Case 1:12-cv CKK-BMK-JDB Document 172 Filed 08/15/12 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv CKK-BMK-JDB Document 172 Filed 08/15/12 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official capacity as Attorney General of the United States, Civil Action No. 1:12-CV-203-CKK-BMK-JDB (Three Judge Court) Defendants, and JAMES DUBOSE, et al., Defendant-Intervenors. UNITED STATES MOTION IN LIMINE OR, IN THE ALTERNATIVE, TO REOPEN DISCOVERY AND CONTINUE THE DATE OF TRIAL Defendants United States of America and Eric H. Holder, Jr. (collectively, the United States ) respectfully move in limine for an order excluding documents produced by South Carolina after the close of the fact discovery period and prohibiting the State from offering any and all testimony or argument based on these newly disclosed materials. In the alternative, should the Court deny the United States Motion In Limine to exclude the documents produced after the close of fact discovery, the United States respectfully moves to reopen the discovery period and continue the date of trial. As set forth in the accompanying memorandum, South Carolina s production of documents after the close of fact discovery violates the Federal Rules of Civil Procedure and the Court s scheduling order. Moreover, South Carolina cannot meet its burden of establishing that its failure to disclose these documents was substantially justified or harmless.

2 Case 1:12-cv CKK-BMK-JDB Document 172 Filed 08/15/12 Page 2 of 2 Date: August 15, 2012 Respectfully submitted, RONALD C. MACHEN, JR. United States Attorney District of Columbia THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Catherine Meza T. CHRISTIAN HERREN, JR. RICHARD DELLHEIM BRADLEY E. HEARD (D.C. Bar No ) JARED SLADE CATHERINE MEZA ANNA M. BALDWIN (D.C. Bar No ) ERIN M. VELANDY Attorneys, Voting Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202)

3 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official capacity as Attorney General of the United States, Civil Action No. 1:12-CV-203-CKK-BMK-JDB (Three Judge Court) Defendants, and JAMES DUBOSE, et al., Defendant-Intervenors. MEMORANDUM IN SUPPORT OF THE UNITED STATES MOTION IN LIMINE OR, IN THE ALTERNATIVE, TO REOPEN DISCOVERY AND CONTINUE THE TRIAL Defendants United States of America and Eric H. Holder, Jr. (collectively, the United States ) respectfully file this memorandum in support of their motion in limine or, in the alternative, to reopen discovery and continue the trial in this matter. Yesterday nearly a month after the close of fact discovery, less than two weeks before the start of trial, and only five days before pretrial briefs are due South Carolina produced nearly 300 pages of previously undisclosed documents that appear to touch on core issues involved in this litigation. This belated production violates the Federal Rules of Civil Procedure and the many scheduling and discovery orders entered in this case, and unfairly prejudices the United States ability to defend this case. Hence, in accord with Rule 37(c) of the Federal Rules of Civil Procedure, this Court should strike any factual material not produced by South Carolina on or before July 20, 2012 (the date upon which fact discovery closed). In the alternative, the

4 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 2 of 14 Court should reopen discovery to allow a fair opportunity for the United States to determine the accuracy and import of South Carolina s newly-produced information. The United States emphasizes at the outset that this is not a run-of mill discovery dispute. Instead, this is an apparent attempt by one party to change the operating facts of the case on the eve of trial. The United States would not seek relief either the exclusion of evidence or, alternatively, a delay in the trial if it did not believe that a substantial violation of the discovery process has occurred necessitating relief in the interest of basic fairness. Given the significance of the issues occasioned by the State s late document production, and the August 20, 2012 deadline for the parties pretrial briefs, the United States respectfully requests a status conference or expedited consideration of this motion in the hope that a resolution could be achieved by Friday, August 17, INTRODUCTION AND BACKGROUND Fact discovery in this case closed on July 20, Third Revised Scheduling and Procedures Order of July 3, 2012, ECF No. 121 at 2. As this Court is well aware, the Third Revised Scheduling and Procedures Order was necessitated by South Carolina s eleventh-hour discovery and disclosure of a voluminous amount of relevant legislative history material relating to Act R54 and its predecessor bill, including scores of hours of Senate committee and subcommittee hearings. The Court recognized that a reopening of discovery and a continuation of the previously-scheduled trial date was appropriate in light of (among other things) the need for additional discovery from both fact and expert witnesses and the necessity of adequately developing the record from which the Court will make its decision. Id. at 1. Continuing its pattern of last-minute production of relevant information, on August 14, days after the close of fact discovery, 12 days before the start of trial, five days before

5 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 3 of 14 the deadline for filing pretrial briefs, and just one day before the deadline for the filing of motions in limine South Carolina supplemented its production with 286 additional pages and an Excel spreadsheet file with no identifying information. Letter from H. Christopher Bartolomucci to Nancy Abudu, Garrard Beeney, Douglas Flaum, and Bradley Heard (August 14, 2012) (Ex. 1). That same day, as the parties worked to exchange information relating to their Joint Pretrial Submission (due today), South Carolina disclosed its intention to use three of the newly-produced documents as trial exhibits. Among the newly-produced materials is an undated document titled Reasonable Impediment/Religious Objection Procedures, which appears to set forth newly-created and previously unsubmitted guidance from the State Election Commission on the interpretation and application of the reasonable impediment and religious objection provisions of section 5 of Act R54, including procedures for poll managers and county boards of canvassers (SC_ SC_ ) (Ex. 2). 1 This document contains no indication of who authored the document, whether it is in its final form, whether it has been officially considered and approved by the State Election Commission ( SEC ), whether it has been duly promulgated in accordance with the South Carolina Administrative Procedure Act and approved by the General Assembly, or whether, when, and how it will be disseminated. Nor is there any indication that it has been, or will be, resubmitted for Section 5 review. Significantly, the document directly contradicts sworn testimony from the SEC s executive director that the SEC intended to rely solely on an unofficial opinion issued by the South Carolina Attorney General s office and did not plan to develop or issue any further guidance regarding the application of the reasonable impediment provision. (Andino Dep., Vol. 1, 111:22-25; 112:1-22, June 6, 2012). 1 Copies of the newly produced documents, including Exhibits 2, 3, 4, 5, 6, and 7 will be filed under seal in accordance with the Protective Order in this case (ECF. No. 51).

6 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 4 of 14 Also included in the documents proposed as trial exhibits is an undated and revised version of the notification postcard to be sent to voters that the State Election Commission identifies as not possessing the requisite identification to vote under Act R54 (SC_ SC_ ) (Ex. 3). The postcard contains significant revisions to the version of the postcard that was submitted to this Court on April 30, 2012, along with the SEC s implementation procedures, which the State represented to this Court and the Attorney General as final and thus ripe for review under Section 5. See ECF No at 2. Also among the newly-produced documents South Carolina lists as a proposed trial exhibit is a series of communications between the SEC and the State Budget Division regarding the SEC s request to carry forward to the fiscal year funding that was appropriated to the SEC for the implementation of Act R54 in the fiscal year (SC_ SC_ ) (Ex. 4). Of particular note is that the communications between the SEC and the State Budget Division regarding the SEC s request appear to have commenced on the same date that the United States conducted the Rule 30(b)(6) deposition of the State Budget and Control Board, through Roy Lester Boles, Jr., director of the State Budget Division. When asked whether the SEC had made such a request, Mr. Boles testified that it had not. (Boles Dep. 93: 3-12, July 20, 2012). Mr. Boles testified precisely as to the procedure that the SEC might undertake in the future to obtain such carry-forward authority, but disclaimed any idea that he had reached a conclusion as to merits of any such request. Id. at 65:24 to 78:25. The remaining documents consist of a copy of a slide presentation on implementing the photo ID requirement of Act R54 that appears to have already been given at an August 6, 2012, meeting of the South Carolina Association of Registration and Elections (SC_ SC_ ) (Ex. 5); a posting of information that appears to be on the SEC s intranet website

7 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 5 of 14 providing an update on photo ID and requesting that when counties are determining the availability of poll managers, prospective poll managers be asked whether they are notaries (SC_ SC_ ) (Ex. 6); a file containing a list with the names of poll managers that was attached to the posting on the SEC s intranet website (SC_ ); and copies of correspondence sent by Marci Andino, executive director of the SEC, to several organizations requesting assistance with recruitment of notaries who are willing to serve as volunteer poll workers for the 2012 general election (SC_ SC_ ) (Ex. 7). 2 ARGUMENT AND CITATION OF AUTHORITY South Carolina s late production of relevant documents violates this Court s Scheduling Order and the Federal Rules of Civil Procedure. Including such late-produced materials prejudices the United States ability to defend this case. Moreover, South Carolina cannot meet its burden of demonstrating that its failure to disclose any of the information reflected in the newly-produced documents was substantially justified or harmless. Motions in limine are designed to narrow the evidentiary issues at trial. Williams v. Johnson, 747 F. Supp. 2d 10, 14 (D.D.C. 2010). When ruling on such motions, this Court possesses broad discretion, in light of the Court s familiarity with the details of the case and its greater experience in evidentiary matters. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). 2 Marci Andino testified that she was not aware that any counties planned to have notaries present at each polling place if Act R54 were to be implemented. She noted that she had recently heard that state law required an affidavit to be notarized but that she did not recall that the issue had been raised regarding the affidavits related to Act R54. (Andino Dep., Vol. 1, at 156: 7-25 to 157: 1-21, June 6, 2012).

8 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 6 of 14 I. South Carolina s failure to disclose evidence it intends to use at trial during the discovery phase of this case directly violates the Federal Rules of Civil Procedure and the Court s Scheduling Order. Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that a party that fails to disclose information required by Rule 26(a) or 26(e)(1) is not permitted to use as evidence at trial unless the failure was substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1); see Flynn v. Dick Corp., 481 F.3d 824 n.10 (D.C. Cir. 2007). Under Rule 37, the district court has broad discretion to impose sanctions for discovery violations. Bonds v. District of Columbia, 93 F.3d 801, 807 (D.C. Cir. 1996). Federal Rules of Civil Procedure 26(b), 33(b), and 34(b) require parties to produce relevant documents and other materials in response to an opposing party s discovery requests. Rule 26(e) requires that a party s initial disclosures - as well as all answers to interrogatories and requests for production of documents - must be supplemented in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Fed. R. Civ. P. 26(e). If a party fails to properly disclose information or identify a witness as required by Rule 26(a) or (e), which it will seek to use to support its claims or defenses, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1); see generally Unique Industries, Inc. v Alberta Ltd., 764 F. Supp. 2d 191 (D.D.C. 2011) ( the Federal Rules authorize the court to prohibit the plaintiff from relying on the evidence produced after the close of discovery as a sanction for its failure to comply with the court's scheduling order.); Tex. Instruments Inc. v. Powerchip Semiconductor Corp., 2007 WL , at *12 (S.D.N.Y. May 24, 2007)

9 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 7 of 14 (precluding the defendant from relying on documents produced after the close of discovery pursuant as a sanction under Rule 16(f); Bonds, 93 F.3d at 807 ( Rule 37 authorizes the district court, in response to a failure to serve answers or objections to interrogatories, to make such orders in regard to the failure as are just, including prohibiting that party from introducing designated matters into evidence. ). Federal Rule of Civil Procedure 16(f) provides that [o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney... fails to obey a scheduling or other pretrial order. Fed. R. Civ. P. 16(f)(1)(C). Indeed, during a June 1, 2012, hearing, this Court, emphasized this standard and explicitly reminded that parties that: If you say, in responding to an interrogatory or document request, this is what exists, this is all there is. And you fight and say: We re not producing anything else, there isn t anything else, or we don t have to do it. They can t come in later at trial and have witnesses testify to something different, or produce document that they failed to produce. They won t be permitted to do that. They are like everyone else, you, the intervenors and South Carolina, are limited by your responses to the discovery. And if you say: That s it. You can t develop anything else through witnesses or additional documents. (Hrg. Trans., 22:21-25; 23: 1-9, June 1, 2012) (Ex. 8). Notably, at the same hearing and in its related briefing, South Carolina argued that the search for relevant documents should be cut-off at January 31, Counsel for South Carolina argued that it chose January 31, 2012 as the cut-off date for searches of responsive documents and materials because [January 31 is] right before the filing of the complaint in this case. And it s also right after the administrative decision to deny preclearance. So it should have captured all of the relevant information about the law, its passage, its consideration, consideration of prior laws. (Hrg. Trans., 55:3-8, June 1, 2012) (Ex. 8).

10 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 8 of 14 After a modification of the schedule necessitated by the State s failure to identify and produce numerous video and audio recordings of highly relevant legislative proceedings, the Court s Third Revised Scheduling and Procedures Order scheduled the close of fact discovery on July 20, South Carolina was required to produce all documents and materials responsive to the United States requests for production by the Court ordered close of discovery, and was also required to supplement or correct its disclosures in a timely manner. Although South Carolina has supplemented its productions during the revised discovery period and participated in numerous depositions of witnesses who were in a position to authenticate or provide information about the newly-produced materials or the information underlying those materials, at no time during the discovery period or during any of the second-round depositions did the State seek to notify the parties about the existence of the newly-produced documents, nor did the State seek leave to reopen discovery to permit it to disclose the new evidence. By developing additional information directly contradicting the sworn testimony of state witnesses testimony relied upon by the United States, the Defendant-intervenors, and upon which expert opinions have been in part founded -- and waiting until nearly a month after the close of discovery to produce that information, South Carolina violated the Court s Scheduling Order and the Federal Rules of Procedure and prejudiced the defending parties. Moreover, it has deprived the defending parties of any opportunity to determine the extent to which the documents at issue accurately and completely reflect actions the State intends to take now or at some point in the future. The late-produced information should be stricken.

11 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 9 of 14 II. Because South Carolina s failure to disclose the newly-produced documents during the discovery period is not substantially justified and will prejudice the United States, the documents must be excluded. This Court has clearly defined the penalty for failing to timely disclose information or supplement a discovery response, finding that the exclusion of the undisclosed evidence or testimony is automatic unless the party that failed to disclose can prove that its failure was substantially justified or harmless. See Norden v. Samper, 544 F.Supp.2d 43, 49 (D.D.C. 2008) (stating that Rule 37(c)(1) is a self-executing sanction, and that preclusion is required and mandatory absent some unusual or extenuating circumstances -- that is, a substantial justification. ) (quoting Elion v. Jackson, No , 2006 WL at *1 (D.D.C. Sept. 8, 2006)); see also DCFS USA, LLC v. Dist. of Columbia, 803 F. Supp. 2d 29 (D.D.C. 2011) (striking evidence from record where information properly sought but not produced was suddenly unveiled in opposition for a motion for summary judgment); Walls v. Paulson, 250 F.R.D. 48, 53 (D.D.C. 2008); Abston v. Fitness Co., 216 F.R.D. 143, 147 (D.D.C. 2003) (excluding testimony and evidence due to failure to timely and adequately respond to interrogatory requests, except as to what was adequately and timely disclosed). The burden to prove that its violation was either substantially justified or harmless is on the party facing the sanction of exclusion under Rule 37. Elion v. Jackson, 544 F. Supp. 2d 1, 5-6 (D.D.C. 2008). To demonstrate that its failure to disclose potential witnesses or exhibits was substantially justified, a party must make a showing of unusual or extenuating circumstances. Norden, 544 F. Supp. 2d at 50. Here, South Carolina has offered no explanation as to why they failed to disclose the newly produced documents, or specifically, the information underlying the documents, before the close of discovery, or at an earlier date. As noted above, at least two of the documents are undated, and South Carolina did not offer details

12 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 10 of 14 about when they first possessed the newly discovered documents or when they first learned of their existence. Other specific documents, including the documents recording the communications between the SEC and the State Budget Division, are dated beginning July 20, 2012, and suggest that some of the documents were available at least three weeks before they were turned over. See Coles v. Perry, 217 F.R.D. 1, at *6 (D.D.C. June 27, 2003) ( To say that disclosure after the discovery deadline is harmless ignores that a central purpose of setting a discovery deadline is to move the case expeditiously forward the interest in having meaningful deadlines should require the exclusion of the belated disclosure when the tardy party provides no reason whatsoever for the lateness of its response. ); see Bray & Gillespie Management, LLC v. Lexington Ins. Co., 2010 WL (M.D. Fla. 2010) (holding that Rule 37 is designed to protect a court's institutional values by not only preventing unfair prejudice but also insuring the integrity of the discovery process ) (citations omitted). If South Carolina is permitted, after the close of discovery, to submit evidence which it had sufficient time and multiple opportunities to disclose but failed to do so the harm and prejudice to the United States would be substantial. First, South Carolina s disclosure of the newly-produced documents less than two weeks before trial undermines the United States ability to conduct discovery related to these substantive changes in the implementation and administrative procedures of Act R54. Introduction of the newly-produced documents would require the United States to re-depose administrators of the State Election Commission, such as Marci Andino and Chris Whitmire, as well as a representative of the State Budget Division. Next, the content and substance of the newly-produced documents may substantially alter the facts adduced during the discovery period regarding the procedural and administrative contours of Act R54. In effect, the information contained in several of the newly-produced

13 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 11 of 14 documents directly contradicts the facts provided regarding the administration, funding, and implementation of Act R54 during depositions and throughout the discovery period. Admission of the newly-produced documents would potentially render several of the facts on which the parties expert witnesses relied inaccurate, and in turn, require revision of the reports and analyses contained therein. Moreover, given that the defending parties intend to rely upon the facts as they existed at the close of discovery, and their experts analyses of those facts, in the trial briefs due to the Court on Monday, August, 20, 2012, admission of the newly-produced documents compromises those briefs by undermining the factual foundation upon which their legal arguments rest. Lastly, South Carolina failure to timely identify and disclose the newly-produced documents (or the information underlying the documents) and the specific documents it might rely on at trial unfairly prejudices the United States and impedes its effective preparation for trial in precisely the manner that the Federal Rules of Civil Procedure forbid. The purpose of the mandatory disclosure rules is to ensure that the opposing party has a full opportunity to examine and contest its adversary witnesses evidence. See Elion, 544 F. Supp. 2d at 6; Coles v. Perry, 2002 WL , at *2 (D.D.C. June 7, 2002) (The purpose of Rule 26 is to forc[e] a party to disclose its potential witness[es] either initially or as discovery proceeds so that the opposing party can best determine how to use its limited discovery resources. ). The State s eleventh-hour attempt to change the operative facts at the heart of this case is akin to a Section 5 jurisdiction seeking judicial preclearance for a redistricting plan waiting until the close of discovery and the eve of trial to disclose that it has changed its districting lines for which it is seeking preclearance. South Carolina should not benefit from its similar violation of the Court s Scheduling Order and the Federal rules.

14 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 12 of 14 Because South Carolina cannot demonstrate that its failure to disclose the newlyproduced documents (or the information underlying the documents) was substantially justified or harmless, the court should impose the exclusion called for by Rule 37. Fed. R. Civ. P. 37(c)(1). III. Alternatively, if documents and testimony relating to information produced after the July 20 close of discovery is permitted, the United States requests that fact discovery should be reopened and the trial date continued. To the extent this Court denies this motion for exclusion of the newly produced documents, the United States respectfully seeks alternative relief and requests that the Court reopen the discovery period and continue the date of the trial. South Carolina s disclosure of the newly-produced documents only 12 days before trial will unfairly prejudice the United States if it is still bound by the now past fact discovery deadline and trial dates set forth in the Court s Third Revised Scheduling and Procedures Order. If the newly-produced documents are not excluded, the United States would necessarily be required to verify the information contained in the documents and martial opposition evidence in open court. See United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (noting that the purpose of pretrial procedures and discovery are to make trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent ). As a practical matter, the United States and the Defendant-intervenors will need to squander limited courtroom time to conduct what will essentially be discovery depositions in open court. That is manifestly unfair, and could possibly lead to a chaotic presentation of the evidence for the Court. Reopening the discovery period and granting a continuance of the trial date would allow the United States to engage in the required discovery and cure any potential prejudice to its case. Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002) (noting

15 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 13 of 14 that, in response to breach of a discovery obligation, district courts have broad discretion in fashioning an appropriate sanction, including delaying the start of trial at the expense of the party violating the court s discovery order). CONCLUSION The United States has devoted significant resources to preparing for trial in this matter, as have the other parties and the Court. And although the United States shares the Court s interest and parties desire to resolve this matter as expeditiously as possible, no party should be allowed to gain strategic advantage from the extremely compressed schedule in this litigation by belatedly producing new factual information. The Court should either disallow reliance on the newly-produced information at trial, or reopen discovery and continue the trial, to provide the parties a fair opportunity to examine this new information for accuracy and to address it if accurate. The United States is reluctant to make this request given the tremendous investment of resources that the Court and all parties have dedicated to this matter, but respectfully urges that the failure to impose some sanction for South Carolina s latest discovery violation whether by disallowing reliance on the new information at trial, or by reopening discovery would profoundly prejudice the United States ability to prepare for trial, and would hinder the Court s ability to make an accurate determination based on all the evidence.

16 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 14 of 14 Date: August 15, 2012 Respectfully submitted, RONALD C. MACHEN, JR. United States Attorney District of Columbia THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Catherine Meza T. CHRISTIAN HERREN, JR. RICHARD DELLHEIM BRADLEY E. HEARD (D.C. Bar No ) JARED SLADE CATHERINE MEZA ANNA M. BALDWIN (D.C. Bar No ) ERIN M. VELANDY Attorneys, Voting Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202)

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18 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 2 of 22 August 14, 2012 VIA ELECTRONIC MAIL Bradley E. Heard, Esq. U.S. Department of Justice Civil Rights Division, Voting Section 1800 G Street NW, 7th Floor Washington DC Bradley.Heard@usdoj.gov VIA ELECTRONIC MAIL Nancy Abudu, Esq. American Civil Liberties Union Foundation 230 Peachtree Street, N.W., Suite 1440 Atlanta, Georgia nabudu@aclu.org VIA ELECTRONIC MAIL Garrard R. Beeney, Esq. Sullivan & Cromwell LLP 125 Broad Street New York, New York beeneyg@sullcrom.com VIA ELECTRONIC MAIL Douglas H. Flaum, Esq. Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, New York douglas.flaum@friedfrank.com Dear Counsel: Re: South Carolina v. United States, No. 12-CV-203 (CKK-BMK-JDB) Pursuant to the parties agreement regarding affirmatively relevant documents, the State of South Carolina herewith produces via electronic mail documents bearing the Bates numbers SC_ SC_ Very truly yours, Encl. H. Christopher Bartolomucci 1919 M Street, N.W. Suite 470 Washington D.C Telephone Facsimile

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39 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official capacity as Attorney General of the United States, Civil Action No. 1:12-CV-203-CKK-BMK-JDB (Three Judge Court) Defendants, and JAMES DUBOSE, et al., Defendant-Intervenors. PROPOSED ORDER Upon consideration of the United States Motion in Limine or, in the Alternative, to Reopen Discovery and Continue the Date of Trial (ECF No. ), the State of South Carolina s response thereto (ECF No. ), and United States reply in further support (ECF No. ), it is hereby ORDERED that: The United States Motion in Limine is GRANTED. The United States Alternative Motion to Reopen Discovery and Continue the Date of Trial is GRANTED.

40 Case 1:12-cv CKK-BMK-JDB Document Filed 08/15/12 Page 2 of SO ORDERED this day of August, BRETT M. KAVANAUGH UNITED STATES CIRCUIT JUDGE COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE JOHN D. BATES UNITED STATES DISTRICT JUDGE