Case 1:12-cv RMC-DST-RLW Document 217 Filed 06/20/12 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv RMC-DST-RLW Document 217 Filed 06/20/12 Page 1 of 5 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 DEFENDANT ERIC H. HOLDER S MOTION IN LIMINE TO EXCLUDE DOCUMENTS RELATED TO FRAUD AND TESTIMONY BY MAJOR FORREST MITCHELL

2 Case 1:12-cv RMC-DST-RLW Document 217 Filed 06/20/12 Page 2 of 5 Defendant Eric H. Holder ( Attorney General moves for an order prohibiting the State of Texas from moving into evidence any and all testimony, or argument related to issues of voter fraud derived from three spreadsheets assembled by Major Forrest Mitchell ( Mitchell spreadsheets, documents related to voter fraud, and Major Forrest Mitchell s potential testimony about either the Mitchell spreadsheets or any voter fraud documentation not produced in discovery. Date: June 20, 2012 RONALD C. MACHEN, JR. United States Attorney District of Columbia Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Spencer R. Fisher 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: spencer.fisher@usdoj.gov 2

3 Case 1:12-cv RMC-DST-RLW Document 217 Filed 06/20/12 Page 3 of 5 CERTIFICATE OF CONFERRAL I hereby certify that on June 20, 2012, counsel for the Attorney General attempted unsuccessfully to contact counsel for the State of Texas by at 10:35 p.m. EST and by telephone at 11:25 p.m. EST to confer concerning this Motion. /s/ Spencer R. Fisher SPENCER R. FISHER Trial Attorney, Voting Section U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C spencer.fisher@usdoj.gov

4 Case 1:12-cv RMC-DST-RLW Document 217 Filed 06/20/12 Page 4 of 5 CERTIFICATE OF SERVICE I hereby certify that on June 20, 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

5 Case 1:12-cv RMC-DST-RLW Document 217 Filed 06/20/12 Page 5 of 5 John Tanner john.k.tanner@gmail.com 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/ Spencer R. Fisher SPENCER R. FISHER Trial Attorney, Voting Section U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C spencer.fisher@usdoj.gov

6 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 1 of 15 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 STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ERIC H. HOLDER S MOTION IN LIMINE TO EXCLUDE DOCUMENTS RELATED TO FRAUD AND TESTIMONY BY MAJOR FORREST MITCHELL

7 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 2 of 15 Defendant Eric H. Holder, Jr., in his official capacity as Attorney General of the United States ( the Attorney General, respectfully moves this Court for an in limine Order precluding the Plaintiff State of Texas ( the State from offering any and all testimony, or argument related to issues of voter fraud derived from three spreadsheets (TX_ assembled by Major Forrest Mitchell ( Mitchell spreadsheets (Ex. 1., documents in support of these spreadsheets, and Major Mitchell s testimony about either the Mitchell spreadsheets or any voter fraud documentation not produced in discovery. The State should not be permitted to introduce the Mitchell spreadsheets or testimony related to them because the State did not produce voluminous documents relevant to the issues raised by these spreadsheets in response to the Attorney General s document requests and pursuant to both the notice and amended notice of Major Mitchell s deposition. (United States First Set of Reqs. for Prod. of Docs., March 21, 2012 (Ex. 2.; (Notice of Dep. of Major Forrest Mitchell, May 26, 2012 (Ex. 3.; (Amended Notice of Dep. of Major Forrest Mitchell, June 12, 2012 (Ex. 4.. These spreadsheets and related testimony should therefore be excluded pursuant to Fed. R. Civ. P. 37(c(1 as a discovery sanction. In addition, these spreadsheets and related testimony are inadmissible because they constitute improper summaries pursuant to Federal Rule of Evidence 1006, which requires all material supporting a summary to be made available at a reasonable time and place. Because the State refused to do so here, this evidence should be excluded. ARGUMENT The Attorney General anticipates that the State may seek to move into evidence a compilation of voter fraud data in the form of the Mitchell spreadsheets, documents in support of these spreadsheets, and testimony from Major Mitchell at trial. As discussed below, the Court 2

8 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 3 of 15 should issue an order to exclude the Mitchell spreadsheets, the scope of any potential testimony regarding these spreadsheets by Major Mitchell, and the information contained therein, because the Plaintiff failed to timely and fully disclose underlying documents related to these matters during discovery. See e.g., Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir ( a motion in limine is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.. Absent these underlying documents, the Defendant is unable to examine and contest this evidence and ascertain its veracity. A. While in the discovery phase of this case, Texas failed to produce the vast majority of documents underlying the Mitchell spreadsheets. Texas has produced very little of an admittedly large volume of documentation related to the issues of voter fraud set forth in the Mitchell spreadsheets. As an initial matter, this court ordered that Texas produce non-privileged documents responsive to the Attorney General s document production requests by May 11, 2012, including any relevant privilege logs. (Order, May 7, 2011, ECF No Major Mitchell, however, was not identified by the State as a potential witness with discoverable information until May 21, 2012, the established deadline for discovery motions. 1 (Pls. Supplemental Initial Disclosures, May 21, 2012; see Fed. R. Civ. P. 26(a(1(A(i. Soon after Major Mitchell was identified by the State, the Attorney General provided notice of Major Mitchell s deposition obligating Major Mitchell to produce all non-privileged documentation responsive to the Attorney General s requests by June 2, (Ex. 3.. These 1 The State s original objections to the Attorney General s requested production of documents related to voter fraud well pre-dated its identification of Major Mitchell as an individual likely to have discoverable information as well as its later identification of documents potentially responsive to the Attorney General s requests. Compare (Pls. Objections and Resps. To Defs. First Set of Reqs. for Produc., March 30, 2012 (Ex. 5. with Letter from John W. McKenzie, III to Bruce Gear (June 7, 2012 (Ex. 6. 3

9 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 4 of 15 requests included, inter alia, all documents and communications... related to any investigations of Voter Fraud that occurred in the State of Texas from January 1, 2002, to the present. (Id. at 6.; see Fed. R. Civ. P. 30(b(2, 34(a(1(A (notice to a party deponent may be accompanied, by a request for the production of documents and tangible things at the deposition. Texas objected to the Attorney General s requests and served the Attorney General with the first version of Texas s objections and responses to Major Mitchell s Notice of Deposition on June 6, (Objections and Responses to Exhibit A of Major Mitchell s Notice of Deposition, June, 6, 2012 (Ex. 7. In this document, Texas referenced its production of three spreadsheets compiled by Major Mitchell summarizing voter fraud investigations. (Id. at 2 citing TX_ Meanwhile, Texas s substantive responses objecting to the Attorney General s requests consisted of boilerplate language referencing, inter alia, relevance concerns, issues related to privilege, and issues concerning the possession, custody and control of the requested documents. (Id. Yet, the State failed to note specifically which objections applied to which of the Attorney General s requests. (Id. In a letter sent a day later on June 7, the State also noted, for the first time in writing that the requests call for the production of approximately 300 case files containing over 10,000 pages of materials. (Ex. 6 at 2. And that [m]any of the case files are stored in an offsite warehouse and are not readily accessible to Mr. Mitchell. Id. Despite this fact, the State noted that it would produce to the Department of Justice convictions and indictments for Voter Fraud from the time period identified in Exhibit A to Mr. Mitchell s Notice by 6:00 p.m. on June 8, Id. The State again also included boilerplate objections to the materials requested by the 4

10 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 5 of 15 Attorney General stating, inter alia, that the requests were overbroad, unduly burdensome, and of marginal relevance. Id. By consent of the parties, Major Mitchell s deposition was subsequently rescheduled from Friday, June 8 to Friday, June 15 to allow for time to review the State s promised production. In a letter consenting to this change, the Attorney General noted that the State had requested that we identify what documents we think we need in response to the spreadsheet the State has provided and that this request was unacceptable. Letter from Bruce Gear to Patrick W. Sweeten (June 7, 2012 (Ex. 8. At this point, rather than producing the documents the Attorney General requested, the State had effectively placed the burden on the Attorney General to identify specific documents for production about which he had no knowledge. In a subsequent objection served on the Attorney General only two days before Major Mitchell s rescheduled deposition, Texas again included boilerplate language objecting broadly to the Attorney General s requests for production. (Objections and Responses to Exhibit A of Major Mitchell s Amended Notice of Deposition, June, 13, 2012 (Ex. 9. Additionally, Texas referenced its production of materials on voter fraud investigations from June 9th, including the spreadsheets, (TX_ and TX_ , documents responsive to public information act requests (TX_ , and public testimony available on the internet regarding the issue of voter fraud. (Id. at 2. Again, however, the State failed to produce all of the documents responsive to the Attorney General s requests and restated its broad, unsupported objections to these requests. On June 14, on the eve of Major Mitchell s deposition, the State produced a small number of documents to the Attorney General concerning Major Mitchell (TX_ , But, 5

11 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 6 of 15 given the State s tardy production, counsel for the Attorney General did not have a reasonable opportunity to review these documents prior to the scheduled deposition. Thus, in total (excluding gaps in the bates number ranges provided, the State produced around 400 documents, out of the 10,000 it referenced in its June 7 letter, to the Attorney General regarding voter fraud investigations. These productions occurred only at the very end of the discovery phase of this case and were wholly insufficient. As a result of the State s dilatory conduct in identifying and producing the requested documents, the Attorney General was provided untimely information upon which to evaluate and thoroughly question the nature and scope of the entries in Major Mitchell s three spreadsheets. Major Mitchell, in fact, gave some indication of the contents of these missing documents in his deposition testimony on June 15: Q. (Mr. Bruce Gear Now, when you talk about 10,000 pages of irrelevant documents, can you give me an idea of what you re actually referring to? A. (Major Mitchell Case files. Q. And those are case files that regard the spreadsheets that you ve provided to the defendant, Eric Holder, in this case? A. Yes, sir. Q. And those case files include conviction records, if any? A. Correct. Q. They include testimony, if any? A. I do not believe the case files would include testimony. Q. Okay. Why don t we do it this way. Generally what would the case files include? A. The case file would generally contain a referral document from an outside agency. Q. Okay. A. Such as the Secretary of State s office, a local district attorney s office or county attorney s office. Q. Which would initiate the action in the attorney general s office? A. Correct. Q. Okay. What else would it include? A. It also could include affidavits from complainants -- Q. Okay. 6

12 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 7 of 15 A. Who forwarded that information to whatever referral agency. It may contain documents such as voter registration records or mail-in ballot applications or poll place combination forms. Q. And those documents would have come from the? A. Referring agency. Q. Referring agency. Okay. Anything else that would be in the files, generally? A. In the entire case file would be investigative work product, such as interviews of witnesses. Q. Notes? A. Notes. Suspect interviews, audio recordings, personal identifying information of witnesses or suspects contacted, additional election records obtained. And each one will generally contain an open case form and a closed case form, along with any sorts of court pleadings such as, indictments or information or the final disposition of the case. (Mitchell Dep. 22:3-23:23, June 15, (emphasis added Q. So let s talk about that structure a little bit. Your unit, the SIU, conducts the investigations. How does it then, shift to the prosecution stage? A. At the completion of our investigation, we would prepare an investigative packet with statements, reports, supporting documentation, it could be recorded interviews, those kinds of things. And that would be presented to the local district attorney, county attorney or to the criminal prosecutions division. Q. And did you produce these election investigation packets to your attorney, to your attorney in this case? A. In the scope of this? Q. Yes. A. No. (Mitchell Dep. 66:10-66:23, June 15, (emphasis added In addition, given the extreme delay in production of these documents and the previous expiration of the timeline for discovery motions in this matter, the Attorney General was prevented, as a procedural matter, from filing a motion to compel production of these documents. (Mitchell Dep. 15:8-15:17, June 15, 2012 ( Q. Okay. And what did you do in response to the discovery? A. I reviewed my personal , my work and documents I had electronically saved on our network. Q. Did you produce those documents to your attorney? A. Yes, Sir. Q. And when did you produce those? A. It s been an ongoing process. I started producing them last week.. 7

13 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 8 of 15 If a party fails to properly disclose documents under the Federal Rules, which it will seek to use to support its claims or defenses, the party will not be permitted to use that information 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 Bonds v. Dist. of Columbia, 93 F.3d 801, 807 (D.C. Cir ( 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. (internal quotations omitted. In applying this rule, federal courts rarely find special justification or harmlessness for evidence not produced to the opposing party during regular discovery proceedings. See, e.g., Design Strategy, Inc. v. Davis, 469 F.3d 284, (2d Cir (affirming exclusion of expert testimony calculating damage theories never mentioned during discovery; Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, (9th Cir (limiting expert testimony to contents of initial report and disallowing testimony on rebuttal report submitted 28 days prior to trial. In this Court, 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 (Collyer, J. (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 (striking evidence from record where information properly sought but not produced was suddenly unveiled in opposition for a motion for summary judgment; U.S. ex rel. Purcell v. MWI Corp., 824 F. Supp. 2d 12, 19 8

14 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 9 of 15 (D.D.C (striking declarations from two witnesses because late disclosure was not substantially justified or harmless; failure to anticipate the need for witnesses does not substantially justify untimely submission of witness declarations ( If the court accepted these eleventh-hour declarations, the government would effectively be deprived of the opportunity to depose the defendant's new witnesses. ; Abston v. Fitness Co., 216 F.R.D. 143, 147 (D.D.C (excluding testimony and evidence due to failure to timely and adequately respond to interrogatory requests, except as to what was adequately and timely disclosed. B. The State s blanket refusals of the Attorney General s requests were unsupported by any particularized objections rendering them entirely ineffective and unjustified. The scope of discovery in civil actions is broad, allowing for discovery regarding any non-privileged matter that is relevant to a claim or defense. See Fed. R. Civ. P. 26(b(1. Further, [t]he party objecting to... discovery bears the burden of show[ing] why discovery should not be permitted. Alexander v. F.B.I., 194 F.R.D. 299, 302 (D.D.C In addition this Court has noted that it only entertains an unduly burdensome objection when the responding party demonstrates how [discovery of] the document is overly broad, burdensome, or oppressive, by submitting affidavits or offering evidence which reveals the nature of the burden. Tequila Centinela Tequila Centinela, S.A. de C.V. v. Bacardi & Co., Ltd., 242 F.R.D. 1, 10 (D.D.C.2007 (quoting U.S. ex rel. Fisher v. Network Software Associates, 217 F.R.D. 240, 246 (D.D.C In objecting to the Attorney s General s requests, Texas failed to explain the specific ways in which these requests were overly broad or unduly burdensome. Thus, the State s blanket objections were entirely ineffective as they did not particularize why potentially 9

15 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 10 of 15 responsive documents were being withheld. See DL v. District of Columbia, 251 F.R.D. 38, 46 (D.D.C The State also failed to explain specifically why Major Mitchell does not have access to or a legal right to demand documents which serve as the foundation for the three spreadsheets the State concedes he maintains in the ordinary course of business. 2 Non-possession of documents or things for inspection is not a determining factor of whether such documentation is produced control of such documents is the determining factor. See George Hantscho Co. v. Miehle-Goss- Dexter, Inc., 33 F.R.D. 332, (S.D.N.Y Further, control has been defined as a legal right to obtain the documents upon demand from a third party. See e.g., Cochran Consulting, Inc. v. Uwatec USA, Inc., 102 F.3d 1224, (Fed. Cir The State failed to explain why Major Mitchell had no legal right to the documents which serve to inform his compilation of the spreadsheets upon which he relied. With regard to the State s arguments that the Attorney General s requests called for the production of documents that were subject to legislative privilege, deliberative process privilege, contain attorney-client communications, or are otherwise privileged, the State produced no privilege log with regard to these documents. Under Federal Rule of Civil Procedure 26(b(5: When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must... describe the nature of the documents, communications, or tangible things not produced or disclosed- and do so in a manner that... will enable other parties to assess the claim. 2 Federal Rule of Evidence 803 permits the introduction in civil actions of business and public records as exceptions to hearsay unless the sources of information or other circumstances indicate lack of trustworthiness. In such cases, a district court retains significant discretion as to whether such material ought to be admitted. Halloway v. Milwaukee Cnty, 180 F.3d 820, 827 n.9 (7th Cir. 1999; see also Fed. R. Evid. 803 advisory committee s note (8(c (suggesting criteria to consider on the issue of admissibility, but noting that no exhaustive list is possible. 10

16 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 11 of 15 The State failed to satisfy its obligations under Rule 26(b(5. Thus, the State s objections on the basis of privilege should be rejected outright. See DL v. District of Columbia, 251 F.R.D. at 45; see also U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 235 F.R.D. 521, 523 (D.D.C C. The Mitchell spreadsheets and related testimony are inadmissible because they improperly summarize voluminous documents. Rule 1006 of the Federal Rules of Evidence provides that [t]he proponent may use a summary... to prove the content of voluminous writings... that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination... by other parties at a reasonable time and place. Fed. R. Evid The purpose of this rule is to ensure that the admission of summary evidence is dependant upon the presence of safeguards that both reduce the risk that the evidence may be inaccurate and mitigate the damage if it is inaccurate. 31 Wright & Miller, Fed. Practice & Procedure 8045 (2012. The Mitchell spreadsheets purport to summarize the contents of 10,000 pages of case files detailing state prosecutions over a 10-year time period. As described above, despite the Attorney General s repeated and specific requests, Texas has steadfastly refused to permit the Attorney General to examine the documents that were used to create these summaries. Because the Attorney General has been prevented from examining the records that allegedly support the information contained in the Mitchell spreadsheets and has therefore been deprived of the opportunity to test its accuracy the spreadsheets and related testimony are inadmissible and should be excluded. See United States v. Kim, 595 F.2d 755, 764 (D.C. Cir ( When the underlying documents are not subject to examination by the opposing parties, the summary should not be admitted into evidence. ; see also 31 Wright & Miller, Fed. Practice & Procedure 11

17 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 12 of & n.5 ( If the proponent of summary evidence fails to make the source material reasonably available, the court should not admit the summary evidence. (citing cases. D. Major Mitchell s testimony should be restricted to matters within his own knowledge. The Defendant respectfully requests that the State be prevented from offering any and all testimony, evidence, or argument related to issues of voter fraud derived from the spreadsheets assembled by Major Mitchell as such testimony, evidence, or argument would be reliant on information that was not timely or sufficiently disclosed to the Attorney General for review despite repeated requests for production. At an absolute minimum, this Court should cabin any potential testimony from Major Mitchell to matters solely within his own personal knowledge excluding all of the spreadsheet information. See Fed. R. Evid. 602, 701(a; see also United States v. Becerril-Lopez, 541 F.3d 881, 888 (9th Cir (finding an abuse of discretion in the admission of testimony that amounted to a government agent merely reading another s report.. Major Mitchell has not been offered as an expert in this matter by the Plaintiff and, for the reasons given above, even if he were offered as such, his testimony would be severely limited by the Plaintiff s failure to properly disclose relevant information. See, e.g., Olson v. Mont. Rail Link, Inc., 227 F.R.D. 550, 553 (D. Mont (where data underlying defendant s expert s report was untimely disclosed the court would prohibit the expert from relying in any way upon data or conclusions specifically not included and spelled out in his original expert report; any opinion held by the expert that was not properly disclosed would be stricken as would be any opinion or evidence based on undisclosed data or testing ; BTO Logging, Inc. v. Deere & Co., 174 F.R.D. 690, (D. Or (plaintiff s disposal of evidence had precluded defendant s expert from examining that evidence, thus any testimony by [plaintiff s] experts... which [was] based on their examinations of the disposed evidence would be excluded. 12

18 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 13 of 15 CONCLUSION For the reasons given above, the Attorney General respectfully requests that this Court grant his Motion for an in limine Order to exclude the Mitchell spreadsheets, any documents related to these spreadsheets and Major Mitchell s testimony about the Mitchell spreadsheets, and any voter fraud documentation not produced in discovery. Date: June 20, 2012 RONALD C. MACHEN, JR. United States Attorney District of Columbia Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Spencer R. Fisher T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH S. WESTFALL BRUCE I. GEAR SPENCER R. FISHER 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: spencer.fisher@usdoj.gov 13

19 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 14 of 15 CERTIFICATE OF SERVICE I hereby certify that on June 20, 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

20 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 15 of 15 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/ Spencer R. Fisher SPENCER R. FISHER Trial Attorney, Voting Section U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C spencer.fisher@usdoj.gov

21 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 1 of 2 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., Intervenors, Defendant- VICTORIA RODRIGUEZ, et al., Defendant-Intervenors. CASE NO. 1:12-CV (RMC-DST-RLW Three-Judge Court PROPOSED ORDER Upon consideration of Defendant Eric H. Holder s Motion in Limine to Exclude Documents Related to Fraud and Testimony by Major Forrest Mitchell, Statement of Points and

22 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 2 of 2 Authorities in Support thereof, Plaintiff State of Texas s opposition memorandum, and Defendant Holder s reply memorandum. It is hereby ORDERED that Defendant Attorney General Eric H. Holder s Motion in Limine to Exclude Documents Related to Fraud and Testimony by Major Forrest Mitchell is GRANTED; and it is FURTHER ORDERED that Major Mitchell s testimony is precluded in so far as it concerns spreadsheets and any voter fraud documentation not timely produced in discovery. This day of, ROSEMARY COLLYER United States District Judge DAVID S. TATEL United States Circuit Judge ROBERT L. WILKINS United States District Judge

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44 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 2 of 10 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. CASE NO. 1:12-CV (RMC-DST-RLW Three-Judge Court UNITED STATES FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendant Eric J. Holder, Jr. requests that Plaintiff State of Texas ( Plaintiff or State identify and produce the documents and items requested below for inspection and copying and deliver copies to counsel for United States by March 27, This request is continuing in nature as provided by Rule 26(e of the Federal Rules of Civil Procedure. INSTRUCTIONS AND DEFINITIONS 1. The State, Texas, or Plaintiff means Plaintiff State of Texas and any of its agents, representatives, employees, and any person acting or purporting to act on its behalf.

45 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 3 of S.B. 14 means 2011 Texas General Laws Chapter 123, which amends the Texas Transportation Code relating to the issuance of election identification certificates, and which amends the Texas Election Code relating to procedures for implementing the photographic identification requirements for the State of Texas. 3. Legislator means an elected member of the Texas House of Representatives or the Texas State Senate, including employees, staff, interns, representatives, designees, agents, or any persons acting or purporting to act on behalf of the Texas House of Representatives or the Texas State Senate, any committee thereof, or any elected member of the Texas House of Representatives or the Texas State Senate. 4. Document is defined to be synonymous in meaning and scope as the term document is used under Federal Rule of Civil Procedure 34 and the phrase writings and recordings is defined in Federal Rule of Evidence 1001, and includes, but is not limited to, any computer discs, tapes, printouts and s, and databases, and any handwritten, typewritten, printed, electronically-recorded, taped, graphic, machine-readable, or other material, of whatever nature and in whatever form, including all non-identical copies and drafts thereof, and all copies bearing any notation or mark not found on the original. 5. In responding to these requests, please produce all responsive documents in the possession, custody, or control of the State, or documents known to be available to the State, regardless of whether such documents are possessed directly by the State or its past and present agents, advisors, employees, representatives, attorneys, consultants, contractors, or other persons or entities acting on behalf of the State or subject to the State s control. 6. All references in these requests to an individual person or officer include any and all past and present agents, advisors, employees, representatives, attorneys, consultants, 2

46 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 4 of 10 contractors, predecessors in office or position, and all other persons or entities acting on behalf of or under control of such a person. 7. All references in these requests to any governmental entity, or any other type of organization include its past and present officers, executives, directors, employees, agents, representatives, attorneys, consultants, contractors and all other persons acting or purporting to act on behalf of such an organization. 8. All documents shall be produced as they are kept in the usual course of business or be organized and labeled to correspond to each request. For all documents produced, please identify the names of the person from whose files the documents were produced. 9. No portion of a document request may be left unanswered because an objection is interposed to another part of that request. If the State objects to any portion of a document request, the State must state with specificity the grounds of any objections. Any ground not stated will be waived. 10. If production of any document referred to in this request is refused based on the assertion of a claim or privilege, with respect to each such document; (1 identify the document by date, name and title of author, name(s of recipient(s, title or references, and a description of the document without revealing information for which the privilege is claimed; (b state the privilege(s pursuant to which production is refused; and (c in the case of any document concerning any meeting or conversation, state the date and subject matter of such meeting or conversation, and identify the persons who attended the meeting or participated in the conversation. 11. In the event that a responsive document has been destroyed or has passed out of the State s custody or control, please identify the following information with respect to each such 3

47 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 5 of 10 document: its title, date, author(s, sender(s, recipient(s, subject matter, the circumstances under which it has become unavailable, and, if known, its current location and custodian. 12. In the event that a responsive document is not available in the form requested but is available in another form or can be obtained, in whole or in part, from other data in the State s possession, custody, or control, please so state and either supply the information requested in the form in which it is available or supply the data from which the information requested can be obtained. 13. Original and all non-identical copies of responsive documents, including all drafts must be produced. If the State is unable to produce the original of any document, please produce the best available copy and all non-identical copies, including drafts. 14. In construing these requests, apply the broadest construction, so as to produce the most comprehensive response. Construe the terms and and or either disjunctively or conjunctively as necessary to bring within the scope of the request all responses that might otherwise be construed to be outside that scope. Words used in the masculine gender include the feminine, and words used in the singular include the plural. 15. If any part of the requested information is stored on computer disc, tapes or in any other electronic form, and is responsive to the request, it should be provided in the electronic form, consistent with the parties agreement on production of electronically stored information. 16. Documents available only in paper or hardcopy format shall be scanned into electronic format and produced via a secure FTP site, as provided herein. 17. Paper documents shall be scanned as 300 dpi single-page TIFF files, using CCITT Group IV compression. Documents that contain color (i.e., non-black-and-white text, photographs, or graphic images shall be scanned in color. Each page shall be branded with a 4

48 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 6 of 10 unique Bates number, which shall not be an overlay of the image. The Bates numbering convention shall be in the format TX _ ######## where ######## represents the eight-digit sequential number of the document being produced by the State. The images shall be accompanied by: (1 an Opticon or IPRO cross-reference file that associates each Bates number with its corresponding single-page TIFF image file; and 2 a text load file containing one line for each document and fields for first and last Bates number, Attachment Beginning Bates Number, Attachment End Bates Number, TO, FROM, CC:, BCC:, subject, date sent, time sent, Message ID, Main Date, Title, Document Type, Custodian, Redacted flag, Original Filename, original File Path, Folder, Create Date/Time, Modify Date/Time, native filepath. The text load file shall contain a pipe ( as a field separator and carots ( ^ around each field. The text generated by Optical Character Recognition (OCR shall be saved in a text file named for the first Bates number of the document and saved in the same directory as the images. (e.g., TX_ tif and TX_ txt. 18. Word, WordPerfect, PDF, and PowerPoint documents shall be converted to images and produced consistent with the specifications in paragraph two, except that the text file accompanying the images shall contain the filename of the document as a metadata field, along with the extracted text from each document in place of OCR text, unless the document contains redactions, in which case re-ocr ed text may be provided. 19. These document requests apply to the period from January 1, 2007, through the present unless otherwise limited or expanded by a particular request. DOCUMENT REQUESTS 1. All documents identified or relied upon in responding to United States First Set of Interrogatories (March 20,

49 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 7 of All documents related to the sources, drafting, development, or analysis of S.B. 14 and the procedural sequence of introduction, consideration, and enactment of S.B All documents presented to, produced by, transmitted to, or relied upon by the State of Texas, including but not limited to the Governor, the Lieutenant Governor, the Secretary of State, the Attorney General, Legislators, and Texas county election officials, related to the drafting, proposing, development, or plans to implement S.B All documents related to any and all alternatives to S.B. 14 or amendments to S.B. 14 that were presented to, or considered, assessed, or reviewed by any Legislator during the drafting or consideration of S.B The State s voter registration database, driver license database, personal identification card database, and concealed handgun license database in a format agreed upon by the parties, along with all available underlying data necessary for purposes of comparing the data in these databases against each other and the supplemental information necessary to render the information reasonably useable to undertake an analysis of those data. 6. Databases used by the State to produce two matches of registered-voter data against data sources maintained by the State s Department of Public Safety to the Attorney General on September 7, 2011; October 4, 2011; and January 12, All documents related to the factual allegation in paragraph 33 of the First Amended Complaint (Doc. 25 that Texas s Voter-ID law was not enacted with the purpose of disenfranchising minority voters, including but not limited to each and every reason, justification, rationale, interest, or purpose related to the enactment of S.B. 14 and the nexus between any or all of those purposes and S.B

50 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 8 of All documents related to the factual allegation in paragraph 36 of the First Amended Complaint (Doc. 25 that S.B. 14 imposes a minor inconvenience on voters. 9. All documents related to the factual allegation in Claim One of the First Amended Complaint (Doc. 25 that S.B. 14 does not have the effect of denying or abridging the right to vote on account or race or color, or because of membership in a language minority group. 10. All documents related to communications between, among, or with Legislators, their staff, lobbyists, groups, organizations and members of the public concerning the introduction, enactment, or implementation of S.B All documents related to any calculations, reports, audits, estimates, projections, or other analyses of the effect that S.B. 14 will impose upon minority voters, on voters on account of race or color, or on voters who are members of a language minority group. 12. All documents related to plans to implement and administer the issuance of election identification certificates established by S.B All documents that list or otherwise identify any and all forms of photo identification issued by the State. 14. All documents related to any and all allegations concerning (a in-person voter impersonation or other in-person voter fraud that occurred in the State of Texas from January1, 2002, to the present and (b instances of voting in Texas by persons who are not citizens of the United States from January1, 2002, to the present. 15. All documents related to any calculations, reports, audits, estimates, projections, or other analyses of all activities that a person who is a registered voter, but does not have the requisite identification, must complete in order to obtain the documentation necessary to cast a valid ballot pursuant to S.B

51 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 9 of All documents related to any reports, estimates, projections, or other analyses of the impact that S.B. 14, or other proposals to require voter applicants or voters to produce photo identification, will or may have on voter turnout or voter registration. 17. All documents related to any reports, estimates, projections, or other analyses of the impact that S.B. 14 will or may have on rates of use of and acceptance of provisional ballots. 18. All documents related to implementation of S.B. 14 and training, voter education, and outreach concerning S.B. 14, including but not limited to training of county election officials, state agencies, and election-related organizations or associations; voter education; and mobile outreach or any other effort to provide voters who do not possess requisite photo identification under S.B. 14 with an election identification certificate or other form of identification accepted under S.B All documents related to the consideration of S.B. 362 (81st Legislature and H.B. 218 (80th Legislature. Date: March 20, 2011 RONALD C. MACHEN, JR. United States Attorney District of Columbia THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Elizabeth S. Westfall T. CHRISTIAN HERREN, JR. MEREDITH BELL-PLATTS ELIZABETH WESTFALL BRUCE I. GEAR JENNIFER MARANZANO DANIEL J. FREEMAN Attorneys Voting Section, Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: (

52 Case 1:12-cv RMC-DST-RLW Document Filed 06/20/12 Page 10 of 10 CERTIFICATE OF SERVICE OF DISCOVERY I hereby certify that on March 20, 2012, I served a true and correct copy of the foregoing via electronic mail on the following counsel of record: Jonathan Franklin Mitchell Adam Aston Arthur D Andrea Office of the Attorney General of Texas jonathan.mitchell@oag.state.tx.us adam.aston@oag.state.tx.us Arthur.dandrea@oag.state.tx.us Counsel for Plaintiff Chad W. Dunn Brazil & Dunn chad@brazilanddunn.com J. Gerald Hebert hebert@voterlaw.com Mark A. Posner Lawyers Committee for Civil Rights mposner@lawyerscommittee.org Ezra Rosenberg Dechert LLP ezra.rosenberg@dechert.com Myrna Perez Brennan Center for Justice myrna.perez@nyu.edu Jose Garza garzpalm@aol.com Counsel for NAACP Intervenors Counsel for Kennie Intervenors /s/ Elizabeth S. Westfall Elizabeth S. Westfall U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: ( elizabeth.westfall@usdoj.gov