STATE DEFENDANTS' REPLY BRIEF IN SUPPORT OF EMERGENCY MOTION by jog13800

VIEWS: 10 PAGES: 9

									                 IN THE UNITED STATES DISTRICT COURT
                    NORTHERN DISTRICT OF GEORGIA
                            ROME DIVISION

COMMON CAUSE / GEORGIA,                 )
et al.,                                 )
                                        )
             Plaintiffs,                )         CIVIL ACTION NO.
        v.                              )         4:05-CV-201-HLM
                                        )
MS. EVON BILLUPS, Superintendent )
of Elections for the Board of Elections )
and Voter Registration for Floyd County )
and the City of Rome, Georgia,          )
et al.,                                 )
                                        )
             Defendants,                )
                                        )
        and                             )
                                        )
STATE ELECTION BOARD,                   )
                                        )
             Defendant-Intervenor.      )

           STATE DEFENDANTS’ REPLY BRIEF IN SUPPORT
          OF EMERGENCY MOTION FOR PROTECTIVE ORDER

      COME NOW KAREN HANDEL AND THE STATE ELECTION BOARD

(“State Defendants”), by and through their counsel of record, the Attorney General

of Georgia, and file their Response to Plaintiffs’ Response to Defendants’ Motion

for Emergency Protective Order, showing the Court as follows:




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      By their response, it is clear that Plaintiffs previously failed to – and continue

to fail to – provide the information they are required to provide under Fed.R.Civ. P.

26(a)(2)(B) if they intend to use Dr. Hood as an expert. Until Plaintiffs provide that

information and State Defendants have a reasonable opportunity both to review it

and to take the discovery deposition of Dr. Hood, Plaintiffs should not be permitted

to take the evidentiary deposition of Dr. Hood.

      Plaintiffs’ initial argument is that State Defendants cannot complain about the

unreasonableness of the Hood deposition schedule because State Defendants created

the time crunch; that is flatly wrong. First, State Defendants never asked that the

trial take place in two weeks and certainly did not insist that Plaintiffs attempt to

have the September elections enjoined. State Defendants simply requested that the

stay be lifted and if another preliminary injunction motion were considered, any

hearing on that motion be consolidated with the trial on the merits. Considering that

there have been three previous hearings on preliminary injunctions, that request was

reasonable.

      More importantly, the time pressure related to Dr. Hood’s deposition is due

solely to Plaintiffs’ apparent desire to use Dr. Hood as an expert at trial without

complying with their related obligations. A week ago, Plaintiffs first produced a

paper by Dr. Hood and a summary analysis of 2002 absentee ballots and notified


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State Defendants that Plaintiffs intended to call Dr. Hood as an expert. To the

extent that the paper or the summary was intended to be a report, neither was signed

by Dr. Hood nor did Plaintiffs produce any of the accompanying information, as

required by Fed.R.Civ.P. 26(a)(2)(B). As of late last night, Plaintiffs had produced

only the paper, the summary, a curriculum vitae of Dr. Hood and some summaries

of data.

      When State Defendants requested the data used by Dr. Hood, which Plaintiffs

are obligated to provide, Plaintiffs refused to provide it. Contrary to Plaintiffs’

assertion in their Response, Plaintiffs did not notify State Defendants that they had

requested the information from Dr. Hood but did not receive it from him.

Plaintiffs’ verbatim response to State Defendants was: “We do not have the hard

data on which Dr. Hood's conclusions are based. You will have to ask him for it.”

Exhibit 1, email from Ed Hine to Anne Lewis, dated 8/14/07 (emphasis added). In

any event, the obligation rests with the Plaintiffs to provide that information, not

State Defendants to track it down.

      The fact that Dr. Hood does not “want” to release the data is a problem for

Plaintiffs. If Plaintiffs intend to use Dr. Hood and his article and summary analysis

or any of the data compilations (which Plaintiffs first provided with their Response




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to State Defendants’ motion) or other data that Dr. Hood relied upon, he must

provide that data. Fed.R.Civ.P. 26(a)(2)(B).

      In addition to failing to provide required data, Plaintiffs told State Defendants

yesterday morning that a “report” from Dr. Hood would be sent later that morning.

Exh. 1 (“Anne, you have all the reports from Dr. Hood save one which I will send

this mornig [sic]”). When State Defendants filed their Motion for Protective Order

late yesterday afternoon, neither that promised report nor most of the other

information Plaintiffs are obligated to provide had been received.

      Although Plaintiffs finally provided some of the information required under

Rule 26 in their Response filed after 10:00 p.m. last night, that information is not all

of the information required and was not produced in a timely manner which would

allow State Defendants a fair opportunity to prepare for the discovery deposition.

Moreover, Plaintiffs’ suggestion that State Defendants somehow had the

information on Dr. Hood’s fees is confused. The information that Plaintiffs are

required to provide relates to what Dr. Hood may have been paid by Plaintiffs for

his testimony and work. Plaintiffs’ notice to State Defendants that Dr. Hood

charges $150 an hour – in the context of an email about depositions – does not

answer the question about how much Dr. Hood may have been paid by Plaintiffs.




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Plaintiffs have now advised that they are paying him by the hour and so far have

paid $300 for two hours’ work.

      With respect to the discussions of counsel regarding Dr. Hood’s deposition,

Plaintiffs leave out two very important facts. First, Plaintiffs proposed to take the

evidentiary deposition of Dr. Hood on Thursday, August 16, 2007 at 11:00 a.m. and

to allow a discovery deposition for the 90 minutes immediately before Dr. Hood

gave his trial testimony. State Defendants did not agree to that proposal, noting the

need to prepare for an evidentiary deposition. Initially, Plaintiffs’ counsel, Mr.

Hine, inexplicably contended that State Defendants were not entitled to take a

discovery deposition of Dr. Hood, an expert whose testimony Plaintiffs intended to

introduce at trial. Ultimately, Mr. Hine agreed to see if the deposition could be

taken the day before an evidentiary deposition, to find out if Wednesday would

work and to get back in touch with State Defendants.

      Instead of doing that, Mr. Hine unilaterally issued a Notice of Deposition for

the evidentiary deposition of Dr. Hood for Thursday at 9:30 a.m. and emailed State

Defendants that they could depose Dr. Hood at 2:00 p.m. on Wednesday. While that

might ordinarily be agreeable because of the approaching trial, it is not in this case.

Plaintiffs produced new data compilations less than 24 hours before the proposed

discovery deposition time, and although Plaintiffs apparently intend to produce a


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report by Dr. Hood, State Defendants have yet to receive it. More importantly,

Plaintiffs still have failed to produce the data supporting the paper, the summary or

the newest data compilations; Plaintiffs’ conclusory statement that they have

complied with all requirements of Fed.R.Civ.P. 26(b)(4)(a) is simply incorrect.

They have not provided the most basic information – the data on which Dr. Hood

relied for his paper or summary or which reflected in his data compilations.

      Contrary to Plaintiffs’ rhetoric, State Defendants are not engaged in a

conspiracy to prevent Dr. Hood from testifying. However, at this point, Dr. Hood’s

testimony should not be allowed. Plaintiffs have not provided the required

information nor apparently a report on which they intend to rely. Even if Plaintiffs

provided that now, State Defendants do not have time to depose Dr. Hood and

secure their own expert prior to trial.

      However, if the Court allows Plaintiffs to use Dr. Hood, State Defendants are

entitled to discover all information on which he bases his conclusions. The data on

which he relies is the most basic and critical information on which he bases any

opinion he may have, as well as the summary of his opinions, referred to in

paragraph 11 of Plaintiffs’ Response. Plaintiffs must produce it to State Defendants.

If Dr. Hood prefers not to provide it to Plaintiffs to be produced to State Defendants,

that is his prerogative, but Plaintiffs cannot introduce Dr. Hood’s testimony at trial.


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       For these reasons, State Defendants respectfully request that a protective

order be entered prohibiting Plaintiffs from taking the evidentiary deposition until

Dr. Hood’s report and all underlying data on which he bases any opinion are

provided and State Defendants have a reasonable opportunity to depose Dr. Hood.

      This 15th day of August, 2007.

                                                Respectfully submitted,

                                                THURBERT E. BAKER
                                                Attorney General
                                                Georgia Bar No. 033887

Department of Law                               DENNIS R. DUNN
State of Georgia                                Deputy Attorney General
40 Capitol Square, S.W.                         Georgia Bar No. 234098
Atlanta, GA 30334-1300
Telephone: 404/656-7298                         STEFAN E. RITTER
Facsimile: 404/657-9932                         Senior Assistant Attorney General
ddunn@law.ga.gov                                Georgia Bar No. 606950


Troutman Sanders LLP                            /s/ Mark H. Cohen
5200 Bank of America Plaza                      MARK H. COHEN
600 Peachtree Street, N.E.                      Special Assistant Attorney General
Atlanta, GA 30308                               Georgia Bar No. 174567
Telephone: 404/885-3597
Facsimile: 404/962-6753
mark.cohen@troutmansanders.com




                         [signatures continued on following page]



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Strickland Brockington Lewis LLP            /s/ Anne W. Lewis
Midtown Proscenium, Suite 2000              ANNE W. LEWIS
1170 Peachtree Street, N.E.                 Special Assistant Attorney General
Atlanta, GA 30309                           Georgia Bar No. 737490
Telephone: 678/347-2200
Facsimile: 678-347-2210
awl@sbllaw.net




                         Local Rule 7.1D Certification

      By signature below, counsel certifies that the foregoing document was

prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1C.


                                            /s/ Anne W. Lewis
                                            ANNE W. LEWIS




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                   CERTIFICATE OF SERVICE

      The undersigned hereby certifies that the within and foregoing
STATE DEFENDANTS’ REPLY BRIEF IN SUPPORT OF EMERGENCY
MOTION FOR PROTECTIVE ORDER was electronically filed with the
Clerk of Court using the CM/ECF system, which will automatically send
email notification of such filing to counsel of record.

     This 15th day of August, 2007.



                                          /s/ Anne W. Lewis
                                          ANNE W. LEWIS




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