Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR. and the LOUISIANA STATE CONFERENCE OF THE NAACP, v. Plaintiffs, TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Civil Action No. 2:11-cv JTM-JCW Section: H JUDGE JANE TRICHE MILAZZO Magistrate: 2 MAG. JOSEPH C. WILKINSON, JR. Defendants. PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANT SCHEDLER S MOTION TO DISALLOW/STRIKE SUPPLEMENTAL EXHIBITS AND EVIDENCE ON PLAINTIFFS REPLY TO MOTION FOR SUMMARY JUDGMENT (DOC. 325) Plaintiffs Luther Scott, Jr. and the Louisiana State Conference of the NAACP ( Plaintiffs ) submit this memorandum in opposition to Defendant Schedler s Motion to Disallow/Strike Supplemental Exhibits and Evidence, Doc. 325 ( this motion or third motion to strike ). PRELIMINARY STATEMENT This Court previously denied two motions to strike filed by Defendant Schedler. See Doc. 176 (denying Defendant Schedler s first motion to strike); Doc. 209 (denying Defendant Schedler s second motion to strike). Undeterred, Defendant Schedler now files a third motion to strike, Doc. 325, this time seeking to strike seventeen (17) exhibits, currently docketed as Docs through ( Plaintiffs Summary Judgment Reply Exhibits ). These exhibits were 1

2 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 2 of 9 filed in support of Plaintiffs Reply Memorandum of Law in Support of Plaintiffs Motion for Summary Judgment. Defendant Schedler s latest motion to strike reiterates precisely the same argument from his last unsuccessful motion to strike, in which Defendant Schedler without citing any authority or basis in law argued that the exhibits attached to Plaintiffs Partial Summary Judgment Reply Brief should be stricken because Plaintiffs did not seek leave from the Court to file supplemental exhibits. See Doc , Defendant Schedler s Second Motion to Strike, at 1 (seeking to strike Plaintiffs partial summary judgment reply exhibits for failure to seek leave of court to allow the filing of additional exhibits ). This Court rejected that argument with respect to the exhibits attached to Plaintiffs Partial Summary Judgment Reply Brief. See Doc. 209 (minute order denying motion to strike); Doc. 229, Tr. of Motion Hearing held on April 20, 2012, at 1 ( The Court finds that plaintiffs reply exhibits were properly filed. ). Defendant Schedler offers no reason why this Court should treat this motion any differently from his last one. Like the exhibits that Defendant Schedler sought to strike last time, Plaintiffs Summary Judgment Reply Exhibits were properly filed as evidence in support of Plaintiffs Motion for Partial Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. This motion should be denied. ARGUMENT I. PLAINTIFFS REPLY EXHIBITS WERE PROPERLY FILED AND ADDRESS ASSERTIONS MADE BY DEFENDANT SCHEDLER IN HIS OPPOSITION BRIEF Defendant Schedler objects to Plaintiffs Reply exhibits on the grounds that Rule 56(e) of the Federal Rules of Civil Procedures purportedly requires Plaintiffs to seek leave from the Court before submitting exhibits attached to a reply brief. That contention is meritless. 2

3 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 3 of 9 Initially, there is no dispute that Plaintiffs Summary Judgment Reply Exhibits constitute proper evidence for consideration on summary judgment. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a party moving for summary judgment may support or dispute an assertion of fact by citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.] Fed. R. Civ. P. 56(c)(1)(A). Defendant Schedler does not argue that the exhibits at issue are improper summary judgment evidence under Rule 56(c), but instead argues that these exhibits may not be submitted in support of a reply brief. Plaintiffs, however, are permitted to present evidence in their Reply to rebut assertions raised for the first time in Defendants Opposition briefs. See, e.g., Torregano v. Cross, No , 2008 WL , at *2 (E.D. La. Aug. 27, 2008) (permitting plaintiff to file a reply, including new evidence, where the new evidence was used to rebut arguments raised by defendants in their opposition). Indeed, this Court previously found that Plaintiffs were not required to seek leave to file exhibits attached to a reply brief. See Doc. 229, Tr. of Motion Hearing held on April 20, 2012, at 1 ( The Court finds that plaintiffs [partial summary judgment] reply exhibits were properly filed. ). Defendant Schedler offers no basis for why this Court should change course and suddenly impose such a requirement now. Moreover, unlike Defendants who, in their Opposition Briefs, rely on several new documents that were not disclosed during discovery, as well as declarations from nine (9) new individuals who were never identified by Defendants as potential witnesses, see Doc , Pls. Motion to Strike at 1-2 Plaintiffs do not rely on any new evidence in connection with their Reply Brief. Plaintiffs Summary Judgment Reply Exhibits consist of: (1) documents 3

4 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 4 of 9 disclosed or utilized during discovery (see Docs , 321-4, 321-7, 321-8, , and ); (2) deposition transcripts (see Docs , 321-6, 321-9, , , , , , ); and (3) declarations from individuals who were properly identified as witnesses, and who have already been deposed by Defendants (see Docs , ). Defendants can hardly claim undue surprise with respect to any of this evidence. Nor can Defendants claim that the admission of Plaintiffs declarations would be inequitable: in support of Defendants opposition briefs, Defendant Schedler himself has similarly submitted two new declarations containing new information. See Docs (Declaration of Elsie Cangelosi): (Declaration of Angie Rogers). Plaintiffs have not sought to strike these declarations from Defendant Schedler. 1 In sum, Defendant Schedler s latest motion to strike is premised entirely on legal theory previously rejected by this Court. Like his last motion to strike, this motion to strike should be denied as well. II. THERE IS NO BASIS FOR STRIKING PLAINTIFF LUTHER SCOTT S SUPPLEMENTAL DECLARATION In his motion to strike, Defendant Schedler focuses in particular on Plaintiff Luther Scott s Supplemental Declaration (Doc ). But there is no basis for prohibiting Mr. Scott from correcting apparent errors in his initial Declaration. Cf. Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (where affidavit was defective, party should have an opportunity to file a corrected affidavit ). Indeed, parties routinely file corrected affidavits or declarations to 1 Plaintiffs recognize that the use of new declarations from individuals who were properly identified as potential witnesses is permissible, and have not moved to strike these particular declarations from Defendant Schedler. Rather, the only declarations Plaintiffs have sought to strike are those from individuals whom Defendants failed to identify as potential witnesses during the discovery period. See 315-1, Pls. Motion to Strike at 3-4 (moving to strike 9 declarations submitted by Defendants Johnson and Greenstein from individuals who were never identified as having discoverable information under Rule 26 or as potential witnesses pursuant to this Court s scheduling order). 4

5 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 5 of 9 correct apparent errors or deficiencies in earlier statements. See, e.g., Sullivan v. Paulson, No. No. 3:06-CV-1033-BF ECF, 2007 WL , at *9 n.5 (N.D. Tex. June 20, 2007) (permitting party to file amended declaration correcting factual error in initial statement); Contractor's Source Inc. v. Hanes Cos., Inc., No. Civil Action No. 09-cv-0069, at *1 n.2 (S.D. Tex. Dec. 29, 2009) (denying motion to strike amended declaration offered to cure deficiencies in original declaration). To the extent that Mr. Scott s Supplemental Declaration includes additional information not included in his initial declaration, it does so only to respond to the new evidence presented by Defendants concerning a benefits application from December 2011 evidence that, as Plaintiffs have noted, was not produced to Plaintiffs during the discovery period, despite being relevant to this case and responsive to Plaintiffs document requests, and which was not made available to Plaintiffs prior to the time that Mr. Scott s initial declaration was submitted to the Court. See Doc , Pls. Mot. To Strike, at 6, 10. This Court should not permit Defendants to rely on such new evidence to challenge Mr. Scott s standing, without affording Plaintiffs an opportunity to respond: Defendant cannot challenge Plaintiffs to prove their standing on the one hand, and then, on the other hand, put up procedural roadblocks to prevent them from producing documents to support their standing argument. To allow such tactical schemes would be patently unfair. GE Capital Commercial Inc. v. Worthington Nat l Bank, No. 3:09-CV-572-L, 2011 WL , at * 6 (N.D. Tex. July 25, 2011). 2 Finally, the judicial estoppel doctrine invoked by Defendant Schedler is inapplicable 2 In addition to addressing this new evidence, Mr. Scott s Supplemental Declaration also reiterates Mr. Scott s previous deposition testimony concerning certain events. Compare Doc , Pls. Ex. 52, Supplemental Dec. of Luther Scott, 2-9, with Doc , Pls. Ex. 49, Scott Dep., Vol. I., at 19:3-20 (explaining that he had forgotten about voter registration cards from 2008, and that he did not know if those cards had actually been submitted to the appropriate elections officials). Defendants cannot complain of undue surprise with respect to information to which Mr. Scott has already testified during his depositions. 5

6 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 6 of 9 here. As Defendant s own authority states, this doctrine applies to situations where a party attempts to abandon[] a position he successfully maintained in a prior proceeding or earlier in the same proceeding, United States v. McCaskey, 9 F3d 368, 379 (5th Cir. 1993). For example, in McCaskey, the federal government successfully advanced one factual theory at the indictment phase of a criminal proceeding, but then sought to advance a different factual theory at the sentencing phase. See id. at 378. The judicial estoppel doctrine is not meant for situations like this case, where a party simply seeks to address new evidence and arguments raised by Defendants in their opposition briefs, and apparent errors in an earlier statement that has yet to be relied upon by the Court in any way. Finally, Defendant Schedler once again resorts to baseless accusations and name-calling intended to impugn Mr. Scott s character. This Court should not countenance such efforts to distract attention from the serious issues at the heart of this case: namely, whether Defendants have complied with their statutory obligations to provide public assistance recipients who are among our most vulnerable fellow citizens with an opportunity to register to vote. Mr. Scott is an indigent man who has been intermittently homeless in recent years; despite his challenging circumstances, he seeks to vindicate his rights under federal law, and he has done his best to recall the precise details of relatively short interactions with state personnel. He now seeks to clarify several non-material details from his initial declaration. He should not be subjected to name-calling and accusations from Defendants for simply doing his best to make sure that the record is clear. CONCLUSION For the reasons set forth above, Defendant Schedler s Motion to Strike should be denied. DATED: September 4,

7 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 7 of 9 Respectfully submitted, /s/ Sarah Brannon PROJECT VOTE Sarah Brannon* Niyati Shah* Michelle Rupp* 1350 Eye Street, NW, Suite 1250 Washington, DC Telephone: (202) Ext. 302 Facsimile: (202) sbrannon@projectvote.org *MOTION FOR ADMISSION PRO HAC VICE GRANTED NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. Debo P. Adegbile Ryan P. Haygood* Dale Ho* Natasha Korgaonkar* Leah Aden* 99 Hudson St., Suite 1600 New York, NY Telephone: (212) Facsimile: (212) dho@naacpldf.org *MOTION FOR ADMISSION PRO HAC VICE GRANTED Ronald L. Wilson 701 Poydras Street Suite 4100 New Orleans, Louisiana Telephone: (504) Facsimile: (504) cabral2@aol.com FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Michael de Leeuw* Israel David* One New York Plaza 7

8 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 8 of 9 New York, New York Telephone: (212) Facsimile: (212) Michael.deleeuw@friedfrank.com Israel.david@friedfrank.com *Motion For Admission Pro Hac Vice Granted 8

9 Case 2:11-cv JTM-JCW Document 330 Filed 09/04/12 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on September 4, 2012, I electronically filed the foregoing with the Clerk of court by using the CM/ECF system which will send a notice of electronic filing to counsel of record who are registered participants of the Courts CM/ECF system. I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of record who are not CM/ECF participants as indicated in the notice of electronic filing. /s/ Sarah Brannon PROJECT VOTE Sarah Brannon* 1350 Eye Street, NW, Suite 1250 Washington, DC Telephone: (202) Ext. 302 Facsimile: (202) sbrannon@projectvote.org *MOTION FOR ADMISSION PRO HAC VICE GRANTED Attorney for Plaintiffs