.... ); United States and

18 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 10 of 11 Defendant-Intervenors Status Report (Doc. 29); United States Motion for a Protective Order (Doc. 44); United States Statement in Support of its Request to Depose and Seek Documents from State Legislators and Staff (Doc. 69); Transcript of Telephonic Hearing (March 27, 2012) at 4:6 7 ( This is Elizabeth Westfall for the United States. ); Transcript of Telephonic Hearing (April 3, 2012) at 33:16 17 ( Congress has made the United States the statutory defendants in this case. ). When Texas began to seek discovery of materials maintained by federal agencies, however, the DOJ changed course and insisted that Attorney General Holder is the only defendant. The fact remains that the real party in interest is the United States, not its agent Mr. Holder. Because the United States is the real party in interest, agencies within the executive branch of the federal government are within the control of the defendant. Even if the Department of Justice were correct that the State s preclearance action is not in fact a suit against the United States, the information requested by Texas is in the Defendant s control because the Department of Justice has the legal authority to obtain documents and information from federal executive agencies. See, e.g., United States v. American Telephone & Telegraph Co., 461 F.Supp. 1314, (D.D.C. 1978); cf. 28 U.S.C. 516 ( Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General. ).

19 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 11 of 11 CONCLUSION For the reasons stated above, the Motion to Compel should be granted. Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General JONATHAN F. MITCHELL Solicitor General /s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General ADAM W. ASTON Principal Deputy Solicitor General ARTHUR C. D ANDREA Assistant Solicitor General MATTHEW H. FREDERICK Assistant Attorney General 209 West 14th Street P.O. Box Austin, Texas (512) COUNSEL FOR THE STATE OF TEXAS

20 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS Plaintiff, Case No. 1:12-cv RMC-DST-RLW vs. ERIC H. HOLDER, JR., in his official Capacity as Attorney General of the United States Defendant. ORDER The State of Texas has moved to compel the United States to produce documents and data and to respond to interrogatories related to the possession of federally issued photo identification by Texas registered voters, the disability status of certain Texas residents who may qualify for an exception to the photo identification requirements of SB 14, and the citizenship status of individuals on the Texas voting rolls. The United States has objected to each of these requests on multiple grounds, its primary objection being that the requested documents and information are not within the Attorney General s possession, custody, or control. Having considered the Motion and the United States objections, the Court is of the opinion that the objections lack merit, and the Motion should be GRANTED. 1

21 Case 1:12-cv RMC-DST-RLW Document Filed 05/21/12 Page 2 of 2 It is therefore ORDERED that the State of Texas s Motion to Compel is GRANTED; and it is FURTHER ORDERED that the United States shall produce the requested documents and respond to the State s interrogatories no later than five days after the date of this Order. Date: United States Circuit Judge United States District Judge United States District Judge 2

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