Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 1 of 49 PageID: 7634

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1 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 1 of 49 PageID: THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 CIVIL ACTION NO (JMV) x : 4 DEMOCRATIC NATIONAL COMMITTEE, : TELEPHONIC et al., : TRANSCRIPT 5 Plaintiffs, : OF -v- : PROCEEDINGS 6 : (TELEPHONIC CONFERENCE) REPUBLICAN NATIONAL COMMITTEE, : 7 et al., : : 8 Defendants. : x 9 September 29, 2017 Newark, New Jersey 10 B E F O R E: HONORABLE JOHN MICHAEL VAZQUEZ, U.S.D.J A P P E A R A N C E S: 13 GENOVA, BURNS, ESQS., BY: ANGELO J. GENOVA, ESQ., 14 BRETT PUGASH, ESQ., & 15 PERKINS, COIE, ESQS., BY: JOSHUA L. KAUL, ESQ., 16 Attorneys for the Plaintiffs 17 KING & SPALDING, ESQS., BY: BOBBY R. BURCHFIELD, ESQ., 18 MATT LELAND, ESQ., BARRETT YOUNG, ESQ., 19 Attorneys for the Defendants 20 NOTE: ANYONE WISHING TO PURCHASE A COPY OF THIS TRANSCRIPT CONTACT JOHN K. STONE, CSR - Tel. No or 21 jkstoneage@verizon.net 22 Purusant to Section 753 Title 28 United States Code, the following transcript is certified to be an accurate record 23 taken stenographically in the above entitled proceedings. s/ John K. Stone 24 JOHN KEVIN STONE, 25 Official Court Reporter

2 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 2 of 49 PageID: ( Via telephone ). 2 ( In chambers ). 3 MR. KAUL: Morning, Your Honor. 4 MR. BURCHFIELD: Morning, Your Honor. 5 THE COURT: Good morning, counsel. 6 Before I put the appearances on the record, is 7 everybody on the line right now or are we waiting? 8 MR. LELAND: Everybody is from defendants' side, 9 Your Honor. 10 THE COURT: How about plaintiff? 11 MR. KAUL: No, I apologize, Your Honor, this is 12 Josh Kaul. I have haven't heard from Raj and Angelo on the 13 line but I don't THE COURT: All right. 15 We'll give them a minute to join, okay, and then 16 I'll put the appearances on the record. I'm just going to 17 put you on mute for right now until I hear them buzz in. 18 Okay? 19 MR. KAUL: That's fine. If the Court wants to get 20 started, I certainly don't want to delay Your Honor, so THE COURT: Let's give them a minute, and if not, 22 we'll get started. Okay? 23 MR. KAUL: Thank you. 24 THE COURT: All right. 25 ( After a brief recess the conference resumed ).

3 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 3 of 49 PageID: THE COURT: Okay. Counsel? 2 MR. KAUL: Yes, Your Honor. 3 THE COURT: Okay. 4 Has Mr. Genova and Mr. Parikh, have they joined? 5 MR. KAUL: They have not, Your Honor. I just got 6 an from them saying they're calling in now. So I 7 think they'll be here momentarily. But we're ready to 8 announce the appearances and move on. 9 THE COURT: Okay. 10 So why don't we go ahead and start. They can put 11 their appearance as soon as they join. 12 So we're on the record in the matter of the 13 Democratic National Committee, et al versus the Republican 14 National Committee, the Docket Number is Can I please have the appearances of counsel, 16 starting with the DNC. 17 MR. KAUL: Your Honor, for the DNC, this is Josh 18 Kaul. 19 THE COURT: Hello, Mr. Kaul. 20 MR. KAUL: Morning, Your Honor. 21 THE COURT: Good morning. 22 And for the RNC? 23 MR. BURCHFIELD: Your Honor, this is Bobby 24 Burchfield, and with me is Matt Leland, who will be doing 25 most of the talking today, and Barrett Young.

4 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 4 of 49 PageID: THE COURT: Okay. 2 MR. LELAND: Good morning, Your Honor. 3 THE COURT: Good morning, Mr. Burchfield, Mr. 4 Leland and Mr. Young. 5 MR. BURCHFIELD: Thank you, Your Honor. 6 Good morning to you. 7 THE COURT: All right. 8 So the reason we're having this call, in light of 9 our last call, I believe it was in early September, I 10 believe it was September 7th of 2017, is to address the 11 issue of whether there should be further discovery at this 12 time. 13 The RNC's position is that they produced a great 14 deal of documents and there's no evidence indicating that 15 further discovery is necessary. The DNC takes the contrary 16 position. 17 What I have reviewed in preparation for today's 18 call is the September 13th, 2017 letter from Mr. Genova, 19 which is Docket Entry 176. It also has five exhibits which 20 I've reviewed. 21 I then reviewed Mr. Burchfield's opposition dated 22 September 20th, 2017, which is Docket Entry 177. That has 23 one exhibit attached, which I reviewed. 24 And then finally, I've also reviewed the September 25 25th, 2017 reply by Mr. Genova, which is Document Entry 180.

5 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 5 of 49 PageID: So, several issues are raised by the DNC. And I'm 2 just going to briefly state them on the record. 3 First, is the deposition of Tommy Knepper, that's 4 K-n-e-p-p-e-r. 5 Second is requested additional discovery as to 6 Stampede and the Nevada poll watchers who are identified in 7 the papers, four individuals, last name, Petersen, Holland, 8 Stamps and Santiago. 9 There is also a request to depose Mr. Priebus. 10 And then, finally, there is a count for -- I'm 11 sorry, a request for additional interrogatories as to a 12 recount memorandum that's attached as Exhibit So let me start with Mr. Kaul and we'll take it 14 issue by issue. But Mr. Kaul, one of the questions I had THE ANNOUNCER: Joining the meeting. 16 MR. GENOVA: Angelo Genova. 17 THE COURT: Okay. 18 MR. GENOVA: I apologize. I had the wrong number. 19 THE COURT: No problem. All right. 20 So, Mr. Genova, this is Judge Vazquez, we have Mr. 21 Kaul on the line, we have Mr. Burchfield, Mr. Leland, Mr. 22 Young. 23 Is Mr. Parikh with you, Mr. Genova? 24 MR. GENOVA: No, he's not, Your Honor. Brett 25 Pugash of my office is with me.

6 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 6 of 49 PageID: THE COURT: Okay. All right. 2 We just started, and I just reviewed what I've 3 reviewed for today's telephone conference, which is 4 essentially all the submissions of the parties with 5 exhibits. 6 Before we go issue by issue, the one question I had 7 is, and I know this came up in the earlier submissions, Mr. 8 Parikh had argued it earlier, about the scope of discovery. 9 And I just wanted to get the DNC's view. 10 Because there's been several references, again, as 11 to the scope of discovery, and why it should be much broader 12 than what's been permitted by the Court. 13 And the reason I ask that is because I went back, 14 reviewed the opinion that was entered before the election, I 15 clearly state in -- clearly stated, I thought, that 16 following the election the Court will hear from the parties 17 as to whether additional discovery is justified and, if so, 18 the scope of discovery. 19 Now, obviously, after the election I did hear the 20 parties on it. I made rulings and there has been discovery 21 permitted. 22 But I'm just confused as to the DNC's position as 23 to why the discovery should be much broader than what has 24 been permitted. I mean there's references -- because this 25 is really an allegation that there's been a violation of the

7 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 7 of 49 PageID: consent decree. I've looked at those allegations and 2 fashioned the discovery as I thought appropriate in light of 3 the allegations and the evidence presented. 4 But I know that the DNC's been taking a position 5 now, it's come up again in these papers, as to why the 6 discovery should be much broader than permitted. Can I just 7 get the DNC's position on that? 8 MR. KAUL: Yes, Your Honor. 9 In -- I think it's Docket Entry 165, which was our 10 supplemental filing regarding the scope of discovery from those were the papers that preceded the last conference we 12 had, where we discussed how broad the document request 13 should be. 14 THE COURT: Hhmm-hmm. 15 MR. KAUL: You know, the case law that we were 16 pointing to indicated, and I acknowledge I haven't looked at 17 it recently so I'll have to let the file speak for itself, 18 largely. But my recollection is it indicates that the scope 19 of discovery in post judgment proceedings should be 20 comparable to the scope of discovery in an ordinary 21 proceeding where parties are allowed to seek discovery on, 22 you know, issues of relevance and issues -- and to seek 23 discovery that may encompass, that will lead to discoverable 24 evidence. And so in a typical proceeding that would be much 25 broader I think than what we've had the opportunity to do

8 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 8 of 49 PageID: hear. I think certainly there are some depositions we would 2 be permitted to take without question. 3 I mean I don't want to suggest, we understand the 4 point the Court has made in the Court's orders, and it's 5 always been working within that framework. But that's our 6 view as to the legal backdrop for the scope of discovery in 7 this sort of proceeding. 8 MR. GENOVA: And, Judge -- Judge, Angelo Genova 9 here. 10 And what's somewhat evidential of that is if you go 11 back to Judge Debevoise's order back in the 80's, it's the 12 '85 or '86 order -- '87, actually. He actually, in the 13 recitals, which was the first application I believe on an 14 enforcement proceeding, or an alleged violation of the 15 order, in the second recital he refers to the fact that the 16 parties have engaged in extensive discovery from each other 17 and third parties, and indicates that more than depositions had been taken, and thousands of documents have 19 been examined. 20 So at least in the first enforcement proceeding in the first enforcement proceeding we do have some 22 indication that in that matter there was extensive 23 discovery. 24 Admittedly, different facts, different 25 circumstances that might have precipitated the application.

9 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 9 of 49 PageID: But nonetheless, more consistent with the idea that typical 2 discovery is available to the parties. 3 THE COURT: Well, but in this case, first of all, 4 the consent decree itself has been modified twice since 5 then. Right. 6 So we have the 1987 modification and we have the modification. And that's the document I'm working off 8 of in light of the allegations. 9 And what I'm struggling to understand is, this is 10 not a new case, in the sense that a new lawsuit was filed 11 alleging violations of the law. This is a lawsuit that was 12 filed alleging violations of the consent decree. So there I 13 see it focused on what the allegations as to the violations 14 of the consent decree are. 15 And then secondly, what -- what judgment are you 16 referring to as far as post judgment discovery? There I'm 17 having a hard time. 18 I made a ruling denying injunctive relief and 19 motion for contempt. But what judgment is the DNC relying 20 upon to say this is the judgment that entitles us to post 21 judgment discovery? 22 So, for instance, this is not a case where you've 23 won a verdict and it's a ten million dollar verdict and the 24 defendant is saying, well, I don't have any assets and we're 25 saying, okay, you can take discovery as to the defendant's

10 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 10 of 49 PageID: assets. 2 I'm trying to understand the DNC's argument as to 3 the post judgment discovery in the facts of this case. 4 MR. KAUL: Your Honor, it's -- the judgment is the 5 consent decree itself. This is about an original judgment 6 from the original case, and it applies. And I think it is 7 actually comparable to a case where you filed a suit 8 alleging a violation of the law. For purposes of the 9 parties in the case, the consent decree effectively is the 10 law. 11 And so what we've alleged, you know, a violation of 12 that agreement. And so our view's we're entitled to 13 discovery on it. 14 It's post judgment in the sense, I believe the 15 cases we cited, and again I haven't looked at that right 16 before this hearing, but I believe they indicate that within 17 the scope of discovery in this sort of enforcement 18 proceeding is comparable to the sort of discovery as if 19 you're trying to reach a judgment, which is broad in either 20 case. 21 THE COURT: Okay. 22 MR. GENOVA: And the judgment, Your Honor, as 23 modified by the subsequent orders that you identified, the 24 '87 order and then the 2009 order, I mean those -- it's 25 essentially conversions of all three, the original and the

11 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 11 of 49 PageID: two subsequent. 2 And notable, Your Honor, is -- you know, in the 3 first introduction of the pre-clearance requirement, which 4 is somewhat relevant to what we're talking about here, was 5 actually introduced in '87 for the first time and 6 subsequently modified in THE COURT: Okay. All right. I understand your 8 argument. 9 I just don't understand how it fits in the facts of 10 this case. I mean, you know, we understand that if it was 11 just a regular lawsuit you would have to make plausible 12 pleadings, and to the extent I found that there was evidence 13 to support or at least raise a concern as to your positions, 14 I attempted to permit discovery in those areas. 15 But I didn't -- I never meant to indicate in either 16 my opinion or afterwards, that this meant we're going to 17 have wholesale discovery after the election. Unless the DNC 18 had a good faith basis to seek it. 19 So -- okay. So we just have a different view as to 20 the scope. But I certainly never -- I don't think I 21 indicated that in my opinion. I thought I made it clear 22 it's going to be based on the showing made by the DNC, and 23 that we're going to have discovery as appropriate and 24 proportionate to those showings. 25 In any event, the first issue is Mr. Knepper. What

12 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 12 of 49 PageID: I wanted to basically ask the DNC is, I read the s. 2 They certainly refer to poll watching, and there is the 3 reference to integrity. Of course, that's in an chain 4 where Mr. Knepper is just included at the last . He's 5 not on those discussions until the very end. 6 But clearly, they're saying the poll -- the s 7 are, we're having poll watching, and the is 8 contemplated at four locations, and it was to gauge turn 9 out. I mean that's clearly what's stated in the Now, I read the conclusion from the DNC that quote, 11 "there is a strong chance that Mr. Knepper and the RNC at 12 least facilitated prohibited ballot security efforts." 13 So can you explain to me, how, in light of those 14 s, you're reaching that logical inference that this 15 shows there's a strong possibility there was a violation of 16 the consent decree? 17 MR. KAUL: Yes, Your Honor. 18 The -- I think there's no dispute that the 19 Pennsylvania Republican Party was in -- was planning to 20 conduct ballot security efforts in this election. 21 And to the extent that the RNC was working with the 22 Pennsylvania Republican Party on its procedures for watching 23 the polls in any way, you know, it -- if there are already 24 Pennsylvania GOP people going out to do ballot security it 25 would have had to have been helping that effort, and the

13 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 13 of 49 PageID: fact that the person refers to ensuring integrity in 2 response to the written about poll watching, we think 3 is evidence that that's part of what the Pennsylvania GOP 4 poll watchers were planning do in this effort that was being 5 facilitated by the state party. 6 And again, this is contrary to the representations 7 that the RNC made, that its employees were not involved in 8 poll watching in any way, which raises a suspicion. 9 And again, we're not asking, and this is I think 10 the critical point here. We're not asking the Court to 11 conclude that there is any sort of improper activity based 12 on these documents. We're just asking for the opportunity 13 to conduct a deposition of Mr. Knepper. 14 THE COURT: No, I understand the request. 15 All right. Let me hear from Mr. Leland. 16 Mr. Leland, you're going to be arguing for the RNC 17 on this? 18 MR. LELAND: Yes, please, Your Honor. 19 THE COURT: Okay. 20 And what's your view? 21 MR. LELAND: Well, I start rff, Your Honor, with 22 the fact that last fall we had extensive evidence that the 23 RNC took a lot of measures to ensure that its employees were 24 not engaged in ballot security. 25 We've done our document production. The documents

14 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 14 of 49 PageID: show that they actually understand those guidelines from 2 counsel's office and had been following them. 3 There's no evidence here that there's any 4 involvement in ballot security measures. 5 And, Your Honor, we read the that the DNC is 6 relying upon I think the same way that you do. I count at 7 least four references in this chain where individuals 8 who are not part of the RNC, but are with the Pennsylvania 9 GOP, are discussing voter turnout monitoring. And get out 10 the vote activities. 11 So we don't see that there's a reasonable basis 12 here for concluding at all that somehow the fact that the 13 RNC is working with the Pennsylvania State GOP, that they're 14 engaged in ballot security activities. I think that's clear 15 on the document. 16 I also note THE COURT: I guess that -- okay. 18 Go ahead. I'm sorry, Mr. Leland. 19 MR. LELAND: I didn't mean to cut you off, Your 20 Honor. 21 THE COURT: I was just going to ask you, the DNC's 22 position is, well, that may not be the reasonable inference 23 that I have to draw at this time, that there was prohibited 24 activities. Their position is, it's enough to give them a 25 deposition at this time. I just want to get your views on

15 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 15 of 49 PageID: that. 2 MR. LELAND: We don't think that -- we don't think 3 that they're -- in fact, just the opposite. You saw with 4 our fileing, you saw many s from Mr. Knepper where he's 5 explaining to folks who are affiliated with the RNC, that we 6 can't be involved in not only ballot security activities, 7 but poll monitoring activities. 8 You have something there that's very different. 9 You have the RNC engaged in get out the vote activities. 10 Monitoring voter turnout at precincts is a critical 11 component of that. It's a very dynamic process. You need 12 to know how you're going to be allocating your own personnel 13 to ensure that your voters get to the poll that day. If you 14 see low voter turnout in your precinct, you better get your 15 people mobilized to get your voters to the polls. 16 So this is not ballot security activities. This is 17 not poll monitoring. And other than this document, we don't 18 see any basis for the R -- or the DNC to request the 19 deposition of Mr. Knepper. 20 THE COURT: Okay. 21 DNC like to respond? 22 MR. KAUL: Just briefly, Your Honor. 23 We -- and this is a point we made multiple times, 24 but we keep hearing the defense is, you know, the RNC put 25 out these guidelines and everybody complied with them.

16 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 16 of 49 PageID: But this -- these s are evidence that they're 2 not being complied with. This is poll watching by, you 3 know, as described. 4 We've already got evidence from Nevada also 5 indicating they weren't being complied with. 6 And again, what we're asking for is pretty limited. 7 It's just to test exactly what Mr. Knepper was involved with 8 and what he wasn't. I mean he's got some s saying he 9 can't be involved in poll watching, and then we've got these 10 s showing he was helping to coordinate that. So that's 11 what we want to be able to probe. 12 THE COURT: Well, let me ask you something. 13 MR. LELAND: Your Honor THE COURT: Hold it, let me just ask Mr. Kaul a 15 question. 16 You know, when I went back and looked at the most 17 recent consent decree, obviously, ballot security as defined 18 is prohibited. Normal poll watch function is permitted. 19 Now, it's defined as stationing individuals at 20 polling stations to observe the voting process and report 21 irregularities unrelated to voter fraud to duly appointed 22 state officials. So that's permitted under the consent 23 decree. 24 But this seems to say poll watching related to 25 voter turnout, which wouldn't be prohibited under the

17 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 17 of 49 PageID: consent decree, but doesn't even seem to be contemplated by 2 the consent decree. Because it's not dealing with 3 irregularities, it's looking to see what is the voter 4 turnout in each particular station. 5 So, I'm trying to get the DNC's position here. I 6 don't even see this as -- normal poll watching function 7 would be prohibited -- I mean permissible, as long it 8 doesn't relate to voter fraud. But here it's poll watching 9 to see voter turnout. Which doesn't seem to be a concern 10 that was ever raised during the proceedings. 11 MR. KAUL: Your Honor, there are three things. 12 One, I agree with you that if there's poll watching 13 just to monitor turnout and it's not violating the effect 14 test in some way, that's not a violation of the consent 15 decree. 16 But I don't think that's what we have here. 17 First of all, we've got specific references to 18 monitoring for integrity in one of these documents. And I 19 think the RNC's position that monitoring for integrity as to 20 turnout is implausible, as we set forth in our filing. 21 THE COURT: Well, that -- hold on, Mr. Kaul. 22 That's not -- that's not my reading of the statement. 23 The reading of the statement is we are going to do 24 poll watching at these four areas for turnout, and they said 25 that's not going to be enough for integrity.

18 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 18 of 49 PageID: Now, the question is what do they mean by 2 "integrity." 3 But I never saw them saying we're watching those 4 four for integrity. The question is should we do more for 5 integrity, and the question becomes, what do you mean by 6 integrity. And I understand RNC's position, integrity of 7 are we getting out the vote, and your position is ballot 8 integrity. 9 But I don't even see a reference saying they're 10 watching those four areas for voter turnout for integrity 11 purposes. I see them saying, we may do more for integrity. 12 And then the question is, what do you mean by "integrity." 13 But I don't see that in the exchange. 14 MR. KAUL: Well, the point we're making, Your 15 Honor, is -- and I think it's important to sort of step back 16 and the look at the broader context. We've drawn very fine 17 legal distinctions between what the national GOP is doing 18 and what the local GOP is doing. 19 But -- and I think, as this document evidences, the 20 local activists, who are going to the poll to be doing this 21 poll watching, clearly view themselves as being involved in 22 election integrity efforts. And that's not surprising, 23 given that the presidential candidate for the Republican 24 party was talking about this, given that the local 25 Republican party was talking about this.

19 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 19 of 49 PageID: So these activists were going out to the polls, 2 clearly view themselves, as this we think indicates, 3 as doing integrity work. 4 And so when the RNC is helping to coordinate, to 5 get watchers to the polls, if some of those watchers ended 6 up doing integrity work, and that's one of the things we 7 want to press Mr. Knepper about, that's a violation of the 8 consent decree. Whether or not the RNC is sending s 9 that just describe it as just for turnout purposes, they're 10 still facilitating the monitoring at the poll, inappropriate 11 monitoring. 12 THE COURT: Okay. I understand your position. 13 All right. Stampede and Nevada poll watchers. The 14 second issue. 15 One thing that Exhibit 4 talks about the 16 possibility of assigning a contract from the Trump between the Trump campaign and Stampede to -- from Trump, 18 the Trump campaign to the RNC. So the assignment would be 19 from the Trump campaign to the RNC. And the Trump campaign 20 had the contract with Stampede. 21 Again, for the DNC, there's a discussion about the 22 possibility of assigning the contract. But how do those 23 discussions violate the consent decree? 24 We can talk about the substance of the contract, 25 but I don't know if we have to get there if it's just a

20 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 20 of 49 PageID: discussion about assigning as opposed to an actual 2 assignment. 3 MR. KAUL: Your Honor, we -- the discussions of an 4 assignment, I agree with you, wouldn't violate the consent 5 decree. 6 But again, this is a point where I think we're 7 being, you know -- this is a great of example of why we 8 should be permitted to have discovery on this. Because we 9 don't know what happened. We don't know what conversations 10 the RNC had with the Trump campaign about this assignment. 11 Except -- we don't know what Trump's campaign's agreement 12 was with Stampede. We just don't know because we haven't 13 any discovery in these areas. 14 And so what we've tried to do -- I shouldn't say we 15 haven't had discovery, we haven't had full discovery beyond 16 the scope of the limited document requests. 17 But, you know, we've identified a place here where, 18 you know, if there were conversations with -- between the 19 RNC and the Trump campaign and they related to ballot 20 security in Nevada, that would be a violation. We don't 21 know. But we have no idea what's going on with this 22 contract and the assignment based on the discovery so far. 23 THE COURT: Now, let me ask you. The consent 24 decree clearly is focused on deterring voters under the 25 guise of voter fraud. And the Third Circuit subsequently

21 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 21 of 49 PageID: recognized minority voters. 2 Then you take a look at the actual contract itself, 3 and what I'm trying to see where in the contract, and I 4 don't see anything that jumps out at me that says that's 5 what was going to occur, even between this contract, I'm 6 sorry, involving this contract between the Trump campaign 7 and Stampede. There's a list of targetted households, they 8 want to canvas and interface, the goal is 171,000 targetted 9 households, to get out the vote. You know. They're going 10 to targetted maps, scripts, collateral materials and so 11 forth. 12 What's the DNC's position, when you read the actual 13 contract itself, it seems to be more focused on a get out 14 the vote effort than it does to be deterring people from 15 voting. 16 MR. KAUL: Your Honor, my understanding, and the 17 RNC may need to help us with this, but my understanding is 18 that the that was produced had two documents attached 19 to it. One was a proposed contract assignment, and one was 20 a contract that was a contract for a separate party from 21 Stampede. 22 So my understanding, and again the RNC would know 23 better, but my understanding is we don't actually have the 24 contract between the Trump campaign and Stampede right now. 25 Because we --

22 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 22 of 49 PageID: THE COURT: Okay. I got you. 2 Because this is the September Group. This is the 3 agreement between the September Group and the Trump 4 campaign? 5 MR. KAUL: That's my understanding. This is just 6 based on the RNC's filing. So they can be more helpful on 7 that then I can. We haven't done any discovery on that 8 though. 9 THE COURT: Okay. Let me ask the RNC. 10 Let's start with that first question. There is a 11 reference in the to an assignment between -- involving 12 Stampede and the Trump campaign to the RNC. The attachment 13 referred to the September Group, LLC; a Wyoming limited 14 liability corporation. Is there another document that has 15 Stampede as opposed to the September Group, LLC? 16 MR. LELAND: Your Honor, this is Matt Leland. 17 That is correct. 18 This is a September Group contract that I believe 19 the RNC did eventually sign. I believe, we have produced 20 that too, although I can't be certain. 21 The September Group contract is really, just as you 22 pointed out, for voter canvassing. It has nothing to do 23 with ballot security or even poll monitoring. 24 I don't believe, Your Honor, that I have seen a 25 draft of a Trump campaign-stampede contract. But in any

23 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 23 of 49 PageID: event, we have produced the contracts that Stampede actually 2 executed with the RNC, and none of them involve work in 3 Nevada. And that is verified in the declarations from last 4 fall from Holly Turner, who is, I understand to be the Chief 5 Financial Officer of Stampede, as well as John Phillipi, the 6 Chief Counsel of the RNC. 7 THE COURT: Okay. 8 But just so I'm clear, Mr. Leland, the RNC's 9 position is based on your review of the documents, this 10 notwithstanding, which discusses a potential 11 assignment, that to the extent there either was an actual 12 assignment from the Trump campaign to the RNC, or 13 independently, there were agreements between the RNC and 14 Stampede in the first instance, they have been produced? 15 MR. LELAND: If there were copies of contracts 16 between the Trump campaign and the -- and the Stampede 17 entity, and they're within our production, and they were 18 responsive to terms that it should have been produced or 19 logged, if they were at all privileged, I don't recall Your 20 Honor seeing copies of those contracts. 21 THE COURT: Okay. 22 MR. LELAND: I do know that we have produced our the RNC's contracts with Stampede and none of them involves 24 work in Nevada. 25 THE COURT: Okay.

24 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 24 of 49 PageID: MR. LELAND: As I recall, the only contract was for 2 work done in Florida, again, for voter canvassing. 3 THE COURT: Okay. All right. 4 And what's your view on these documents 5 substantively, Mr. Leland? What's -- and for the purposes 6 of the record I'm referring to the documents to Exhibit 4 in 7 the DNC's submission to the Court. 8 MR. LELAND: In our opinion, Your Honor, they don't 9 form a basis for additional discovery regarding Stampede. I 10 think there's been a pretty voluminous record that's been 11 provided with -- on RNC's work with Stampede. And again, 12 its isolated to Florida. 13 Whether there was some deliberation or discussion 14 at some point about the RNC taking out a contract with 15 Stampede in Nevada is irrelevant. It never happened. We 16 don't have any record of it. 17 What the DNC seems to be suggesting is just because 18 there may have been some discussion, which is not even clear 19 from the face of this document, Your Honor, we have an 20 unsigned draft contract assignment with really nothing more, 21 and certainly nothing indicating that there's ballot 22 security or even poll monitoring activities involved. 23 But the suggestion seems to be from the DNC that 24 this one document provides some sort of a platform for us to 25 dig into additional discovery regarding Stampede, a

25 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 25 of 49 PageID: deposition of Stampede, as well as the poll monitors that 2 were identified from last fall. 3 So again, there's no reasonable basis we see here 4 for additional discovery on the Stampede issue. 5 THE COURT: Okay. 6 And let me go back -- 7 MR. LELAND: Then again -- 8 THE COURT: -- and DNC can respond, but also can 9 address, because they also wanted the other depositions as 10 well. 11 So the DNC MR. LELAND: Would you like me to address those 13 now, Your Honor, or would you THE COURT: Sure. You can give me your view and 15 then I'll hear from the DNC. 16 MR. LELAND: Well, the ball has not been advanced 17 for any additional discovery on the alleged poll watchers 18 from last fall. 19 As Your Honor pointed out in January, we were going 20 to see what the documents provided before any depositions of 21 these individuals took place. We haven't seen any 22 additional evidence that indeed any of these folks were 23 working for the RNC. 24 In fact, the evidence has now shown that some of 25 these individuals were actually employed by the Democrat

26 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 26 of 49 PageID: Party in the State of Nevada. 2 So we haven't seen any documents indicating that 3 these individuals were operating under the direction or the 4 control of the RNC. 5 So based on the record that we have from last fall, 6 which clearly was not enough to point to a violation, we see 7 the Stampede issue as basically closed. 8 THE COURT: Okay. 9 And the DNC's view? 10 MR. KAUL: Your Honor, first of all, with respect 11 to the document itself, you know, the document is not alone 12 in isolation in this case. It's in the context of Nevada, 13 where we've had some documentary evidence, as Your Honor 14 found at the P-I stage, we presented credible evidence that 15 the RNC was engaging in poll observations in Nevada, and it 16 appears that subterfuge was involved. 17 And now we add to that that the RNC was 18 contemplating taking on a contract assignment from the Trump 19 campaign in Nevada with Stampede. We don't know what's in 20 that contract or what the RNC was contemplating, or why it 21 was contemplating taking that on. 22 And, you know, it's true that we've got a 23 declaration from Miss Turner, but this is again the same 24 point we've been talking about. That hasn't been tested in 25 anyway in this case. And so to draw conclusions from it I

27 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 27 of 49 PageID: think is premature, absent even depositions of the people 2 who we know were at the polls, and we know were monitoring. 3 And we just haven't been able to ask them a question yet of 4 what they were looking for, whether they were there for 5 Henry purposes, why they believe they were working for the 6 RNC, that sort of thing. So we think depositions here are 7 entirely appropriate. 8 THE COURT: Okay. 9 Mr. Priebus, is the RNC correct that outside of 10 what the Court was already aware of, prior to the election, 11 that there is no additional evidence submitted by the RNC? 12 I'm happy to take judicial notice that obviously 13 Mr. Priebus became Chief of Staff. He is no longer Chief of 14 Staff, replaced by Mr. Kelly. But as to the coordination 15 between the RNC and the Trump campaign before the election 16 as to ballot security measures, is there any new evidence in 17 that regard? 18 MR. LELAND: From the RNC -- go ahead. I'm sorry. 19 MR. KAUL: There MR. LELAND: I'm sorry, Your Honor, was that 21 directed to the RNC or DNC? 22 MR. KAUL: The DNC. 23 I've read the RNC's position, essentially, Judge 24 it's the same information you had when you made the 25 decision. I just wanted to see if I missed anything in that

28 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 28 of 49 PageID: regard. 2 MR. KAUL: Your Honor, that -- you're correct. You 3 may recall we discussed at the hearings just before the P-I 4 ruling, you know, we think that Mr. Priebus knew, says he 5 knows where Donald Trump's head is on these issues, that 6 they must have had some conversation about it. And in which 7 the RNC, we think it could be inferred, and the -- I know 8 the Court found otherwise, the evidence wasn't strong 9 enough, but we think it could be inferred that he was 10 advising him on voter fraud efforts, anti-voter fraud 11 efforts and poll monitoring efforts, which in and of itself 12 would be a violation. 13 So we think that deposing him to ask him what they 14 discussed, and we obviously are happy to limit the scope of 15 the deposition to whatever topics are directly relevant to 16 that. But we think a deposition is appropriate. 17 THE COURT: RNC's view? 18 MR. LELAND: We disagree, Your Honor. 19 Obviously, there hasn't been any documentary 20 evidence that the DNC can point to to show that there was 21 some sort of coordination with the Trump campaign on ballot 22 security. 23 They're relying on a quote about recount activity 24 from a Face the Nation interview from around the time of the 25 election.

29 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 29 of 49 PageID: So given the process that Your Honor has laid out 2 for discovery, and as you commented back in January, let's 3 see what the documents show. There is -- there is really no 4 evidence warranting additional discovery in the form of, 5 especially a deposition of Mr. Priebus. 6 THE COURT: Okay. 7 Now, the last issue is the recount memorandum. 8 Couple questions I have for the DNC. I know you 9 just wanted interrogatories on this. Here's my issue with 10 the request. 11 First, it deals with the recount. And it -- well, 12 it deals with absent -- the integrity of absentee ballots 13 and provisional ballots. And in the first instance, you 14 know, when Judge Debevoise clarified later on, I thought he 15 made clear that the consent decree's concerned with 16 in-person voter fraud intimidation efforts. And seemed to 17 clearly say, this is not directed at absentee ballots. 18 So my first question is, is this even activity 19 contemplated by the consent decree? And then, second of 20 all, do you have any proof that this activity even occurred? 21 I mean this seemed to be a provisional document. 22 If this happens, you know, then you're supposed to do the 23 following. If this happens, then you're supposed to do the 24 following. And also seemed to make clear that, you know, 25 where necessary, and the other side is going to be able to

30 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 30 of 49 PageID: have two people present, we're going to have two people 2 present, you know, this is how they're supposed to count the 3 ballots, this is how they're supposed to store the ballots, 4 this is how soon they're supposed to submit the ballots, if 5 there is a recount necessary, this is how we secure the 6 machines, we may need a court order and so forth. 7 So I have a two tiered question for the DNC. 8 First of all, is this memorandum even directed 9 toward activity by the consent decree? Because I thought 10 Judge Debevoise made it clear it wasn't absentee ballots or 11 provisional ballot -- well, I guess provisional ballots 12 could be. And then, second of all, do you have any evidence 13 that this actually occurred, other than preparing for what 14 might happen? 15 MR. KAUL: So, Your Honor, if you have the document 16 Exhibit 5 in front of you. 17 THE COURT: I do. 18 MR. KAUL: So if you go to page -- it's the third well, internal page 2 of the document. 20 THE COURT: Hhmm-hmm. 21 MR. KAUL: So the third page from kind of the 22 exhibit cover sheet. 23 THE COURT: Right. 24 MR. KAUL: Which refers to election day. 25 THE COURT: Right.

31 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 31 of 49 PageID: MR. KAUL: Under the second bullet -- I'm sorry, I 2 mean the first bullet. It talks about the number of polling 3 places in counties, and it says, we've identifed 12 counties 4 as high risk. And then the next bullet talks about our poll 5 watchers are to be at the covered polling places. 6 So it's clearly identifying, we think, potential 7 ballot security activities, at the very least poll watching 8 activity which the RNC says it's not engaged in. And this 9 is a template for, presumably, for states around the 10 country. And it's clear from these s that the states 11 were trying to prepare these and put them into place with a 12 template prepared by the RNC. Because they were absolutely 13 asking for help getting this ready. 14 So, you know, the -- our view is that the RNC 15 doesn't get to design a poll monitoring process or template 16 and send it out to the states and have them call it their 17 effort and get to avoid liability under the consent decree 18 that way. 19 We don't know what happens at the state level based 20 on these templates or who filled out these templates, but 21 that's because we haven't had any discovery into it. 22 MR. GENOVA: Judge, Angelo here, if you would 23 indulge me to just supplement Mr. Kaul's comments. 24 THE COURT: Sure. 25 MR. GENOVA: You asked a question as to whether

32 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 32 of 49 PageID: this kind of thing is contemplated by the consent order. 2 There is a provision in the original consent order 3 at Section 2 E, which talks about refraining from 4 undertaking any ballot security activities in polling 5 places. 6 Now, I know at least in New Jersey, and I think 7 this is true throughout the country, that the location of 8 the counting of absentee ballots for instance at the board 9 of elections is considered a polling place under most state 10 election laws. 11 The methodology employed in the selection of which 12 counties are high risk, which are medium risk, as reflected 13 in this memo, we don't really know what "risk" means, and 14 how that process is undertaken could have implications under 15 2 E of the consent order. Because that provision talks 16 about how that selection process for the undertaking of 17 ballot security measures, what proportion, the 18 proportionality between those choices and the concentration 19 of minority voters. So THE COURT: Yes. 21 But Mr. Genova, that overlooks what was later said 22 by Judge Debevoise, and I'm going to paraphrase, but he 23 essentially said, absentee ballot fraud was not readily 24 addressable by pre-election remedies due to the inability to 25 personally observe the voters casting their absentee ballot,

33 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 33 of 49 PageID: and that the consent decree did not prevent the RNC from 2 reporting suspected cases to the appropriate election 3 officials. 4 So later on Judge Debevoise seemed to address the 5 issue of absentee ballot fraud head-on. And essentially 6 said, first, that's not what I'm contemplating by the 7 consent decree, and if the RNC thinks there's impropriety in 8 the absentee ballots, then they can report it as they deem 9 appropriate. 10 MR. GENOVA: And, Judge, I'm not disaverring that. 11 I'm maybe mixing apples and oranges unintentionally. 12 I don't -- I'm not reading this section that was 13 cited by Mr. Kaul in the memo as being specific to absentee 14 ballots. 15 I'm pointing out that to the extent that there is a 16 selection process underway or comtemplated by that template, 17 it has implications under 2 E, given how those choices are 18 made, where to identify poll watchers or otherwise. 19 THE COURT: Okay. 20 So the RNC, you've heard the DNC's view as to this 21 provision in the memorandum, page 2 of this actual 22 memorandum, page 3 of the exhibit when you include the page, 23 the Exhibit 5 for the record. 24 And you know, the concern is when you point to counties as high risk, an additional ten as medium risk,

34 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 34 of 49 PageID: that can be reasonably inferred as addressing potential 2 ballot security efforts. 3 MR. LELAND: Your Honor, I would first point out 4 that this one is a Trump campaign document, not an RNC 5 document. 6 Two, the only reference in here is to poll 7 watching. And that's not a violation of the consent decree. 8 Three, the terms "high risk" and "medium risk," 9 that requires a lot of speculation as to whether or not that 10 actually triggers some sort of ballot security activity. 11 I do not read it that way. I'm not sure exactly how it 12 would be implicating a ballot security activity. But 13 there's certainly nothing else in this memorandum that I can 14 see that indicates that the RNC, or even the Trump campaign, 15 is going to be working to prevent what they suspect would be 16 voter fraud at the polls. 17 And lastly, I would say regarding the consent 18 decree itself, we agree that it does not apply to activities 19 such as absentee ballot counting, and certainly not recount 20 activities. 21 And I look at the 2009 amendment where it defines 22 ballot security as a program that's aimed at combatting 23 voter fraud, like preventing potential voters from either 24 registering to vote or casting their ballot. In the case of 25 an absentee ballot that vote has been cast.

35 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 35 of 49 PageID: So we view this memorandum as irrelevant and 2 certainly not a basis for additional discovery. 3 THE COURT: Okay. 4 Let me address the issues that have been raised. 5 As we've indicated, the consent decree, which is 6 the basis of this lawsuit, was entered in 1982, was modified 7 in 1987, and then again in Originally, before the election, the DNC made a 9 motion for injunctive relief and contempt. I did deny the 10 requested relief, but I did indicate that depending upon 11 what -- well, first, what had already been shown and then 12 what may come up during the election cycle itself could be 13 shown afterwards, discovery could be appropriate. 14 And then following the election, based on the 15 information presented, there were disputes over the scope of 16 discovery, I ruled on those disputes. But I did permit 17 discovery. 18 And I know that -- because I keep going back to the 19 opinions, I know Judge Debevoise lived with this case for 20 decades. Or I should say the consent decree for decades. 21 And unfortunately for the parties, I did not. Because I 22 just don't have that institutional knowledge. 23 But what I do have is the ability to go back and 24 read everything available from the prior cases. And what I 25 turned to was what was the most recent discussion, even the

36 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 36 of 49 PageID: one that went up to the Third Circuit. And of course, this 2 comes from the 2008 attempt by the DNC -- DNC brought the 3 enforcement action concerning New Mexico, and then the court 4 rejected the challenge, but thereafter the RNC moved to 5 vacate or modify the consent decree. And that had a full 6 evidentiary hearing before Judge Debevoise, and then Judge 7 Debevoise made certain findings and did modify the consent 8 decree. 9 Because I've already noted that at the time, the 10 way I read Judge Debevoise's opinion, is that he did not 11 envision the consent decree to address absentee ballot 12 fraud. And he said it's just for the practical reason is 13 that you're not going to be able to witness a person when 14 they actually cast their absentee ballots. So as a result, 15 he had ruled that the consent decree did not prevent the RNC 16 from reporting suspected cases to the appropriate election 17 officials. 18 What Judge Debevoise did emphasize is in-person 19 fraud, which he noted is extremely rare. And I believe he 20 cited to the Indiana Supreme Court case, where even though 21 the justices were strongly divided, they all agreed that 22 neither side could point to one instance of voter -- of 23 in-person voter fraud in Indiana's history. And that was 24 just to underscore how extremely rare in-person voter fraud 25 is.

37 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 37 of 49 PageID: And as a result, Judge Debevoise said, in the 2 balance, the threat of voter -- and I'm paraphrasing, the 3 threat of voter intimidation posed a far greater and real 4 threat to disenfranchising legitimate voters when compared 5 to in-person fraud. 6 He then made the definitions -- well, he revised 7 the definitions as to what was permitted and prohibited. He 8 defined ballot security as any program aimed at combatting 9 voter fraud by preventing potential voters from registering 10 to vote or casting a ballot. 11 He then gave examples that were not exhaustive, and 12 it was challenge lists by use of a mailing, or reviewing 13 databases maintained by state agencies, such as the motor 14 vehicle records, Social Security records, change of address 15 forms, voter lists assembled pursuant to the HAVA, the Help 16 America Vote Act of 2002, and so forth. So he gave -- oh, 17 and the use of challengers to confront potential voters and 18 verify their eligibility at the polls on either election day 19 or a day in which they may take advantage of early voting. 20 Similarly, he pointed out recording by photographic 21 or other means of voter likenesses or vehicles at any 22 polling place, and the distribution of literature informing 23 individuals at or near a polling place that voter fraud is a 24 crime, or detailing the penalties under any state or federal 25 statute for impermissibly casting a ballot.

38 Case 2:81-cv JMV-JBC Document 218 Filed 04/27/18 Page 38 of 49 PageID: What was permitted was normal poll watching 2 functions. And that, I'm going to again in part said, 3 stationing individuals at polling stations to observe the 4 voting process and report irregularities unrelated to voter 5 fraud to duly appointed state officials. They were 6 permitted to report any disturbance that they reasonably 7 believe might deter eligible voters from casting their 8 ballots, including malfunctioning voting machines, long 9 lines, or understaffing at the polling places. But they 10 were not allowed to question voters about their credentials, 11 impede or delay voters by asking for identification, 12 videotape, photograph, or otherwise make visual records of 13 voters or their vehicle, or issue anything outlining the 14 fact that voter fraud is a crime or detailing the penalties 15 under any state or federal statute for impermissibly casting 16 a ballot. 17 The Third Circuit, when they took it up on appeal, 18 in Judge Greenaway's opinion, observed that the central 19 purpose of the consent decree was to prevent the 20 intimidation and suppression of minority voters. 21 Now, we turn to the facts in this case. As of, 22 according to the RNC, as of August 21st they've reviewed custodians, over 24,500 documents, comprising of over 5, pages of documents, and they have produced 641 documents 25 comprised of over 13,000 pages.