Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., - and - Plaintiffs, EDDIE BERNICE JOHNSON, et al., - and - TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., v. Plaintiff Intervenors, RICK PERRY, et al., Defendants, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC, - and - Plaintiffs, HONORABLE HENRY CUELLAR, et al., v. Plaintiff Intervenors, STATE OF TEXAS, et al., Defendants CIVIL ACTION NO. SA-11-CA-360-OLG-JES-XR [Lead case] CIVIL ACTION NO. SA-11-CA-361-OLG-JES-XR [Consolidated case]
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 2 of 16 TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, v. RICK PERRY, et al., Defendants, MARAGARITA v. QUESADA, et al., v. Plaintiffs, RICK PERRY, et al., Defendants, JOHN T. MORRIS, Plaintiff, v. STATE OF TEXAS, et al., Defendants, EDDIE RODRIGUEZ, et al., Plaintiff, CIVIL ACTION NO. SA-11-CA-490-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-615-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-635-OLG-JES-XR [Consolidated case] 2
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 3 of 16 v. STATE OF TEXAS, et al., Defendants. TASK FORCE PLAINITFFS RESPONSE OPPOSING DEFENDANT TEXAS MOTION FOR A PROTECTIVE ORDER Plaintiffs Texas Latino Redistricting Task Force, et al. ("Task Force Plaintiffs", by and through their undersigned counsel, file this Response to Defendant State of Texas' Motion for Protective Order [Dkt. 1003]. Defendant State of Texas ( Texas filed its motion with regard to a notice of deposition pursuant to Fed.R.Civ.P. 30(b(6 that was served by Task Force Plaintiffs on May 18, 2014. For the following reasons, Task Force Plaintiffs ask the Court to deny Texas's Motion and order Texas to designate one or more witnesses pursuant to Rule 30(b(6: BACKGROUND Task Force Plaintiffs served their notice of deposition pursuant to Fed.R.Civ.P. 30(b(6 after exhausting all other avenues to obtain evidence regarding the intent of the State of Texas in enacting the 2011 State House and Congressional redistricting plans and the 2013 State House redistricting plan ( the challenged plans. In its Answer to Task Force Plaintiffs Fourth Amended Complaint, Texas denied that it used race as a predominant factor in redistricting when it enacted the challenged plans. [Dkt. 903 at 37, 41, 42, 53, 56, 67 and 78]. In order to discover more relevant information regarding the State s intent in enacting the challenged redistricting plans, the Task Force Plaintiffs propounded interrogatories regarding Texas s denial of discriminatory intent on Texas; Nandita Berry, Secretary of State of Texas; and Rick Perry, the Governor of Texas. Texas responded to the Task Force interrogatory regarding 3
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 4 of 16 racial intent in the reshaping of HD90 that plan H358 was adopted in good faith. See Attachment 1, Defendant State of Texas Objections and Responses to Texas Latino Redistricting Task Force Plaintiffs Second Set of Interrogatories at 23. Governor Perry responded similarly that plan H358 was adopted in good faith and stated further: "Defendant submits that he has been named in Plaintiffs complaint as a relief defendant. Although Defendant signed the bills for maps C185 and H283, Defendant s involvement in the legislative process that created the maps was limited." See Attachment 2, Defendant Rick Perry's Objections and Responses to Texas Latino Task Force Plaintiffs' Second Set of Interrogatories. In her responses to the same interrogatory regarding discriminatory intent in the reshaping of HD90 Secretary of State Berry wrote that that plan H358 was adopted in good faith and explained: "Defendant submits that she has been named in Plaintiffs complaint as a relief defendant...defendant neither voted for nor analyzed the plans about which Plaintiffs request a response." See Attachment 3, Defendant Nandita Berry's Objections and Responses to Texas Latino Task Force Plaintiffs' Second Set of Interrogatories. In a further attempt to gather evidence regarding Texas s intent in enacting the challenged redistricting plans, the Task Force Plaintiffs took the depositions of Senator Kel Seliger, Chair of the Texas Senate Redistricting Committee in 2011 and 2013, State Representative Drew Darby, Chair of the Texas House Redistricting Committee in 2013, and will take the deposition on May 28, 2014 of Fmr. State Representative Burt Solomons, Chair of the Texas House Redistricting Committee in 2011. Texas declined to name Senator Seliger, Representative Darby and Fmr. Representative Solomons as its Rule 30(b(6 witnesses even though Texas was in possession of the Task Force s Rule 30(b(6 deposition notice before the depositions of these officials. Thus, although they could have been designated as individuals who can testify on behalf of Texas with 4
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 5 of 16 respect to the intent underlying the challenged redistricting plans, Texas declined to designate Mr. Solomons, Darby and Seliger as Rule 30(b(6 witnesses. Texas further advised Chairmen Seliger and Darby to invoke legislative privilege during their depositions in order to avoid testifying regarding the intent behind the challenged redistricting plans. See, e.g. Attachment 4, Excerpts of Transcript of Deposition of Senator Seliger. Finally, when the Task Force Plaintiffs sought to depose witness under Rule 30(b(6 of the office of Texas House District 90, Texas objected to any individual being permitted to testify on behalf of the State of Texas through a Rule 30(b(6 deposition of the office of Texas House District 90. See Deposition of State Representative Lon Burnam, taken by Task Force Plaintiffs on May 19, 2014 (not yet available. In sum, Texas has offered no specific information regarding its intent in response to the Task Force Plaintiffs interrogatories, has refused to designate its redistricting committee chairmen as witnesses who can testify on behalf of the State, and has objected to other witnesses being designated under Rule 30(b(6 to testify on behalf of the State. ARGUMENT Texas makes two arguments in support of its request for protection, neither of which is well-founded. First, Texas argues that the Task Force Plaintiffs Rule 30(b(6 deposition notice is burdensome because it is overbroad and vague. The notice is neither. Second, Texas argues that the properly noticed deposition is harassing. It is not. The question of discriminatory purpose or intent is central to plaintiffs claims under the 14 th and 15 th Amendments. By denying that it acted with discriminatory intent or purpose, Texas necessarily raised the question as to what its intent and purpose were in enacting the challenged plans. 5
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 6 of 16 Without the ability to take depositions from witnesses who can speak to Texas s purpose or intent in enacting the challenged plans, the Task Force Plaintiffs are left only with Texas s denials. In essence, Texas wants to have its cake and eat it too to be allowed to disclaim racial discrimination as an intent or purpose behind the challenged redistricting plans, but not to be required to produce any witness to testify on behalf of the State as to the purpose or intent behind the challenged plans. I. Plaintiffs Rule 30(B(6 Notice Properly And Specifically Notifies Defendants About The Areas Of Inquiry At Deposition. Plaintiffs have pleaded a case of racial discrimination and vote dilution under the Fourteenth and Fifteenth Amendments of the United States Constitution as well as under Section 2 of the Voting Rights Act. In this case, the question of intent or purpose is highly relevant and a proper area of inquiry. The U.S. Supreme Court has recognized that assessing a jurisdiction s motivation in enacting voting changes is a complex task requiring a sensitive inquiry into such circumstantial and direct evidence as may be available. Reno v. Bossier Parish Sch. Bd. (Bossier I, 520 U.S. 471, 488 (1997 (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977. Although a claim of racially discriminatory purpose or intent requires a sophisticated analysis, there is no question that purpose and intent are well-defined areas of inquiry for the courts. a. Task Force Plaintiffs Notice is reasonably particular. The requirement under Rule 30(b(6 that a party s notice describe with reasonable particularity the matters on which examination is requested does not require such description to be more stringent than the common definition of reasonable, which means [b]eing within the bounds of common sense. Algonquin Heights v. U.S., 2008 WL 2019025 at *4 (Fed.Cl., 2008 6
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 7 of 16 (quoting American Heritage College Dictionary 1160 (4th ed.2004; see also Anaheim Gardens v. U.S., 2008 WL 2043243 at *4 (Fed.Cl., 2008. Plaintiffs Rule 30(b(6 notice is reasonably particular when it uses well-understood and widely accepted terms drawn from cases challenging intentional racial discrimination. See, e.g. City of Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003 ( We have made clear that [p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977. In 2012, the U.S. District Court for the District of Columbia found that the 2011 Texas congressional redistricting plan was enacted with discriminatory purpose[.] Texas v. United States, 887 F. Supp. 2d 133, 161 (D.D.C. 2012 vacated and remanded, 133 S. Ct. 2885, 186 L. Ed. 2d 930 (U.S. 2013. Texas itself understands and uses the terms discriminatory purpose and intentional racial discrimination in its Motion for Partial Summary Judgment currently pending before the court. See Dkt. 996 at 2. b. The Notice is proper discovery seeking information relevant to the issues. Texas does not assert that the information sought by plaintiffs is irrelevant. Courts have routinely held that the proper scope of a Rule 30(b(6 deposition is governed by Rule 26(b(1 and covers any topic that is relevant in a case. See Sanofi-Aventis v. Sandoz, Inc., 272 F.R.D. 391, 393-94 (D.N.J. 2011; see also Detoy v. City and County of San Francisco, 196 F.R.D. 362, 366-67 (N.D. Cal. 2000; Cabot Corp. v. Yamulla Enterprises, Inc., 194 F.R.D. 499, 500 (M.D. Pa. 2000; Overseas Private Inv. Corp. v. Mandelbaum, 185 F.R.D. 67, 68 (D.D.C. 1999; King v. Pratt & Whitney, a Div. of United Technologies Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995, aff'd, 213 F.3d 646 (11th Cir. 2000 aff'd, 213 F.3d 647 (11th Cir. 2000. 7
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 8 of 16 The area of inquiry set out in the Task Force s Rule 30(b(6 Notice is relevant to the question whether Texas s purpose or intent in enacting the challenged redistricting plans was racially discriminatory. The topic of purpose or intent is neither vague nor without outer limits as Texas complains. Texas further argues that the 30(b(6 Notice is improper because the purpose of the 2011 and 2013 redistricting plans can be determined by examining the legislative record. First, this argument ignores the U.S. Supreme Court s instruction to examine evidence as may be available when assessing discriminatory purpose or intent. Arlington Heights, 429 U.S. at 266. Second, whether or not a review of the legislative record reveals information about Texas s purpose or intent cannot define the scope of discovery. The Task Force Plaintiffs seek information from testifying witnesses about the State s purpose or intent; that inquiry is both appropriate and relevant to the Task Force Plaintiffs claims. Texas argues that the Task Force Plaintiffs must first seek the information they need from other sources before they can use Rule 30(b(6. No such limitation can be found in the Rule or committee notes. A party seeking to use Rule 30(b(6 need not first exhaust other means of obtaining the desired information. S.E.C. v. Kramer, 778 F. Supp. 2d 1320 (M.D. Fla. 2011(Rule 30(b(6 contains no requirement that a party first seek by other means of discovery the facts underlying the claim against him". Moreover, the Task Force Plaintiffs have pursued this evidence through other means, and, as detailed above, have been met with stiff resistance. Even if Plaintiffs were required to use other methods to conduct discovery on this topic, and they are not, Plaintiffs have done so and moved forward with the Notice precisely because previous efforts have been unavailing. 8
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 9 of 16 II. Plaintiffs 30(b(6 Notice is not a Harassing Means of Adducing Information From Defendant. Failing to establish that the Task Force Plaintiffs 30(b(6 Notice is vague or lacks particularity, Texas attempts to argue that it is being harassed. When Rule 30(b(6 was introduced, the Advisory Committee was aware of the burdens it could impose, but concluded that [t]he burden is not essentially different from that of answering interrogatories under Rule 33, and is in any case lighter than that of an examining party ignorant of who in the corporation has knowledge. Committee Note to 1970 amendment to Rule 30(b(6. Texas could have easily designated its 2011 and 2013 redistricting committee chairs as Rule 30(b(6 witnesses but chose not to. Now, having created the situation in which it may have to identify, prepare and defend new witnesses, Texas cannot complain that the Rule 30(b(6 is harassment. In fact, preparation for the noticed 30(b(6 deposition presents neither an insurmountable obstacle nor an unreasonable burden. Texas would rather simply avoid producing witnesses who will speak on behalf of the State on the critical issue of purpose or intent. Because of this and for all of the reasons stated above, the Task Force Plaintiffs urge the Court to deny Texas s request for a protective order and allow the scheduled deposition to go forward. WHEREFORE, the Task Force Plaintiffs respectfully request that the Court DENY Texas s Motion for A Protective Order and ORDER Texas to designate its 30(b(6 witness(es and make the witness(es available for deposition on or before June 6, 2014. DATED: May 27, 2014 Respectfully submitted, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 9
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 10 of 16 /s/ Nina Perales Nina Perales Texas Bar No. 24005046 110 Broadway, Suite 300 San Antonio, TX 78205 (210 224-5476 FAX (210 224-5382 COUNSEL FOR PLAINTIFFS TEXAS LATINO REDISTRICTING TASK FORCE, RUDOLFO ORTIZ, ARMANDO CORTEZ, SOCORRO RAMOS, GREGORIO BENITO PALOMINO, FLORINDA CHAVEZ, CYNTHIA VALADEZ, CESAR EDUARDO YEVENES, SERGIO CORONADO, GILBERTO TORRES, RENATO DE LOS SANTOS, JOEY CARDENAS, ALEX JIMENEZ, EMELDA MENENDEZ, TOMACITA OLIVARES, JOSE OLIVARES, ALEJANDRO ORTIZ, AND REBECCA ORTIZ Certificate of Service The undersigned counsel hereby certifies that she has served a true and correct copy of the above and foregoing to the following persons via electronic service through CM/ECF for the United States District Court for the Western District, electronic mail or fax on the 27th day of May, 2014. Patrick K. Sweeten Chief, Special Litigation Division patrick.sweeten@texasattorneygeneral.gov Adam N. Bitter William T. Deane Summer R. Lee Michael B. Neill Assistants Attorney General Office of Legal Counsel P.O. Box 12458 Austin, TX 78711-2548 (512 936-0545 (fax 10
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 11 of 16 ATTORNEYS FOR THE STATE OF TEXAS, RICK PERRY, AND JOHN STEEN Rep. Lon Burnam Capitol CAP 4S.5 P.O. Box 2910 Austin, TX 78768 Capitol Phone: (512 463-0740 District Address: P.O. Box 1894 Fort Worth, TX 76101 District Phone: (817 924-1997 To Mr. Burnam s Chief of Staff at conor.kenny@house.state.tx.us David R. Richards Richards, Rodriguez & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, TX 78701 (512 476-1513 (fax davidr@rrsfirm.com Richard E. Gray, III Gray & Becker, P.C. 900 West Avenue, Suite 300 Austin, TX 78701 (512 482-0924 (fax davidr@rrsfirm.com PEREZ, GREGORY TAMEZ; SERGIO SALINAS, CARMEN RODRIGUEZ; RUDOLFO ORTIZ, NANCY HALL AND DOROTHY DeBOSE and CONGRESSMAN PETE GALLEGO AND CONGRESSMAN FILEMON VELA, JR. Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 78209 (210 392-2856 jgarza@trla.com Joaquin G. Avila LAW OFFICE P.O. Box 33687 Seattle, Washington 98133 (206 398-4261 (fax 11
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 12 of 16 avilaj@seattleu.edu jgavotingrights@gmail.com Cynthia B. Jones Jones Legal Group, LLC 904 12th Ave E. Seattle, WA 98102 jones.cynthiab@gmail.com Ricardo G. Cedillo Mark W. Kiehne DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite 500 755 E. Mulberry Avenue San Antonio, Texas 78212 Fax: (210 822-1151 rcedillo@lawdcm.com mkiehne@lawdcm.com PLAINTIFFS MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC Gerald H. Goldstein Donald H. Flanary, III Goldstein, Goldstein and Hilley 310 S. St. Mary s Street 29th Floor Tower Life Bldg. San Antonio, Texas 78205 (210 226-8367 (fax ggandh@aol.com donflanary@hotmail.com Paul M. Smith Michael B. Desanctis Jessica Ring Amunson Jenner & Block LLP 1099 New York Ave., N.W. Washington, D.C. 20001 (202 639-6066 (fax psmith@jenner.com mdesanctis@jenner.com jamunson@jenner.com J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA 22304 (703 628-4673 12
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 13 of 16 Hebert@voterlaw.com Jesse Gaines PO Box 50093 Ft Worth, TX 76105 (817 714-9988 gainesjesse@ymail.com MARGARITA V. QUESADA, ROMEO MUNOZ, MARC VEASEY, JANE HAMILTON, LYMAN KING, AND JOHN JENKIN, KATHLEEN MARIA SHAW, DEBBIE ALLEN, JAMAAL R. SMITH AND SANDRA PUENTE John T. Morris, Pro Se 5703 Caldicote St. Humble, TX 77346 (281 852-6388 Johnmorriss1939@hotmail.com Renea Hicks Attorney at Law Law Office of Max Renea Hicks 101 West 6th Street Austin, Texas 78701 (512 480-9105 (fax rhicks@renea-hicks.com Steve McConnico SCOTT, DOUGLASS & MCCONNICO, L.L.P. smcconnico@scottdoug.com S. Abraham Kuczaj, III akuczaj@scottdoug.com Sam Johnson sjohnson@scottdoug.com 600 Congress Avenue, Suite 1500 Austin, Texas 78701-2589 (512 474-0731 (fax Abha Khanna PERKINS COlE, LLP Washington Bar No. 42612 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 (206 359-9312 (fax akhanna@perkinscoie.com PLAINTIFFS EDDIE RODRIGUEZ, MILTON GERARD WASHINGTON, BRUCE ELFANT, ALEX SERNA, SANDRA SERNA, BETTY F. LOPEZ, DAVID GONZALEZ, BEATRICE SALOMA, LIONOR SOROLA POHLMAN, ELIZA ALVARADO, JUANITA 13
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 14 of 16 VALDEZ-COX, JOSEY MARTITNEZ, NINA JO BAKER, TRAVIS COUNTY, AND CITY OF AUSTIN David Escamilla Travis County Attorney P.O. Box 1748 Austin, Texas 78767 (512 854-4808 (fax David.escamilla@co.travis.tx.us (Attorney for Plaintiff Travis County Karen Kennard City Attorney P.O. Box 1088 Austin, Texas 78767-1088 (512 974-6490 (fax karen.kennard@ci.austin.tx.us (Attorney for Plaintiff City of Austin Chad W. Dunn Scott Brazil Brazil & Dunn 4201 FM 1960 West Suite 530 Houston, TX 77068 (281580-6362 (fax chad@brazilanddunn.com scott@brazilanddunn.com TEXAS DEMOCRATIC PARTY (TDP, BOYD RICHIE AND GILBERTO HINOJOSA Luis Roberto Vera, Jr. Law Offices of Luis Roberto Vera & Associates, P.C. 111 Soledad Suite 1325 San Antonio, TX 78205-2260 (210 225-2060 (fax lrvlaw@sbcglobal.net Manuel G. Escobar, Jr. 201 W. Poplar San Antonio, TX 78212 (210 212-5653 (fax Escobarm1@aol.com INTERVENORS, LULAC, GABRIEL Y. ROSALES Rolando L. Rios 14
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 15 of 16 Law Offices of Rolando L. Rios The Milam building 115 E. Travis St., Suite 1645 (210 222-2898 (fax rios@rolandorioslaw.com INTERVENORS, CONGRESSMAN HENRY CUELLAR Gary L. Bledsoe Law Offices of Gary L. Bledsoe & Associates 316 West 12th Street, Suite 307 Austin, Texas 78701 (512 322-0840 (fax garybledsoe@sbcglobal.net CONGRESSPERSONS EDDIE BERNICE JOHNSON, SHEILA JACKSON-LEE AND ALEXANDER GREEN, MEMBERS OF THE UNITED STATES CONGRESS; INTERVENORS TEXAS STATE CONFERENCE OF NAACP BRANCHES, HOWARD JEFFERSON, JUANITA WALLACE AND BILL LAWSON; INTERVENORS, TEXAS LEGISLATIVE BLACK CAUCUS John K. Tanner 3743 Military Road NW Washington, DC 20015 Telephone: (202 503-7696 john.k.tanner@gmail.com (Attorney for Texas Legislative Black Caucus Robert Notzon Law Office of Robert S. Notzon 1507 Nueces Street Austin, TX 78701 512-474-9489 (fax Robert@NotzonLaw.com Anita S. Earls Allison J. Riggs Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 (919 323-3942 (fax Anita@southerncoalition.org Allison@southerncoalition.org (Attorneys for TX State Conference NAACP Branches, Juanita Wallace and Bill Lawson Victor L. Goode Assistant General Counsel NAACP 15
Case 5:11-cv-00360-OLG-JES-XR Document 1014 Filed 05/27/14 Page 16 of 16 4805 Mt. Hope Drive Baltimore, MD 21215-3297 (410 358-9359 (fax vgoode@naacpnet.org (Attorney for TX State Conference NAACP Branches T. Christian Herren, Jr. Timothy F. Mellett Bryan Sells Jaye Allison Sitton Daniel J. Freeman Michelle A. Mcleod Erin Velandy Attorneys Voting Section Civil Rights Division U.S. Department of Justice Room 7254 NWB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 daniel.freeman@usdoj.gov, jaye.sitton@usdoj.gov, michelle.mcleod@usdoj.gov Intervenors United States of America /s/ Nina Perales Nina Perales 16