Case 1:11-cv-05632-DLI-RR-GEL Document 489 Filed 08/14/12 Page 1 of 5 PageID #: 11288 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MARK A. FAVORS, et al. Plaintiffs, v. Case: 1:11-cv-05632-DLI-RR-GEL ANDREW M. CUOMO, et al. Defendants. DEFENDANTS RESPONSE TO AUGUST 10, 2012 ORDERS The Senate Majority, Assembly Majority, and Assembly Minority Defendants (collectively, Defendants respectfully submit this Response to the Court s August 10, 2012 Orders, DE 487 and 488. First, as directed by the Court, Defendants provide the following proposed protocol for electronic production of the documents that the Court has ordered produced for in camera inspection (the Documents : Defendants will provide native versions of all Excel and PowerPoint files and all database files for use in connection with redistricting maps. (TIFF images of Excel, PowerPoint, and Maptitude database files would provide the Court with tens of thousands of images of meaningless information. Defendants will provide Bates-stamped, single-page TIFF images of all other documents. Defendants will retain AlphaLit, an electronic discovery vendor, to provide the Court with a stand-alone electronic discovery database containing the TIFF images and native files. The database will be provided to the Court through E- Direct 3.0 a secure, Web-based review platform. Information about E-Direct 3.0 is available at http://alphalit.com/e-direct/. In addition, AlphaLit is available to provide the Court with a demonstration of E-Direct 3.0 via a Web-conference. Second, Defendants respectfully request a short extension of the August 20 deadline for submission of revised privilege logs. The Court s Memorandum Opinion and Order instructs
Case 1:11-cv-05632-DLI-RR-GEL Document 489 Filed 08/14/12 Page 2 of 5 PageID #: 11289 Defendants (1 to reassess [their] assertion of all privileges carefully prior to resubmitting the logs, (p. 69; (2 to reassess whether each document is responsive (p. 44; (3 to provide readily accessible metadata where to do so would not itself reveal privileged or protected information (p. 68, which necessitates a privilege review of the metadata for each document; and (4 to supplement the descriptions of general subject matter on the privilege log (pp. 67-69. Because Plaintiffs broad requests for production encompass a large number of documents over which Defendants have asserted a privilege with nearly 7,000 entries on the Senate Majority s privilege log alone it is not feasible to complete these tasks with the requisite care in less than several weeks, and certainly not in only 10 days. In addition, allowing Defendants the time needed to submit revised privilege logs in accordance with the Court s directives should not affect the current litigation schedule, which in any event could be adjusted if that were to become necessary. Defendants therefore request that the deadline for submission of revised privilege logs be extended until at least August 27, with Defendants permitted thereafter to submit any additional, specific changes that they were unable to make earlier through their best efforts. Third, Defendants respectfully request a one-week extension of the August 17 deadline for producing the Documents, for the following reasons: Because the Assembly Majority and Assembly Minority Defendants are required to produce only the documents in their privilege logs relating to Assembly districts in Nassau County, they are in the process of determining which documents fall into that category. In addition, as instructed by the Court, Defendants have begun carefully rereviewing all of the Documents to determine whether any should be removed from their privilege logs because they are either non-responsive or non-privileged. It would be more efficient for Defendants to produce documents after this review is complete and any documents have been eliminated. Defendants have already begun working with AlphaLit and are informed that it will take the vendor several days to prepare the documents for production. This is due to the high volume of documents and to the facts that the Assembly Minority
Case 1:11-cv-05632-DLI-RR-GEL Document 489 Filed 08/14/12 Page 3 of 5 PageID #: 11290 has retained AlphaLit only this week and AlphaLit needs additional time to process and code the Assembly Minority s documents. If the Court approves the proposed use of AlphaLit s E-Direct 3.0 database, it will take several days for AlphaLit to be retained, to set up the database, and to load the Documents. Defendants therefore request a one-week extension of the deadline for producing the Documents for in camera inspection, until August 24, or, alternatively, an extension until three business days after the due date for submitting the revised privileged logs, so that the produced documents can be consistent with any changes to the documents included on the revised privilege logs. Fourth, in response to the Court s instruction to produce the Documents in both hard copy and electronic format, Defendants note that the hard copy production will be voluminous and would include many pages of data files, including data files for draft redistricting plans that are unintelligible in paper form (and also as TIFF images. The Documents are currently being processed, but Defendants estimate that there would be more than 270,000 pages in a hard copy production, which would fill roughly 95 boxes. The stand-alone database that Defendants are proposing for the Court to use, E-Direct 3.0, will allow Court-designated personnel to download and print selected documents. In light of the difficulties of producing, storing, and working with such a voluminous hard copy production, Defendants submit that it will be less burdensome for the Court to download and print any documents of interest from E-Direct 3.0 instead of retaining a full hard copy production of almost 100 boxes. For these reasons, Defendants respectfully request that they be relieved of producing the Documents to the Court for in camera inspection in hard copy format.
Case 1:11-cv-05632-DLI-RR-GEL Document 489 Filed 08/14/12 Page 4 of 5 PageID #: 11291 Dated: August 14, 2012 Respectfully submitted, /s/ Michael A. Carvin Michael A. Carvin (MC 9266 Louis K. Fisher JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001-2113 (202 879-3939 Todd R. Geremia (TG 4454 JONES DAY 222 East 41st Street New York, NY 10017-6702 (212 326-3939 David Lewis (DL 0037 LEWIS & FIORE 225 Broadway, Suite 3300 New York, NY 10007 (212 285-2290 Attorneys For Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez /s/ C. Daniel Chill C. Daniel Chill (CC 6940 Elaine Reich GRAUBARD MILLER The Chrysler Building 405 Lexington Avenue 19 th Floor New York, New York 10174 (212 818-8800 Attorneys For Defendants Hon. Sheldon Silver, as Speaker of the Assembly of the State of New York and Democratic Members of LATFOR John J. McEneny and Roman Hedges
Case 1:11-cv-05632-DLI-RR-GEL Document 489 Filed 08/14/12 Page 5 of 5 PageID #: 11292 /s/ Kevin M. Lang Kevin M. Lang, Esq. (KL 6431 Donald J. Hillman, Esq. Jennifer K. Harvey, Esq. COUCH WHITE, LLP 540 Broadway P.O. Box 22222 Albany, New York 12201 (518 426-4600 Attorneys For Defendant Brian M. Kolb /s/ Vincent J. Messina Vincent J. Messina, Esq. (VM 9357 Timothy F. Hill, Esq. SINNREICH KOSAKOFF & MESSINA, LLP 267 Carelton Avenue, Suite 301 Central Islip, New York 11722-4501 (631 650-1200 Attorneys For Defendant Robert Oaks