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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE STATE OF TEXAS, Plaintiff vs. ERIC H. HOLDER, JR., in his Official Capacity as Attorney General Of the United States, Defendant (RMC, DST, RLW) Three-Judge Court Case No. 1:12-CV-00128

RESPONSE BY THE STATE OF TEXAS TO ORDER REGARDING SCHEDULING The State of Texas remains ready, willing, and able to work steadfastly toward achieving the goals outlined in the Courts proposed order. Toward that end, today the State completed production to the Department of Justice and Intervenors of all requested databases. Going forward, the State can and will

comply with all requirements necessary to get this case to trial by July 9, 2012, subject only to the reasonable limitations detailed below.1 At this point in the proceedings, one thing is clear: All parties should be required to expedite remaining discovery and move promptly toward trial on July 9. As explained below, the State is fully prepared to do its part by complying with the timelines proposed by the Court to the extent compliance is reasonably possible.
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The State respectfully disagrees with the Courts view that discovery delays are the fault of only one party to this litigation. But with the July 9 trial date in jeopardy and the possibility looming that Texas will not be able to enforce its duly enacted voter identification law in time for the November 2012 elections, the focus should be on doing everything possible to move this case toward judgment.

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Because so many aspects of discovery are outside the Texas Attorney Generals control and because of the inherent vagaries of litigation, counsel for the State cannot certify under oath that future events in this process will absolutely take place. Many of the future events about which the Court has asked counsel to make certifications are subject to the intervening actions of people and agencies outside counsels controlincluding the opposing parties. While we cannot certify under oath that the discovery process will play out precisely as envisioned in the Courts order, we can assure the Court that we will do everything in our power to comply with the vast majority of the Courts proposal. Some parts of the

Courts proposal, however, cannot be complied with, such as the requirement that counsel for the State preemptively waive privileges that do not belong to counsel and that have not yet been asserted. Accordingly, the State urges the Court to reconsider the portions of its proposal that cannot reasonably be complied with, which are identified below. In addition, the State asks that this Court consider modifying the proposed terms so that both the State and all Defendants are required to do everything in their power to move toward a July 9 trial. If relatively minor adjustments are made to the Courts proposal, the State can and will comply with it, and the July 9 trial date can and will be preserved. I. The State Will Do Everything in Its Power To Comply With the Achievable Aspects of the Courts Scheduling Proposal. At the time of this filing, the State has complied with paragraph 2 of the Courts proposal by producing all requested databases to the DOJ and Intervenors 2

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in an agreed-upon format.

The State initially produced these databases to the And since

United States on March 30, 2012 and to Intervenors on April 13, 2012.

the Defendants request for supplemental database fields, the State has worked tirelessly to obtain these complex databases from the relevant state agencies and then to produce these sensitive materials as quickly as possible. As discussed

below, however, the State cannot comply with the second part of paragraph 2 because it is contingent on events outside the States control, including the actions of opposing counsel. Texas will comply with paragraph 3 of the Courts proposal by completing production of non-privileged documents other than those gathered pursuant to electronic search terms no later than May 11, 2012. Texas will make every effort possible to comply with paragraph 4 of the Courts proposal by completing production of electronic-search-term discovery by May 21, 2012. Because the State received modified search terms from Defendants only today, it has not been able to run searches to determine the volume of data that must be reviewed and produced by this deadline. Assuming that the modified search terms substantially reduce the number of e-mails that must be reviewed (which is the purpose of running the modified terms), the State should be able to comply with the May 21 deadline. As soon as the State has done the analysis necessary to know with certainty that the May 21 deadline is achievable, the State will inform the Court of that fact.

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Texas has already complied with Paragraph 5 of the Courts proposal by agreeingat the instruction of the courtto forego subpoenas for non-party witnesses such as legislators and legislative and executive staff, without waiving any privileges or appellate rights. By contrast, the United States has informed the Court that federal agencies will not produce data regarding passports, citizenship certificates, or military identification without a subpoena. See, e.g., See Transcript of Telephonic Hearing (April 30, 2012) at 12:1011 ([U]nder the rules its our view that Texas must serve subpoenas on all five of these non-party agencies.).2 The State respectfully requests that the Court reject the Department of Justices unsupportable contention that federal executive branch agencies are non-parties here. All parties should be equally required by the Court to forego subpoenas, as the State has already done. Texas has already complied with Paragraph 7 of the Courts proposal by making legislators available for depositions the week of May 14. While we are currently working with counsel for the Defendants to set firm dates for all these

Texas sued Attorney General Eric Holder in his official capacity as an agent of the United States. As a result, the real party in interest is the United States, not Mr. Holder. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165 (1985) (Official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent.) (quoting Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690, n.55 (1978)). Moreover, the Department of Justice has consistently recognized this fact by referring to the United States as the defendant in this case. See, e.g., Letter from Jennifer L. Maranzano to Jonathan F. Mitchell (March 19, 2012) (We write to provide you with a preliminary list of members of the Texas legislature whom the United States will seek to depose . . . .); United States and Defendant-Intervenors Status Report (Doc. 29); United States Motion for a Protective Order (Doc. 44); United States Statement in Support of its Request to Depose and Seek Documents from State Legislators and Staff (Doc. 69); Transcript of Telephonic Hearing (March 27, 2012) at 4:67 (This is Elizabeth Westfall for the United States.); Transcript of Telephonic Hearing (April 3, 2012) at 33:1617 (Congress has made the United States the statutory defendants in this case.).

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depositions, the witnesses have been made available by the State for depositions next week. II. In Response to Defendant-Intervenors Expansive Discovery Requests, the State Has Worked Diligently to Respond in a Timely Fashion. So far, the State has turned over all non-privileged, responsive documents (except for documents gathered from searches of over 120 e-mail accounts) requested from the Texas Secretary of State, DPS, 9 legislators, Texas Legislative Council, the Lieutenant Governors office, and the Governors office. It has also provided all transcripts from committee hearings, floor debates, and journals. Although many of these hearings and debates are not transcribed, the audio recordings are available for public consumption. The State nevertheless has, at its own expense, transcribed many of these hearings. In all, the State has reviewed and logged over 90,000 pages of documents, and it has produced 32,499 pages of non-privileged, responsive documents. The State has also produced three witnesses for deposition under Rule 30(b)(6) and has several more deponents scheduled for next week. The State has produced, and now supplemented, the States DPS, CHL, and T.E.A.M. databases. In response to similar requests made by the State, the United States has acknowledged that the production of massive databases is complex, outside its expertise, and fraught with confidentiality concerns. See, e.g., Transcript of Telephonic Hearing (April 30, 2012) at 13:1619 ([T]here are tremendous complexities from the standpoint of having databases that are not meant to interact

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with each other, interacting with each other in discovery in this matter.); id. at 12:1216 ([N]either the Attorney General nor the Department of Justice is an expert in the maintenance or IT system that supports the documents, databases or ESI that has been requested by Texas of those five agencies.); id. at 12:1719 (We are also not in a position at this time to represent to the Court of all of the many confidentiality related considerations that each agency must raise . . . .). Texas recognizes the difficulties articulated by DOJ because they apply equally to the Texas Attorney Generals own efforts to produce the DLS, CHL, and T.E.A.M. databases, which contain tens of millions of records and include a wide variety of sensitive information. Given these difficulties, it is undeniable that the State has moved expeditiously to produce the databases requested by the DefendantIntervenors. This is particularly evident when compared to DOJs response to the States requests for information. DOJ made its initial request for the DPS, CHL, and

T.E.A.M. databases on March 20, 2012. Within 10 days, the State had delivered all the fields in each of the three databases that it believed were necessary for DOJ to conduct its analysis. Within 14 days of its initial request, the State provided

complete manuals to DOJ that described in detail the DPS and CHL databases. After reviewing the databases and the manuals, DOJ determined it wanted additional data fields. To facilitate the process, Texas arranged teleconferences

between necessary IT staff from SOS and DPS to meet with Defendant Intervenors. On May 1, 2012, the parties settled on additional fields that would be produced. By

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May 4 and May 9, the State had produced to DOJ new versions of all three databases containing the additional fields requested. In contrast, nearly 30 days have passed since Texas made its initial request for information to the DOJ regarding holders of military identification, citizenship certificates, and passports. That request was made on April 13. As of today, the United States has not provided any information about the federal agency databases containing records of Texans who hold a U.S. passport, U.S. military identification, or a U.S. citizenship certificate, or indicated when it will produce the information needed by the State of Texas. Nor had it investigated the States request as of April 30. See, e.g., Transcript of Telephonic Hearing (April 30, 2012) at 22:__ (THE

COURT: You dont know do you, Ms. Westfall, as to the nature of the records maintained by HHS or . . . Social Security . . . . MS. WESTFALL: I dont know, Your Honor, the nature of the records.). Given the admitted complexities involved in producing such complicated and sensitive data, there can be no doubt that the State acted cooperatively and expeditiously in producing this information. III. The Court Should Adjust The Aspects of Its Proposal With Which the State Cannot Reasonably Comply. As explained above, the State is committed to complying with the majority of the Courts proposal as all parties work diligently toward the July 9, 2012 trial date. Counsel for the State cannot, however, make certifications under oath about future events that are not entirely in counsels control. Most notably, the State cannot control the behavior of the Department of Justice or the Intervenors, both of whom have expressed a desire to delay these proceedings. 7

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Paragraph 2 of the Courts proposal asks the State to make certifications about matters that are almost entirely in the control of the Defendants. The State has already produced the agreed-upon databases. But the State cannot at this time know what materials Defendants will later consider necessary for purposes of comparing the data in these databases against each other or necessary to render the information reasonably useable to undertake an analysis of those data. As Texas reads the Courts order, paragraph 2 would require the State to make a forward-looking guarantee that Defendants will not at a later date determine that more data is necessary for their analysis or that additional information is necessary to make the existing data reasonably usable. The United States, for example,

recently informed Texas that it has not completed its review of the three databases and that it reserves the right to bring additional deficiencies to the Courts attention. See Letter from Elizabeth S. Westfall to Patrick K. Sweeten (May 7, 2012) (Exh. 1). Given the size and complexity of the databases, Texas cannot As currently

guarantee that any production will be entirely free from error.

written, the Courts proposal seems to give the Department of Justice and the intervenors complete discretion to define the standards and therefore to judge whether Texas has complied. While Texas believes that it has complied with the Courts orders and substantially satisfied the Defendants requests for additional data, it cannot represent to the Court that the United States and the Intervenors will not later allege some deficiency. For this reason, Texas cannot comply with the second portion of paragraph 2.

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Counsel for the State also cannot comply with paragraph 6 of the Courts proposal. The Court has asked Texas to certify that it will not assert any new privileges as to any documents or witnesses other than those already represented to this Court. While Texas has no current plans to raise any new privileges, Texas cannot make this certification for two reasons. First, Texas cannot predict any and all future requests that DOJ or the Defendant-Intervenors might make with respect to documents, nor can Texas predict any and all questions that might be asked of witnesses in depositions or at trial. Because Texas is not in a position to know at this time what might arise over the course of discovery or at trial, it cannot make a blanket waiver of any new privileges. Second, Texas (and the Office of the Attorney General) does not hold all potential privileges that could become at issue; the potential witnesses hold many of these privileges. Thus, even if now was an appropriate time to effect a blanket waiver of all future privileges, the Office of the Attorney General could not unilaterally do so. Finally, the Courts Proposal imposes a May 21, 2012 deadline for filing of discovery motions with a corresponding reply date of May 24th, 2012. To date, the State of Texas has several outstanding discovery requests to the United States and Intervenors. Their discovery responses remain incomplete and have been the

subject of follow-up correspondence between the parties. These conversations have primarily addressed the multiple federal databases the State of Texas first requested from the United States on April 13, 2012. The imposition of a discovery motion deadline of May 21, 2012, coupled with the multiple unresolved discovery

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issues due to the United States and Intervenors unwillingness to promptly turn over information, would limit the ability of the State of Texas to obtain full relevant discovery from Defendants. Conclusion The State of Texas stands ready to comply fully with all achievable aspects of the Courts proposal. Accordingly, the State respectfully requests that the Courts proposal be modified as follows: Remove the requirement that counsel personally certify under oath that future events outside of counsels control will take place; Amend paragraph 2 to require the State to respond with all reasonable diligence and speed when and if the DOJ and Intervenors identify deficiencies in the databases that have been timely produced by the State; Remove Paragraph 6; Add a requirement that the Department of Justice and Intervenors forego demands for subpoenas of non-party agencies and produce all relevant databases and other discovery to the State in a timeframe that will allow the State to review the production and bring any necessary discovery motions.

Dated: May 9, 2012

Respectfully submitted. FOR THE PLAINTIFF: GREG ABBOTT Attorney General of Texas 10

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DANIEL T. HODGE First Assistant Attorney General JONATHAN F. MITCHELL Solicitor General /s/Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General ADAM W. ASTON Principal Deputy Solicitor General ARTHUR C. DANDREA Assistant Solicitor General MATTHEW H. FREDERICK Assistant Attorney General Office of the Attorney General P.O. Box 12548, Capitol Station 209 W. 14th Street Austin, Texas 78701 (512) 936-1695 Attorneys for the State of Texas

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CERTIFICATE OF SERVICE I certify that on May 9, 2012, I served the foregoing via CM/ECF or e-mail on the following counsel of record: Elizabeth Stewart Westfall Daniel J. Freeman Bruce I. Gear Jennifer Lynn Maranzano U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC 20530 (202) 305-7766/Fax: (202) 307-3961 Email: elizabeth.westfall@usdoj.gov Email: daniel.freeman@usdoj.gov Email: bruce.gear@usdoj.gov Email: jennifer.maranzano@usdoj.gov Counsel for the United States Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX 77068 (281) 580-6310 Email: chad@brazilanddunn.com J. GERALD HEBERT 191 Somerville Street, #405 Alexandria, VA 22304 Telephone: 703-628-4673 Email: hebert@voterlaw.com Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasy, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon JOHN K. TANNER 3743 Military Road, NW Washington, DC 20015 202-503-7696 Email: john.k.tanner@gmail.com

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MOFFATT LAUGHLIN McDONALD NANCY GBANA ABUDU KATIE OCONNOR American Civil Liberties Union Foundation, Inc. 230 Peachtree Street, NW Suite 1440 Atlanta, Georgia 30303-1227 (404) 523-2721/(404) 653-0331 (fax) Email: lmcdonald@aclu.org Email: nabudu@aclu.org Email: koconnor@aclu.org LISA GRAYBILL REBECCA ROBERTSON American Civil Liberties Union Foundation of Texas 1500 McGowan Street Houston, Texas 77004 (713) 942-8146 Email: lgraybill@aclutx.org Email: rrobertson@aclutx.org PENDA HAIR KUMIKI GIBSON Advancement Project 1220 L Street, NW, Suite 850 Washington, DC 20005 (202) 728-9557 Email: phair@advancementproject.org Email: kgibson@advancementproject.org Counsel for Texas Legislative Black Caucus, the League of Women Voters of Texas, the Justice Seekers, Reverend Peter Johnson, Reverend Ronald Wright and Donald Wright Mark A. Posner LAWYERS' COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW, Suite 400 Washington, DC 20005 (202) 307-1388 Email: mposner@lawyerscommittee.org

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Ezra D. Rosenberg Pro Hac Vice Michelle Hart Yeary DECHERT LLP 902 Carnegie Center, Suite 500 Princeton, NJ 08540 (609) 955-3200/Fax: (609) 955-3259 Email: ezra.rosenberg@dechert.com Email: michelle.yeary@dechert.com Ian Vandewalker Pro Hac Vice Myrna Perez Wendy Weiser THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 Tel: (646) 292-8362 Fax: (212) 463-7308 Email: ian.vandewalker@nyu.edu Email: myrna.perez@nyu.edu Email: wendy.weiser@nyu.edu Myrna Perez Pro Hac Vice Ian Vandewalker Pro Hac Vice THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 (646) 292-8329 / (212)463-7308 (fax) Email: myrna.perez@nyu.edu Email: ian.vandewalker@nyu.edu Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, Maryland 21215-3297 (410) 580-5120 (phone) Email: vgoode@naacpnet.org Robert S. Notzon The Law Office of Robert Notzon 1507NuecesSt. Austin, Texas 78701 (512) 474.7563 (phone) Email: Robert@notzonlaw.com 14

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Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 98209 (210) 392-2856 (phone) Email: garzapalm@aol.com Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives Ryan Haygood Pro Hac Vice Natasha M. Korgaonkar Leah C. Aden Debo P. Adegbile Dale E. Ho NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York 10013 (212) 965-2200 / (212) 226-7592 (fax) Email: rhaygood@naacpldf.org Email: nkorgaonkar@naacpldf.org Email: laden@naacpldf.org Email: dho@naacpldf.org Email: dadegbile@naacpldf.org Email: eboddie@naacpldf.org FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Douglas H. Flaum Michael B. de Leeuw One New York Plaza New York, New York 10004-1980 (212) 859-8000 Email: douglas.flaum@friedfrank.com Email: michael.deleeuw@friedfrank.com Email: adam.harris@friedfrank.com Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams

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Nina Perales Amy Pedersen MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476 / 210-224-5382 (fax) Email: nperales@maldef.org Email: apedersen@maldef.org Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez

/s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE STATE OF TEXAS, Plaintiff vs. ERIC H. HOLDER, JR., in his Official Capacity as Attorney General Of the United States, Defendant (RMC, DST, RLW) Three-Judge Court Case No. 1:12-CV-00128

RESPONSE BY THE STATE OF TEXAS TO PROPOSED TERMS

EXHIBIT 1
May 7, 2012 Letter from Elizabeth S. Westfall to Patrick Sweeten

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