Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 1 of 15 PageID #: No. 11 Civ (RR) (GEL) (DLI)

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1 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 1 of 15 PageID #: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X MARK A. FAVORS et al., Plaintiffs, No. 11 Civ (RR) (GEL) (DLI) v. ANDREW M. CUOMO et al., Defendants X REPLY BRIEF IN FURTHER SUPPORT OF THE SENATE DEMOCRATS MOTION TO COMPEL REGARDING PRODUCTION FORMAT, RELEVANT PERIOD, ATTORNEY-CLIENT, AND WORK PRODUCT PRIVILEGE ISSUES CUTI HECKER WANG LLP 305 Broadway, Suite 607 New York, New York (212) Jeffrey M. Wice P.O. Box Washington, D.C (202) Attorneys for the Senate Democrats

2 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 2 of 15 PageID #: TABLE OF CONTENTS I. THE SENATE REPUBLICANS SHOULD BE COMPELLED TO PRODUCE DOCUMENTS IN SEARCHABLE PDF FORMAT OR TO PROVIDE THE OTHER PARTIES WITH ACCESS TO ALPHALIT S E-DIRECT 3.0 SYSTEM... 1 II. THE SENATE REPUBLICANS SHOULD BE COMPELLED TO SEARCH FOR AND PRODUCE RELEVANT DOCUMENTS THAT WERE CREATED AFTER THE SENATE PLAN WAS ENACTED... 3 III. THIS COURT SHOULD REVIEW THE VALIDITY OF DEFENDANTS DUBIOUS ATTORNEY-CLIENT PRIVILEGE ASSERTIONS AND COMPEL THE PRODUCTION OF NON-PRIVILEGED DOCUMENTS... 6 IV. THIS COURT SHOULD REVIEW THE VALIDITY OF DEFENDANTS DUBIOUS WORK PRODUCT PRIVILEGE ASSERTIONS AND COMPEL THE PRODUCTION OF NON-PRIVILEGED DOCUMENTS... 9 CONCLUSION... 1 i

3 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 3 of 15 PageID #: TABLE OF AUTHORITIES CASES Baldus v. Members of Wisconsin Gov t Accountability Bd., Nos. 11 CV 562, 11-CV-1011 JPS DPW RMD, 2013 WL (E.D. Wisc. Feb. 25, 2013)... 3 Cuno, Inc. v. Pall Corp., 121 F.R.D. 198 (E.D.N.Y. 1988)... 7, 8 Fed. Hous. Fin. Agency v. UBS Americas Inc., 2013 WL (S.D.N.Y. Apr. 16, 2013)... 7, 8 First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968)... 3 Genon Mid-Atl., LLC v. Stone & Webster, Inc., 2011 WL (S.D.N.Y. June 6, 2011) Grossman v. Schwarz, 125 F.R.D. 376 (S.D.N.Y. 1989)... 9 Hickman v. Taylor, 329 U.S. 495 (1947) In re County of Erie, 473 F.3d 413 (2d Cir. 2007)... 6, 7, 8 In re Fosamax Products Liability Litigation, 2008 WL (S.D.N.Y. June 5, 2008)... 5 In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000) In re Rivastigmine Patent Litig., 237 F.R.D. 69 (S.D.N.Y. 2006) (Francis, M.J.)... 8 Jacob v. Duane Reade, Inc., 2012 WL (S.D.N.Y. Feb. 28, 2012) (Katz, M.J.)... 7, 8 Midland Inv. Co. v. Van Alstyne, Noel & Co., 59 F.R.D. 134 (S.D.N.Y. 1973)... 3 Miller v. Johnson, 515 U.S. 900 (1995)... 4 Mobil Oil Corp. v. Dep t of Energy, 102 F.R.D. 1 (N.D.N.Y.1983)... 7 ii

4 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 4 of 15 PageID #: National Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Cos., 265 F.3d 97 (2d Cir. 2001)... 5 Payless Shoesource, Inc. v Canal Street, 1996 WL (S.D.N.Y. Apr. 17, 1996)... 9 S.E.C. v. Nadel, 2012 WL (E.D.N.Y. Apr. 16, 2012) Shaw v. Reno, 509 U.S. 630 (1993)... 4 Spread Enterprises, Inc. v. First Data Merch. Servs. Corp., 2013 WL (E.D.N.Y. Feb. 19, 2013) (Boyle, M.J.)... 7, 8 Torres v. Toback, Bernstein & Reiss LLP, 278 F.R.D. 321 (E.D.N.Y. 2012) (Pohorelsky, M.J.)... 7, 8 United States v. Adlman, 134 F. 3d 1194 (2d Cir. 1998)... 9 United States v. Jacques Dessange, Inc., 2000 WL (S.D.N.Y. Mar. 27, 2000) United States v. Zolin, 491 U.S. 554 (1989)... 9 OTHER AUTHORITIES 8 Fed. Prac. & Proc. Civ (3d ed.) B Fed. Prac. & Proc. Civ (3d ed.)... 1 iii

5 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 5 of 15 PageID #: I. THE SENATE REPUBLICANS SHOULD BE COMPELLED TO PRODUCE DOCUMENTS IN SEARCHABLE PDF FORMAT OR TO PROVIDE THE OTHER PARTIES WITH ACCESS TO ALPHALIT S E-DIRECT 3.0 SYSTEM The question here is not whether TIFF format plus metadata is reasonably usable when both sides have access to the necessary software. The question is whether the Senate Republicans should bear the cost of rendering their production reasonably usable given that we do not have the financial means to access AlphaLit or the other low-priced document review platforms (Concordance and Summation) they have identified. Eck Decl. [Dkt. No. 591], 9. Not surprisingly, the Senate Republicans ignore the express language of the Advisory Committee Notes addressing this very situation: Under some circumstances, the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information. Fed. R. Civ. P. 34 (2006 Advisory Committee notes). The suggestions made in the Eck Declaration would cost thousands of dollars, which is prohibitively expensive both for the Senate Democrats (who have no budget to acquire software) and for this small law firm (whose $210, engagement fee has been blocked by the Senate Republicans), and/or would impose severe administrative burdens. Hecker Reply Decl Because the Senate Republicans did not provide the notice in their discovery responses that Rule 34(b)(2)(B) requires, and because it is undisputed that their desired format is not reasonably usable absent at least a multi-thousanddollar outlay and/our at least dozens of hours of administrative work, and given the disparity of the parties resources, and given the express language of the Advisory Committee Notes, it is incumbent on them, not us, to provide the technical support (in the form of supplying the required software or performing the PDF conversions themselves) necessary to render their production reasonably usable. See 8B Fed. Prac. & Proc. Civ (3d ed.) ( [T]he 1

6 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 6 of 15 PageID #: responding party may need to provide technical support to assist the receiving party in using the information. ) 1 The Senate Republicans argument that we had clear notice and did not object to their initial production or to their in camera submission, Opp. at 5 & n.2, has it backwards. Rule 34(b)(2)(B) provides that it was their obligation, not ours, to specify a production format in their discovery responses; having failed to do that, they r[an] the risk that the requesting party can show that the produced form is not reasonably usable. Fed. R. Civ. P. 34 (2006 Advisory Committee notes). Their initial production provided us with notice of nothing because it contained only publicly available documents to which we already had access. And as discussed in our opening brief, we were not invited to participate in the Court s bilateral discussions with the Senate Republicans in August 2012 about the format of their in camera submission, and at the time it was not clear whether there would be any production to the parties at all, let alone how many pages would be ordered produced, let alone what the appropriate format would be. The cost of acquiring access to AlphaLit or purchasing licenses for Concordance or Summation would be minor for the Senate Republicans but prohibitive for us. The administrative burden of converting the TIFF files into searchable PDF files would be very significant and, depending on the volume of documents that ultimately is ordered produced, could take us weeks. Hecker Reply Decl The Advisory Committee Notes make clear that because the documents at issue are searchable in their native format, the Senate Republicans either must produce them in native format or provide us with the technical assistance necessary to render their production reasonably usable. Finally, because the Senate Republicans have not cross-moved, we need not and decline to respond to their supposed criticisms of the formatting of our extensive document productions. 1 None of the cases cited by the Senate Republicans in footnote 1 of their brief are relevant because none of them considered the cost-bearing issue presented here. 2

7 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 7 of 15 PageID #: II. THE SENATE REPUBLICANS SHOULD BE COMPELLED TO SEARCH FOR AND PRODUCE RELEVANT DOCUMENTS THAT WERE CREATED AFTER THE SENATE PLAN WAS ENACTED The Senate Republicans insistence that post-enactment documents are categorically irrelevant cannot be squared with settled law. See, e.g., First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, (1968) ( In a proper case, of course, a party might well have the right to demand discovery of documents from an opposing party dealing with activities during a period outside that covered by the subject matter of the lawsuit in order to provide some indication of the ramifications of the actions forming the basis of the complaint. ); Midland Inv. Co. v. Van Alstyne, Noel & Co., 59 F.R.D. 134, (S.D.N.Y. 1973) ( Merely because the document is dated after the last act complained of, however, does not make it immune from discovery if it relates to relevant discoverable information. ); Baldus v. Members of Wisconsin Gov t Accountability Bd., Nos. 11 CV 562, 11-CV-1011 JPS DPW RMD, 2013 WL , at *2 (E.D. Wis. Feb. 25, 2013) ( [I]t is entirely logical to believe that s and other materials circulated after the passage of Acts 43 and 44 could relate to the objectives or motives of the legislators and others involved in the passage of those Acts. ). 2 Instead of acknowledging this common-sense rule, the Senate Republicans re-assert that post-enactment documents (and even pre-enactment documents) are not discoverable because subjective intent is irrelevant to the honest and good faith effort test. Opp. at But this Court already rejected that strained argument. February 8, 2013 Order [Dkt. No. 559] at 27, 33. Unless and until the District Court holds otherwise, evidence of subjective intent, including postenactment evidence, is discoverable. The Senate Republicans exaggerate the alleged burden that collection, review, and privilege analysis of post-enactment discovery will impose. Opp. at 13. As we emphasized in 2 The Senate Republicans attempt to distinguish Baldus, Opp. at 12 n.9, is inscrutable. Baldus squarely held that post-enactment documents were discoverable. 3

8 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 8 of 15 PageID #: our motion, we merely are asking them to confer with each relevant custodian and inquire whether each custodian may have created relevant, non-privileged, post-enactment documents. Motion at 11. If the custodians report that there are no such documents that they did not send a single relating to the population deviations in the Senate Plan after it was enacted then this issue will be laid to rest in short order. But if the custodians indicate that they may have created relevant post-enactment documents, then it is the Senate Republicans obligation to collect, review, and potentially assert privileges with respect to such documents. The fact that document discovery necessarily imposes burdens is not an excuse for refusing to search for relevant documents. 3 Nor is it unduly speculative to suggest that relevant post-enactment documents likely exist. Contrary to the Senate Republicans assertion, the post-enactment preclearance proceedings before the Department of Justice went well beyond an inquiry into racially discriminatory purpose, Opp. at 11, and actually included an inquiry into whether the addition of a 63rd Senate District and/or the worsened regional malapportionment had a retrogressive effect on minority voters. Hecker Reply Decl., Ex. 1. Because there was a real possibility in April and May of 2012 that the Senate Plan would be rejected either by the Department of Justice or the New York Court of Appeals in Cohen, and because the nominating petition deadline was fast approaching, it hardly stretches the imagination to suppose that the drafters of the Senate Plan may have created a contingency plan or at least discussed the political 3 The Senate Republicans mischaracterize the holding in Miller v. Johnson, 515 U.S. 900 (1995). Miller did not hold that courts must be sensitive not to overburden legislatures with discovery into [subjective] intent. Opp. at 12 (quoting Miller). Rather, Miller articulated the standard that applies in evaluating racial gerrymandering claims pursuant to Shaw v. Reno, 509 U.S. 630 (1993), and in that context, Miller cautioned that courts must be sensitive, when adjudicating the legal sufficiency of a complaint alleging racial gerrymandering, to the difference between being aware of racial considerations and being motivated by them. Miller, 515 U.S. at Miller said nothing about overburden[ing] legislatures with discovery into intent. Opp. at 12. 4

9 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 9 of 15 PageID #: ramifications of lower-deviation alternatives. And when Senator Tkaczyk and Assemblyman Amedore became involved in a recount over the newly-created 63rd Senate seat in November and December of 2012, documents may have been created relating to the partisan motivation for increasing the size of the Senate. These are but a few examples of ways in which post-enactment documents could demonstrate pre-enactment intent. The fact that the Senate Republicans have refused even to search for responsive post-enactment documents means that, by definition, one can only speculate about what might exist. But that does not mean that post-enactment documents are categorically beyond the reach of discovery. See In re Fosamax Products Liability Litigation, 2008 WL , at *9 (S.D.N.Y. June 5, 2008) ( Although some of these scenarios may be speculative, the requested documents are relevant and discoverable under Rule 26(b)(1). That is the nature of discovery in American Federal civil litigation. ). 4 Finally, there is no basis for the Senate Republicans claim that this motion comes too late. Opp. at 13 n.7. We flagged this issue in our meet and confer discussions with their counsel last fall, indicating that we would be moving to compel if and when their legislative privilege motion was denied (because, obviously, it would make no sense to fight about the relevance of post-enactment documents if they are protected by legislative privilege in any event). Counsel for the Senate Republicans did not disagree with this approach. We then formally raised the post-enactment discovery issue in writing on February 4, 2013, shortly after the Court indicated during the January 31, 2013 conference that the Senate Republicans motion for a protective order would be denied at least in part. The Senate Republicans decided unilaterally not to search for post-enactment documents last summer. They have known all 4 The Senate Republicans reliance on National Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Cos., 265 F.3d 97 (2d Cir. 2001), is misplaced because that case involved a party s belated request, after the discovery cutoff, and after the other party had moved for summary judgment, for additional discovery pursuant to Rule 56(d) (former Rule 56(f)). This motion is governed by the liberal standard set forth in Rule 26(b)(1), not the considerably less forgiving standard set forth in Rule 56(d). 5

10 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 10 of 15 PageID #: along that this is a serious issue. They still have not produced a single non-public document, discovery is nowhere near complete, and they cannot articulate any prejudice that they have suffered other than that they now must devote resources to gathering documents that they should have gathered all at once, and therefore more efficiently long ago. III. THIS COURT SHOULD REVIEW THE VALIDITY OF DEFENDANTS DUBIOUS ATTORNEY-CLIENT PRIVILEGE ASSERTIONS AND COMPEL THE PRODUCTION OF NON-PRIVILEGED DOCUMENTS The Senate Republicans rely heavily on In re County of Erie, 473 F.3d 413 (2d Cir. 2007), but Erie does not support their position for several reasons. First, Erie reaffirmed that the attorney-client privilege must be construed narrowly because it renders relevant information undiscoverable, that when the privilege is asserted by the government, non-disclosure impinges on open and accessible government, and that the Senate Republicans bear [t]he burden of establishing the applicability of the privilege. Id. at Thus, the question is not, as the Senate Republicans attempt to frame it, whether our concerns with their privilege assertions rest on speculation. Opp. at 14. The question is whether they have met their burden of proving that their assertions are in fact valid. Second, Erie made clear that documents are not privileged unless the predominant purpose was to seek or render legal advice. Id. at 420. Although the privilege is not waived merely because specific legal advice is accompanied by additional commentary laying out its ramifications, the predominant purpose of a communication must be advice that can be rendered only by consulting with legal authorities. Id. at To the extent the communication primarily involves advice that can be given by a non-lawyer, the privilege does not apply because [w]hen an attorney is consulted in a capacity other than as a lawyer, as (for example) a policy advisor [or] media expert, that consultation is not privileged. Id. at 421. The Senate Republicans have made no effort to meet their burden by explaining how and why 6

11 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 11 of 15 PageID #: each communication at issue was predominantly giving or seeking advice that only could be rendered by an attorney. Applying Erie, courts routinely review documents in camera and make document-bydocument determinations regarding whether the proponent has met its burden of demonstrating that the communications predominantly contained advice that can be rendered only by consulting with legal authorities. See, e.g., Spread Enterprises, Inc. v. First Data Merch. Servs. Corp., 2013 WL (E.D.N.Y. Feb. 19, 2013) (Boyle, M.J.) (directing production of documents sent or copied to an attorney because the mere fact that a communication is made directly to an attorney, or an attorney is copied on a memorandum, does not mean that the communication is necessarily privileged ); Jacob v. Duane Reade, Inc., 2012 WL (S.D.N.Y. Feb. 28, 2012) (Katz, M.J.) (directing production of a portion of an attorney-client communication that reflected business strategy rather than legal advice); Torres v. Toback, Bernstein & Reiss LLP, 278 F.R.D. 321, 323 (E.D.N.Y. 2012) (Pohorelsky, M.J.) ( Since the letters reveal no confidential communications from a client to a lawyer for the purpose of obtaining legal advice, they are not protected by the attorney-client privilege. ); see also Fed. Hous. Fin. Agency v. UBS Americas Inc., 2013 WL (S.D.N.Y. Apr. 16, 2013) ( The Second Circuit in Erie did not purport to abrogate the Supreme Court s longstanding rule that the privilege extends only to communications and not to facts. ). 5 Citing Cuno, Inc. v. Pall Corp., 121 F.R.D. 198 (E.D.N.Y. 1988), the Senate Republicans assert that the request for legal advice need not be within the four corners of the document. Opp. at 16. That generally is true. But Cuno was a patent case in which the question was whether technical information exchanged between the attorney and client was primarily for the 5 Erie also cited approvingly to Mobil Oil Corp. v. Dep t of Energy, 102 F.R.D. 1 (N.D.N.Y.1983), in which the government failed to meet its burden of proving that the privilege applied because it was impossible to determine whether certain factual memoranda were sent to government lawyers primarily for the purpose of securing legal assistance. Id. at 10. 7

12 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 12 of 15 PageID #: purpose of rendering legal advice, and the attorneys and their client all submitted uncontroverted affidavits explaining in detail why the technical information in each communication was directly related to legal advice. Id. at 202. Noting that [t]he domain of the patent lawyer is a highly technical one, the Court upheld the privilege because the sworn testimony proved that whether a patent is valid necessarily requires an analysis of the technical aspects of the invention. Id. Unlike in Cuno, the Senate Republicans have not offered a shred of evidence in the form of sworn affidavits or otherwise even attempting to meet their burden of demonstrating why documents that do not contain legal advice are directly related to, or inextricably intertwined with, the seeking or rendering of specific legal advice. Mr. Lewis s January 11, 2013 Declaration [Dkt. No ] does not even purport to speak to this issue. With respect to communications that were not sent to or by an attorney, the parties agree that this does not necessarily mean that the communication is not privileged. But it is settled law that a document will not become privileged simply because an attorney recommended its preparation if it contains merely business-related or technical communications between nonattorneys. In re Rivastigmine Patent Litig., 237 F.R.D. 69, 80 (S.D.N.Y. 2006) (Francis, M.J.). Here, once again, the Senate Republicans have not offered any evidence in the form of affidavits or otherwise supporting their claim, and meeting their burden of proving, that the non-attorney communications that we have identified are somehow privileged. Finally, the Senate Republicans are wrong that no basis exists for this Court to conduct another in camera review here. Opp. at That is what the Magistrate Judge and District Court both did in Erie. It is what the courts did in Spread Enterprises, Jacob, Torres, Fed. Hous. Fin. Agency, and Cuno. It is what courts invariably do where, as here, a party claims attorneyclient privilege, the non-asserting party argues that the communications at issue were in whole or part not primarily for the purpose of seeking legal advice, and there is no way to determine the validity of the privilege assertions without analyzing the communications at issue. An in camera 8

13 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 13 of 15 PageID #: review is particularly warranted here because the Senate Republicans have provided no meaningful information (either in their privilege log or in any declarations) with respect to the nature of the legal advice that supposedly was conveyed in the communications at issue, and because they acknowledge that they err on the side of asserting privilege and will not willingly turn over any documents unless it is quite clear that they must do so. Dkt. No. 565, at 17 n.5. 6 IV. THIS COURT SHOULD REVIEW THE VALIDITY OF DEFENDANTS DUBIOUS WORK PRODUCT PRIVILEGE ASSERTIONS AND COMPEL THE PRODUCTION OF NON-PRIVILEGED DOCUMENTS The Senate Republicans reference to so-called dual purpose documents, Opp. at 20-21, ignores the Second Circuit s holding in United States v. Adlman, 134 F. 3d 1194, (2d Cir. 1998), that to be protected work product, a document must have been created because of pending or anticipated litigation (emphasis in original). Their work product designations fail this test. Take, for example, Document No on their log an April 4, among the LATFOR staffers who drew the plan discussing how to calculate the size of the Senate in light of the 2010 Census data. This document was written nine months before the Carvin Memorandum was published, and nearly a year before the Senate Plan was enacted. The Senate Republicans 6 The cases the Senate Republicans cite are not to the contrary. United States v. Zolin, 491 U.S. 554 (1989), focused narrowly on in camera reviews relating to the crime-fraud exception to the attorney-client privilege, a context in which there is reason to be concerned about the possible due process implications of routine use of in camera proceedings. Id. at 571. And even in that very different context, the Court decided that the threshold showing that an in camera review is warranted should not be a stringent one, and that the moving party need only show a factual basis adequate to support a good faith belief by a reasonable person that the privilege assertion may be invalid. Id. at 572. In Payless Shoesource, Inc. v Canal Street, 1996 WL (S.D.N.Y. Apr. 17, 1996), Magistrate Judge Eaton noted that the moving party had rejected plaintiff s suggestion that they seek additional information from plaintiff regarding the basis for plaintiff s assertion of the attorney-client privilege unlike here, where the Senate Republicans declined, during our extensive meet and confer discussions, to provide us with any additional information supporting their assertions of privilege. Judge Eaton declined to conduct an in camera review on the present state of the record because defendants have set forth no reason to doubt that these documents were communications between attorney and client made for that purpose. Id. And in Grossman v. Schwarz, 125 F.R.D. 376 (S.D.N.Y. 1989), the Court actually concluded that an in camera inspection was likely to be necessary. Id. at

14 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 14 of 15 PageID #: cannot credibly contend that this document was written because of equal population litigation. It was written because LATFOR had a constitutional and statutory duty to perform the necessary calculations to determine the new Senate size so that an appropriate redistricting plan could be developed. The Senate Republicans fault us for provid[ing] no support whatsoever for our objections to their designations, Opp. at 21, but once again they have it backwards. It is their burden to demonstrate that each of their privilege assertions is valid. We have no burden, other than to articulate the governing legal standard and observe that the spare information they provided on their privilege log suggests that none of their work product designations is valid. 7 Finally, there is no basis for the Court to reach the substantial need question under Rule 26(b)(3)(A)(ii) because the documents at issue are not protected by the work product privilege in the first place. But to the extent the Court deems it necessary to evaluate this independent basis for granting our motion, it is sufficient to reiterate that the Court already has found that we have a pressing need for this discovery and no other means to access it, Opening Br. at 19, and that as discussed above, the Senate Republicans argument that subjective intent is categorically irrelevant is plainly wrong. See supra at Contrary to the Senate Republicans spin, the supposed near absolute protection that they claim Rule 26(b)(3)(B) affords them, Opp. at 22, 23, applies only to the mental impressions, conclusions, opinions, or legal theories of an attorney. In re Grand Jury Proceedings, 219 F.3d 175, 190 (2d Cir. 2000) (emphasis added); see also Hickman v. Taylor, 329 U.S. 495, 510 (1947) ( [I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. ) (emphasis added); United States v. Jacques Dessange, Inc., 2000 WL , at *2 (S.D.N.Y. Mar. 27, 2000) ( A heightened standard of protection must be accorded opinion work product that reveals an attorney s mental impressions and legal theories. ) (emphasis added); Genon Mid-Atl., LLC v. Stone & Webster, Inc., 2011 WL (S.D.N.Y. June 6, 2011) ( [H]ere, there is no suggestion that the records contain attorneys mental impressions or litigation strategies material at the heart of the work product doctrine. ). The words or other representative concerning the litigation in Rule 26(b)(3)(B) refer to agents and others assisting in preparation of the case, 8 Fed. Prac. & Proc. Civ (3d ed.) for example, to a paralegal taking notes of an interview on an attorney s behalf. S.E.C. v. Nadel, 2012 WL , at *6 (E.D.N.Y. Apr. 16, 2012). Discussions among LATFOR officials about how many Senate districts to draw or how to draw them plainly are not covered. 10

15 Case 1:11-cv DLI-RR-GEL Document 597 Filed 05/01/13 Page 15 of 15 PageID #: CONCLUSION For the foregoing reasons, the Senate Democrats motion to compel should be granted. Dated: May 1, 2013 New York, New York By: /s/ Eric Hecker Eric Hecker John R. Cuti Alexander Goldenberg Julie B. Ehrlich CUTI HECKER WANG LLP 305 Broadway, Suite 607 New York, New York (212) Jeffrey M. Wice P.O. Box Washington, D.C (202) Attorneys for the Senate Democrats