Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ et al., Plaintiffs, v. CIVIL ACTION NO. 5:11-CV-00360-OLG-JES-XLR STATE OF TEXAS et al., Defendants. DEFENDANT STATE OF TEXAS MOTION FOR PROTECTIVE ORDER On Sunday, May 18, roughly six and a half months after discovery reopened in this case and 12 days before the close of discovery, Plaintiffs Texas Latino Redistricting Task Force, et al. ( Plaintiffs or TLRTF Plaintiffs ) served a deposition notice on Defendant State of Texas ( Defendant or State ) pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure ( Federal Rules ), directing the State to designate a witness to provide testimony on the State s purpose or intent underlying the boundaries of the 2011 House and congressional redistricting plans and the 2013 House plan, from October 1, 2010 to the present. See Notice of Deposition Upon Oral Examination of Rule 30(b)(6) Witness(es) Designated by the State of Texas, attached as Exhibit A (hereinafter Deposition Notice ). The TLRTF Plaintiffs set this deposition for May 28 (seven business days after the notice was sent) and requested that the State identify the designated individual(s) who would testify on behalf of the 1
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 2 of 13 State at least five business days before the date of the deposition. Id. at 4. Given the intervening Memorial Day holiday, that meant the State would have had to name the designated individual or individuals by Tuesday, May 20, to comply with this demand a mere two business days after receiving the notice. In addition to being untimely and inadequate, the TLRTF Plaintiffs deposition notice is improper on its face. A Rule 30(b)(6) deposition calling for after-the-fact testimony about the State s purported purpose or intent is not the proper mechanism for determining the purpose of the State s redistricting plans. As a general rule, the purpose of legislation must be determined by the legislative record and the text of the statute. To the extent any individual s subjective motivation or intent is germane to the question of legislative purpose, the TLRTF Plaintiffs have had several years to depose legislators about their individual motivation in supporting the redistricting plans and their individual understanding of the plans purpose or intent. In fact, since 2011, at least 35 members who served in the Legislature in 2011 and/or 2013 have been deposed, some more than once. The TLRTF Plaintiffs attempt to force the State to designate representatives under Rule 30(b)(6) is not a reasonable effort to secure relevant discovery. Whatever the purpose of the TLRTF Plaintiffs vague eleventh-hour request, it is precisely the kind of tactic that the Federal Rules seek to 2
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 3 of 13 prevent. The State moves for entry of a protective order barring the requested Rule 30(b)(6) deposition. 1 I. Protective Orders Are Intended to Guard Against Burdensome and Harassing Discovery Tactics. Although the Federal Rules allow for broad discovery, the spirit of the Rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues. Batson v. Neal Spelce Assocs., Inc., 112 F.R.D. 632, 642 (W.D. Tex. 1986) (citation and internal quotation marks omitted). Rule 26(b)(2)(C) provides that a court must limit the frequency or extent of discovery otherwise allowed by the Federal Rules or local rules when the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, or when the burden or expense of the proposed discovery outweighs its likely benefit. Fed R. Civ. P. 26(b)(2)(C)(i), (iii). Protective orders may be issued, on good cause shown, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). In fashioning a protective order, the Court may prohibit the discovery altogether; specify the terms of the discovery; or forbid[] inquiry into certain matters. Fed. R. Civ. P. 26(c)(1)(A), (B), (D). In determining whether to issue a protective order, the potential harm to the affected party is balanced against the requesting party s need for the information. Gutierrez v. Benavides, 292 F.R.D. 401, 403 (S.D. Tex. 2013). 1 To the extent that the Court allows the TLRTF Plaintiffs to conduct any Rule 30(b)(6) deposition of the State, the topics of testimony should be identified with specificity, and the State should be afforded at least two weeks notice in advance of the deposition. 3
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 4 of 13 Rule 30(b)(6) imposes additional protections against burdensome deposition requests. Notices issued under this rule must describe with reasonable particularity the matters for examination. Fed. R. Civ. P. 30(b)(6). This is not a weightless standard; the requesting party must designate the particular subject areas of the deposition with painstaking specificity. Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000); see also Whiting v. Hogan, No. 12-CV-08039, 2013 WL 1047012, at *10 (D. Ariz. Mar. 14, 2013) ( The party requesting the [30(b)(6)] deposition must reasonably particularize the subjects of the intended inquiry so as to facilitate the responding party s selection of the most suitable deponent. (citation and internal quotation marks omitted)). The constraints on Rule 30(b)(6) notices appropriately reflect that [a]n overbroad Rule 30(b)(6) notice subjects the noticed party to an impossible task. To avoid liability, the noticed party must designate persons knowledgeable in the areas of inquiry listed in the notice. Where... the [noticed party] cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible. Reed v. Bennett, 193 F.R.D 689, 692 (D. Kan. 2000) (citations omitted). The TLRTF Plaintiffs vague notice does not provide the State with enough information to identify or prepare a responsive witness. II. Good Cause Exists to Issue a Protective Order Barring the TLRTF Plaintiffs Requested 30(b)(6) Deposition of the State of Texas. A. The TLRTF Plaintiffs Vague Request Is Improper on its Face. The TLRTF Plaintiffs deposition notice lists three general topics on which they seek testimony dating from October 1, 2010 to the present: 4
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 5 of 13 1. The State of Texas s purpose or intent underlying the boundaries of the Texas 2011 enacted congressional redistricting plan C185. 2. The State of Texas s purpose or intent underlying the boundaries of the Texas 2011 enacted state house redistricting plan H283. 3. The State of Texas s purpose or intent underlying the boundaries of the Texas 2013 enacted state house redistricting plan H358. Deposition Notice at 3. The TLRTF Plaintiffs vague designations do not provide enough specificity for the State of Texas to designate or educate witnesses. The TLRTF Plaintiffs provide no guidance regarding the source of the State s purported purpose or intent underlying the boundaries of each redistricting plan. Depending on the TLRTF Plaintiffs theory of legislative purpose, the deposition notice could be interpreted to encompass the subjective motivation of any individual who had a role in how districts were configured in the three maps, including members of the Texas Legislature, legislative staff involved in drafting the plans, members of the public who offered suggestions on district boundaries, 2 and, with respect to the 2013 House plan, this Court. Rule 30(b)(6) s reasonable particularity requirement is intended to guard against such an evasion of the proper bounds of what constitutes relevant and permissible discovery. Reed, 193 F.R.D at 692. Moreover, good cause would still exist for a protective order even if the TLRTF Plaintiffs had provided specific notice of the information they seek to discover. The TLRTF Plaintiffs 30(b)(6) notice is improper because the purpose of the 2011 and 2 The parties have had discovery from a large portion of these individuals. Since discovery was reopened in this case, the parties have taken over 75 depositions and exchanged nearly 400,000 pages of documents (some of which represented a reproduction of materials previously produced by the State). Much of this discovery relates to why the various boundaries have been drawn where they are. Moreover, extensive discovery was conducted, albeit somewhat hastily, in this Court and the D.C. court in 2011 and 2012. 5
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 6 of 13 2013 redistricting plans can be determined by examining the legislative record. See Birdwell v. Skeen, 983 F.2d 1332, 1337 (5th Cir. 1993) ( [T]o discern unexpressed congressional intent, courts should refer to the legislative history of the act. ); Graff Chevrolet Co. v. Campbell, 343 F.2d 568, 571 (5th Cir. 1965) ( The legislative history of a statute... is the most fruitful source of instruction as to its proper interpretation. (citation and internal quotation marks omitted)). The voluminous legislative record in this case includes proposed amendments, committee testimony, and floor debates. That should be the primary source for any inquiry into the legislative purpose underlying the 2011 and 2013 redistricting plans. Deposing the State via Rule 30(b)(6) is entirely unnecessary in light of this substantial legislative record. See Fed. R. Civ. P. 26(b)(2)(C)(i). To the extent evidence of the Legislature s purpose is available from other sources, such as individual legislators, it can and should be obtained from those sources, not through a 30(b)(6) notice to the State. Individual legislators can competently testify about their own personal views and opinions regarding the general purpose behind the redistricting plans. See Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 132 (1974). This testimony could be obtained through depositions of legislators over 35 of whom have been deposed on one or more occasions since 2011 or are scheduled to be deposed. Assuming for purposes of argument that other individuals are competent 6
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 7 of 13 to speak to the Legislature s purpose, the substance of their knowledge can and should be discovered through targeted discovery requests or subpoenas. 3 The TLRTF Plaintiffs are not entitled to shift their entire burden of discovery by sending a vague notice directing the State to designate a witness to testify on the ultimate issue in the case. As written, the TLRTF Plaintiffs notice would require the State to canvass all available evidence and prepare a witness to address any issue of fact that could ultimately bear on the question of legislative purpose. This is an improper use of Rule 30(b)(6). The requested deposition should thus be barred. See Fed. R. Civ. P. 26(b)(2)(C)(i), (iii). B. The Breadth and Timing of TLRTF Plaintiffs Deposition Notice Suggest that the Request is Merely Being Used to Harass the State. The uncertain scope of the TLRTF Plaintiffs deposition notice is by no means the only deficiency. Without any advance discussion with the State s counsel, the TLRTF Plaintiffs served their 30(b)(6) deposition notice on Sunday, May 18, over six months after discovery began and only 12 days before discovery was set to close. The parties have conducted, or scheduled, over 75 depositions in the last four months. Recognizing their self-imposed time constraints, the TLRTF Plaintiffs noticed the State s deposition for May 28, seven business days after the notice was sent and just two days before the end of discovery. Worse, the TLRTF Plaintiffs requested that the 3 The TLRTF Plaintiffs cannot prove legislative intent through discovery aimed at individuals outside the Legislature who supported, or otherwise influenced, the 2011 and 2013 redistricting plans. See Alliance of Auto. Mfrs., Inc. v. Jones, No. 4:08cv555, 2013 WL 4838764, *5 (N.D. Fla. Sept. 11, 2013) (rejecting discovery requests directed at an association pertaining to a proponent of legislation s understanding or interpretation of the proposed legislation, the proponent s communications concerning supporting, opposing, lobbying for or otherwise seeking passage of the legislation, [and] the extent of the proponent s involvement in the legislative process ). 7
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 8 of 13 State provide the name of the designated witness or witnesses at least five business days before the date of the deposition in other words, two business days after the day the notice was issued. Deposition Notice at 4. When considered in light of the vagueness of the request, the TLRTF Plaintiffs tactics amount to harassment. It is patently unreasonable to give the State only two days to identify a testifying witness, and then another five business days to prepare the witnesses (or witnesses) for a Rule 30(b)(6) deposition. Such short notice is especially unreasonable when the noticing party seeks testimony that relates to a vaguely defined topic and a period of time extending as far back as October 2010. The State s concerns about the short turnaround time on the deposition are not passing concerns; indeed, an entity can be sanctioned for failing to provide a knowledgeable and prepared witness. Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 197-98 (5th Cir. 1993) ( If [the designated] agent is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all. ). The combination of inadequate notice and insufficient specificity in the TLRTF Plaintiffs deposition notice imposes a burden on the State that is impossible to define and therefore impossible to satisfy. CONCLUSION For the foregoing reasons, the State respectfully requests that the Court enter a protective order barring the Rule 30(b)(6) deposition of the State. 8
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 9 of 13 Dated: May 23, 2014 Respectfully submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy Attorney General for Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General /s/ Patrick K. Sweeten PATRICK K. SWEETEN Chief, Special Litigation Division Texas State Bar No. 00798537 P.O. Box 12548, Capitol Station Austin, TX 78711-2548 (512) 463-0150 (512) 936-0545 (fax) ATTORNEYS FOR THE STATE OF TEXAS CERTIFICATE OF CONFERENCE I certify that I conferred with counsel for the TLRTF Plaintiffs in person on May 20, 2014. Counsel opposes this Motion. /s/ Patrick K. Sweeten PATRICK K. SWEETEN 9
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 10 of 13 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this filing was sent on May 23, 2014 via the Court s electronic notification system and/or email to the following counsel of record: DAVID RICHARDS Richards, Rodriguez & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, TX 78701 512-476-0005 davidr@rrsfirm.com RICHARD E. GRAY, III Gray & Becker, P.C. 900 West Avenue, Suite 300 Austin, TX 78701 512-482-0061/512-482-0924 (facsimile) Rick.gray@graybecker.com ATTORNEYS FOR PLAINTIFFS PEREZ, DUTTON, TAMEZ, HALL, ORTIZ, SALINAS, DEBOSE, and RODRIGUEZ JOSE GARZA Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 78209 210-392-2856 garzpalm@aol.com MARK W. KIEHNE mkiehne@lawdcm.com RICARDO G. CEDILLO rcedillo@lawdcm.com Davis, Cedillo & Mendoza McCombs Plaza 755 Mulberry Ave., Ste. 500 San Antonio, TX 78212 210-822-6666/210-822-1151 (facsimile) GERALD H. GOLDSTEIN ggandh@aol.com DONALD H. FLANARY, III donflanary@hotmail.com Goldstein, Goldstein and Hilley 310 S. St. Mary s Street San Antonio, TX 78205-4605 210-226-1463/210-226-8367 (facsimile) PAUL M. SMITH, MICHAEL B. DESANCTIS, JESSICA RING AMUNSON Jenner & Block LLP 1099 New York Ave., NW Washington, D.C. 20001 202-639-6000 J. GERALD HEBERT 191 Somervelle Street, # 405 Alexandria, VA 22304 703-628-4673 hebert@voterlaw.com JESSE GAINES P.O. Box 50093 Fort Worth, TX 76105 817-714-9988 gainesjesse@ymail.com ATTORNEYS FOR PLAINTIFFS QUESADA, MUNOZ, VEASEY, HAMILTON, KING and JENKINS 10
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 11 of 13 JOAQUIN G. AVILA P.O. Box 33687 Seattle, WA 98133 206-724-3731/206-398-4261 (facsimile) jgavotingrights@gmail.com ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS NINA PERALES nperales@maldef.org MARISA BONO mbono@maldef.org Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 210-224-5476/210-224-5382 (facsimile) MARK ANTHONY SANCHEZ masanchez@gws-law.com ROBERT W. WILSON rwwilson@gws-law.com Gale, Wilson & Sanchez, PLLC 115 East Travis Street, Ste. 1900 San Antonio, TX 78205 210-222-8899/210-222-9526 (facsimile) ATTORNEYS FOR TEXAS LATINO REDISTRICTING TASK FORCE, CARDENAS, JIMENEZ, MENENDEZ, TOMACITA AND JOSE OLIVARES, ALEJANDRO AND REBECCA ORTIZ JOHN T. MORRIS 5703 Caldicote St. Humble, TX 77346 281-852-6388 JOHN T. MORRIS, PRO SE LUIS ROBERTO VERA, JR. Law Offices of Luis Roberto Vera, Jr. 1325 Riverview Towers San Antonio, Texas 78205-2260 210-225-3300 lrvlaw@sbcglobal.net GEORGE JOSEPH KORBEL Texas Rio Grande Legal Aid, Inc. 1111 North Main San Antonio, TX 78213 210-212-3600 korbellaw@hotmail.com ATTORNEYS FOR INTERVENOR- PLAINTIFF LEAGUE OF UNITED LATIN AMERICAN CITIZENS ROLANDO L. RIOS Law Offices of Rolando L. Rios 115 E Travis Street, Suite 1645 San Antonio, TX 78205 210-222-2102 rrios@rolandorioslaw.com ATTORNEY FOR INTERVENOR- PLAINTIFF HENRY CUELLAR GARY L. BLEDSOE Law Office of Gary L. Bledsoe 316 W. 12 th Street, Ste. 307 Austin, TX 78701 512-322-9992/512-322-0840 (facsimile) garybledsoe@sbcglobal.net ATTORNEY FOR INTERVENOR- PLAINTIFFS TEXAS STATE CONFERENCE OF NAACP BRANCHES, TEXAS LEGISLATIVE BLACK CAUCUS, EDDIE BERNICE JOHNSON, SHEILA JACKSON- LEE, ALEXANDER GREEN, HOWARD JEFFERSON, BILL LAWSON, and JUANITA WALLACE 11
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 12 of 13 MAX RENEA HICKS Law Office of Max Renea Hicks 101 West Sixth Street Suite 504 Austin, TX 78701 512-480-8231/512/480-9105 (facsimile) ATTORNEY FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, MILTON GERARD WASHINGTON, and SANDRA SERNA STEPHEN E. MCCONNICO smcconnico@scottdoug.com SAM JOHNSON sjohnson@scottdoug.com S. ABRAHAM KUCZAJ, III akuczaj@scottdoug.com Scott, Douglass & McConnico One American Center 600 Congress Ave., 15th Floor Austin, TX 78701 512-495-6300/512-474-0731 (facsimile) ATTORNEYS FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BALAKUMAR PANDIAN, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, ELIZA ALVARADO, JOSEY MARTINEZ, JUANITA VALDEZ-COX, LIONOR SOROLA- POHLMAN, MILTON GERARD WASHINGTON, NINA JO BAKER, and SANDRA SERNA VICTOR L. GOODE Asst. Gen. Counsel, NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-5120 410-580-5120/410-358-9359 (facsimile) vgoode@naacpnet.org ATTORNEY FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES ROBERT NOTZON Law Office of Robert S. Notzon 1507 Nueces Street Austin, TX 78701 512-474-7563/512-474-9489 (facsimile) robert@notzonlaw.com ALLISON JEAN RIGGS ANITA SUE EARLS Southern Coalition for Social Justice 1415 West Highway 54, Ste. 101 Durham, NC 27707 919-323-3380/919-323-3942 (facsimile) anita@southerncoalition.org ATTORNEYS FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES, EARLS, LAWSON, WALLACE, and JEFFERSON DONNA GARCIA DAVIDSON PO Box 12131 Austin, TX 78711 512-775-7625/877-200-6001 (facsimile) donna@dgdlawfirm.com FRANK M. REILLY Potts & Reilly, L.L.P. P.O. Box 4037 Horseshoe Bay, TX 78657 512-469-7474/512-469-7480 (facsimile) reilly@pottsreilly.com ATTY FOR DEFENDANT STEVE MUNISTERI 12
Case 5:11-cv-00360-OLG-JES-XR Document 1003 Filed 05/23/14 Page 13 of 13 KAREN M. KENNARD 2803 Clearview Drive Austin, TX 78703 (512) 974-2177/512-974-2894 (facsimile) karen.kennard@ci.austin.tx.us ATTORNEY FOR PLAINTIFF CITY OF AUSTIN DAVID ESCAMILLA Travis County Asst. Attorney P.O. Box 1748 Austin, TX 78767 (512) 854-9416 david.escamilla@co.travis.tx.us ATTORNEY FOR PLAINTIFF TRAVIS COUNTY CHAD W. DUNN chad@brazilanddunn.com K. SCOTT BRAZIL scott@brazilanddunn.com Brazil & Dunn 4201 FM 1960 West, Suite 530 Houston, TX 77068 281-580-6310/281-580-6362 (facsimile) ATTORNEYS FOR INTERVENOR- DEFS TEXAS DEMOCRATIC PARTY and BOYD RICHIE RONALD C. MACHEN, JR., United States Attorney District of Columbia JOCELYN SAMUELS T. CHRISTIAN HERREN, JR. TIMOTHY F. MELLETT BRYAN SELLS JAYE ALLISON SITTON Jaye.sitton@usdoj.gov DANIEL J. FREEMAN MICHELLE A. MCLEOD U.S. Department of Justice Civil Rights Division, Voting Rights Room 7254 NWB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Daniel.freeman@usdoj.gov (202) 305-4355; (202) 305-4143 ATTORNEYS FOR THE UNITED STATES /s/ Patrick K. Sweeten Patrick K. Sweeten 13