Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., CIVIL ACTION NO. Plaintiffs, SA-11-CA-360-OLG-JES-XR [Lead case] STATE OF TEXAS, et al., Defendants. MEXICAN AMERICAN LEGISLATIVE CIVIL ACTION NO. CAUCUS, TEXAS HOUSE OF SA-11-CA-361-OLG-JES-XR REPRESENTATIVES (MALC, [Consolidated case] Plaintiffs, STATE OF TEXAS, et al., Defendants. TEXAS LATINO REDISTRICTING TASK CIVIL ACTION NO. FORCE, et al., SA-11-CV-490-OLG-JES-XR [Consolidated case] Plaintiffs, RICK PERRY, Defendant.
Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 2 of 10 MARAGARITA V. QUESADA, et al., CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR Plaintiffs, [Consolidated case] RICK PERRY, et al., Defendants. JOHN T. MORRIS, CIVL ACTION NO. SA-11-CA-615-OLG-JES-XR Plaintiff, [Consolidated case] STATE OF TEXAS, et al., Defendants. EDDIE RODRIGUEZ, et al. CIVIL ACTION NO. SA-11-CA-635-OLG-JES-XR Plaintiffs, [Consolidated case] RICK PERRY, et al., Defendants. QUESADA PLAINTIFFS REPLY TO DEFENDANTS RESPONSE TO MOTION TO COMPEL DISCOVERY In their response to the Quesada Plaintiffs Motion to Compel Discovery, Defendants make two arguments. First, Defendants state that the information sought by the Quesada Plaintiffs regarding the 2012 so-called compromise plan is neither relevant nor likely to lead to the discovery of admissible evidence. See Defendants Response at 2-4 and 9-10. Moreover, according to the Defendants, this information is barred from discovery by Rule 408, Federal 2
Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 3 of 10 Rules of Evidence. Defendants second argument is that the documents and other information sought by Quesada Plaintiffs regarding the 2013 plan are matters of public record or are privileged. Both arguments are without merit, as we explain below. 1 1. The Information Being Sought By the Quesada Plaintiffs Is Relevant to the Claims Currently Pending Before the Court. The information sought by Interrogatories #s 1-8 go directly to the issue of the State s purpose behind the interim plan, which is identical to the map adopted by the Legislature in 2013. As Defendants note, (Defendants Response at 6, those eight (8 Interrogatories seek communications among those who secretly drew the interim plan in 2012. Such information goes to the heart of the issue before this Court, because that plan was simply rubber-stamped by the Texas Legislature in 2013 without any changes whatsoever. The communications among those who secretly drew the plan behind closed doors goes directly to the issue of whether the State s interim plan is infected with racially discriminatory purpose. As this Court is well aware, no evidentiary hearing was ever held on the interim plan and no discovery was undertaken about it because of time constraints imposed on the Court by the impending election cycle. But there is time now to produce the documents that have been requested and such information contained within them will surely shed light as to why certain districts were drawn the way they were, why certain minority neighborhoods remain either cracked or packed in certain districts, and what the process was to develop that plan. All of those issues are relevant to the issue of the State s intent. Fact discovery ended on May 30, 2014. If the Quesada Plaintiffs succeed in their motion to compel, then the Defendants could be ordered to provide adequate 1 The Quesada Plaintiffs Motion to Compel is supported by the following Plaintiffs: LULAC, the Perez Plaintiffs, the Gonzalez Plaintiffs (ECF No. 1021, as well as the NAACP and the African American Congresspersons (ECF No. 1022. It is opposed by the Texas Latino Redistricting Task Force and the Mexican American Legislative Caucus, which have moved for a protective order to block the Quesada Plaintiffs from obtaining certain communications about the development of the interim plan. That motion too is baseless and the Quesada Plaintiffs are filing today an expedited response in opposition to that motion. 3
Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 4 of 10 answers and documents responsive to the requested discovery by early or mid-june. Providing the discovery responses by that time-frame, particularly the document productions, would enable the Quesada Plaintiffs to utilize such information at the upcoming trial in July, particularly in cross examination of the State s witnesses. The Defendants apparently recognize that the requested information is relevant because they couch most of their arguments in terms of why such information is barred from discovery under Rule 408, Federal Rules of Evidence. That Rule states that evidence of the following is not admissible on behalf of any party either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1 furnishing, promising, or offering or accepting, promising to accept, or offering to accept a valuable consideration in compromising or attempting to compromise the claim; and (2 conduct or a statement made during compromise negotiations about the claim except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. Rule 408 also has an exception that the above described evidence may be admitted for another purpose, such as proving a witness s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. The policy behind this rule is that if settlement talks fail, communications made during those talks can t be used to prove the same claim that were the subject of the settlement discussions, because otherwise parties would be wary of entering into settlement talks. That's not this case, however. First, the claims that were discussed and eventually compromised in the interim plan were those of the Texas Latino Redistricting Task Force and Congressman Cuellar. Rule 408 only bars admission of settlement negotiations to prove or disprove the claim that was the subject of 4
Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 5 of 10 the negotiation. See Rule 408(1 and (2. The Quesada Plaintiffs are not seeking to prove or disprove the Task Force or Congressman Cuellar s claims. Instead, we are attempting to obtain discovery to show that the map produced by the negotiations was itself the product of impermissible motives by the State or State officials, giving rise to new claims being pursued by separate parties. It doesn't make sense to bar inquiry for that purpose. The express terms of the rule simply don't apply. Two brief hypothetical examples illustrate this point. Imagine if one of the Plaintiffs and Defendants expressly agreed to draw an interim compromise plan that helped black voters whenever possible while hurting Latino voters as much as possible. Surely such communications wouldn t be blocked from discovery by the other Plaintiffs representing Latino voters by Rule 408. Or imagine if those who drew the map (and Defendants know who drew the map they proposed to this Court in 2012 communicated with certain Members of Congress that they drew lines that continued to discriminate against minority voters but did not disturb any incumbent s chances of re-election. Here again, such information would not only be highly relevant to the intent issues before the Court, but would also lead to the discovery of admissible evidence. There is no reason such communications would be shielded by Rule 408. As noted above, the policy behind the inadmissibility of settlement communications is that if settlement talks fail, they can t be used to prove the same claim. Here, the Quesada Plaintiffs Interrogatories 1-8 are not attempting to obtain any information about the Task Force or Congressman Cuellar s claims. Instead, we want to discover information from those in the State who drew the plan and their communications with specific groups of people: the parties to this lawsuit, Members of Congress and their staffs, members of the Legislature and their staffs, etc. So Rule 408 simply doesn t apply. 5
Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 6 of 10 But even if Rule 408 did apply, it allows settlement communications to be admitted into evidence to prove bias or prejudice. The issue currently before the Court in the motion to compel is whether the information being sought is discoverable, not whether it s admissible. But where, as here, the information being sought is to show that the State s adoption of the plan in 2012 is the result of bias and discrimination, and that the Legislature maintained that discriminatory intent when it adopted that same exact plan in 2013. The communications thus fall within the exception to Rule 408 (even if it applied. The communications and information being sought is also admissible to show the state of mind of the state actors who adopted a plan that was later enacted by the Texas Legislature. The fact that these were settlement talks is irrelevant unless and until someone tries to use the communications to prove something about the weakness or strength of the preexisting claims of the parties who were involved in the negotiations that led to the plan (the Task Force and Congressman Cuellar. As explained above, that is not what this discovery seeks. 2 2. The Documents And Other Information Sought By Quesada Plaintiffs Regarding The 2013 Plan Are Not Matters Of Public Record. Defendants also make two arguments in attempting to block discovery about the 2013 plan as set forth in Quesada Plaintiffs Interrogatories #s 9-11 and Requests for Production #s 2-4. They first claim that the actions taken and materials considered by the Legislature to enact the 2013 2 Defendants appear to attempt to rebut the argument that the interim plan presented to the Court by the State in 2012 did not have its genesis as a result of the compromise negotiations because the Court had noted that no party would be bound by any proposed plan. See Defendants Response at page 10. Of course, the fact that other parties were not bound by the plan when it was proposed to this Court by Texas is unrelated to the fact that this Court s approved plan was nearly identical to the State s proposed interim map. Furthermore, again attempting to claim that the interim plan approved by the Court in 2012 did not have its genesis in the negotiations, the State notes that this Court s order approving the interim plan observed that it had conducted an independent analysis of the proposed interim plan under Perry v. Perez. But the Court s statement does not suggest the Court reviewed the intent behind the map or why certain lines were drawn the way they were. It merely goes to the fact that this Court, as instructed by the Supreme Court of the United States in Perry v. Perez, had given sufficient deference to the State s 2011 enacted plan and that the interim plan changed only those parts of the 2011 plan where a Section 5 preclearance challenge was not insubstantial or a likely violation of Section 2 or the U.S. Constitution. 6
Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 7 of 10 Congressional plan are matters of public record. Defendants Response at 3. They also have asserted that information sought by the Quesada Plaintiffs regarding the State Defendants considerations underlying the 2013 congressional plan are privileged and are not ripe for review. Defendants Argument Heading II at 11. To the extent that Defendants are claiming that the only relevant documents regarding the Legislature s intent behind the adoption of the 2013 plan are matters of public record (debates on the floor, committee reports, etc., they are wrong. As this Court has already seen, emails among those drawing the plan (e.g., between and among Mr. Opiela, Mr. Interiano and Mr. Downton shed considerable light on the intent of those who actually drew the 2011 plan and the process they followed. Indeed, such communications were cited by the D.C. Court in denying preclearance to the congressional plan because it was the product of a racially discriminatory purpose. See State of Texas v. United States, No. 11-1303 (D.D.C. ECF No. 230 at 32, 38-42. Defendants then go on to state that all other documents (beyond the legislative record documents that are public are barred from discovery by various claimed privileges. Of course, as Defendants note, they have waited until after the fact discovery deadline to produce any log of claimed privileged documents. Defendants Response at 11 ( The privilege log for any documents withheld is still pending.. While they have stated that they will attempt to produce a privilege log soon, such a response is both inadequate and contrary to the Federal Rules of Civil Procedure. The Defendants Responses to the Quesada Plaintiffs Request for Production of Documents were due on May 22, 2014. That was the date on which the Defendants were obligated to provide the Quesada Plaintiffs with a claimed privilege log. 3 They failed to do so 3 Defendants state in their response that pursuant to the ESI agreement in this case, they have 45 days from the date of its response to produce a privilege log. Defendants Response at 11. But the Quesada Plaintiffs did not sign or approve the ESI agreement, and are not bound by it. Defendants were advised of this fact several months ago. See Exhibit A. As a result, the Quesada Plaintiffs have provided documents to Defendants during discovery in pdf 7
Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 8 of 10 and thus have waived their rights to withhold the documents. See Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005 (As with objections to interrogatories under Rule 33, objections to Rule 34 requests for production must be stated with particularity in a timely answer, and... a failure to do so may constitute a waiver of grounds not properly raised, including privilege or work product immunity, unless the court excuses this failure for good cause shown.. Compare Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008 (Court finds Defendants had waived the attorney-client privilege concerning 165 privileged documents. If this Court decides that notwithstanding the Defendants failure to produce a timely privilege log, that they are nonetheless still permitted to produce a privilege log, the Defendants should be required to produce the log forthwith (e.g., within five (5 days, and not at some unspecified time in the future, and the Court should leave open the possibility that the Quesada Plaintiffs can contest entries in that log and seek discovery of documents being withheld pursuant to any claimed privileges. CONCLUSION For the reasons set forth above and in the Quesada Plaintiffs Motion to Compel Discovery (ECF No. 1012, the motion to compel should be granted. format and not pursuant to the format set forth in the ESI agreement. Thus, the Defendants claims of privileged documents have been waived due to their failure to produce a privilege log in a timely manner. 8
Case 5:11-cv-00360-OLG-JES-XR Document 1036 Filed 06/02/14 Page 9 of 10 Respectfully submitted, GERALD H. GOLDSTEIN State Bar No. 08101000 DONALD H. FLANARY, III. State Bar No. 24045877 Goldstein, Goldstein and Hilley 310 S. St. Mary s Street 29th Floor Tower Life Bldg. San Antonio, Texas 78205 Phone: (210 226-1463 Fax: (210 226-8367 PAUL M. SMITH MICHAEL B. DESANCTIS JESSICA RING AMUNSON Jenner & Block LLP 1099 New York Ave., N.W. Washington, D.C. 20001 Tel: (202 639-6000 Fax: (202 639-6066 /s/ J. Gerald Hebert J. GERALD HEBERT 191 Somervelle Street, #405 Alexandria, VA 22304 (703 628-4673 Admitted pro hac vice CERTIFICATE OF SERVICE I hereby certify that on this 2 nd day of June, 2014, I served the foregoing Reply Memorandum on counsel of record by filing same in this Court s ECF system. /s/ J. Gerald Hebert J. GERALD HEBERT 9
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