UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

. . . . . . . . . . . . . . . . 

OHIO A. PHILIP RANDOLPH . Case No. 1:18-cv-357 

INSTITUTE, et al., . 

. Preliminary Pretrial 

Plaintiffs, . Conference

. 

 - v - . 

. Tuesday, July 10, 2018 

GOVERNOR JOHN R. KASICH, . 4:02 PM 

et al., . 

. 

Defendants. . Cincinnati, Ohio 

. . . . . . . . . . . . . . . . 

- - - 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE 

APPEARANCES: 

For the Plaintiffs: 

FREDA J. LEVENSON, ESQ. THERESA J. LEE, ESQ. 

(present by telephone) EMILY R. ZHANG, ESQ. 

American Civil Liberties Union (present by telephone) 

 of Ohio Foundation Americal Civil Liberties Union

4506 Chester Avenue Foundation 

Cleveland, Ohio 44103 125 Broad Street, 18th Floor 

New York, New York 10004 

ROBERT D. FRAM, Esq. MICHAEL C. BAKER, ESQ. 

(present by telephone) (present by telephone) 

Covington & Burling LLP Covington & Burling LLP 

One Front Street, 35th Floor One CityCenter 

San Francisco, California 94111 850 Tenth Street, NW 

Washington, DC 20001 

For the Defendants Ryan Smith and Larry Obhof: 

PHILLIP J. STRACH, ESQ. 

(present by telephone) 

Ogletree, Deakins, Nash, Smoak & Stewart, 

 P.C. 

4208 Six Forks Road, Suite 1100 

Raleigh, North Carolina 27609 

Proceedings recorded by stenotype; transcript

produced by computer-aided transcription.

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APPEARANCES (Continued): 

For the Defendants Governor John Kasich, Secretary of State Jon 

Husted, Ryan Smith and Larry Obhof: 

STEVEN T. VOIGT, ESQ. 

NICOLE M. KOPPITCH, ESQ. 

(present by telephone) 

Ohio Attorney General's Office 

Constitutional Offices Section 

30 East Broad Street, 16th Floor 

Columbus, Ohio 43215 

Law Clerk: Jeremy D. Smith, Esq. 

Court Reporter: Luke T. Lavin, RDR, CRR 

Potter Stewart U.S. Courthouse 

100 East Fifth Street, Room 103 

Cincinnati, Ohio 45202 

Telephone: (513) 564-7500 

- - - 

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 P R O C E E D I N G S 

(In chambers at 4:02 PM.)

THE COURT: Good afternoon. This is Judge Timothy

Black on the record on the civil case of Ohio A. Philip

Randolph Institute, et al. versus Kasich, et al. And I

understand the caption is going to change, but we are set for

preliminary pretrial conference by phone. It's 4:02. I was

told that there were six people on the line beyond me. I heard

five beep in. We may be missing somebody.

But let's get established, enter appearances, and then I

want to make an opening statement and then I'll hear from all

of you in turn.

So on behalf of plaintiff, lead counsel?

MS. LEVENSON: Good afternoon, Judge.

THE COURT: Yes.

MS. LEVENSON: Excuse me. I'm sorry.

THE COURT: No. Go ahead.

MS. LEVENSON: Thank you. I thought that was an

invitation to speak.

Good afternoon. This is Freda Levenson --

THE COURT: Yes.

MS. LEVENSON: -- trial attorney for plaintiff.

MS. LEE: You also have Theresa Lee and Emily Zhang

from the ACLU, also for plaintiff.

THE COURT: Very well. Bear with me as I check people

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off. Ms. Zhang and?

MS. LEE: Lee.

THE COURT: Very well. Got it.

Okay. Additional plaintiffs' counsel? 

MR. FRAM: Robert Fram, Covington and Burling, for

plaintiffs.

THE COURT: Mr. Fram. 

MR. BAKER: And Michael Baker, Covington and Burling

as well.

THE COURT: Very well. And anybody else on the line

who represents plaintiff?

(No response.)

THE COURT: So, Ms. Levenson, the last time around I

believe you introduced me to Mr. Fram and he was going to be on

the laboring oar. Who is going to be the laboring oar today,

Ms. Levenson, on behalf of plaintiff?

MS. LEVENSON: It's my turn today, Judge.

THE COURT: Well, brace yourself. I think you'll get

through it.

MS. LEVENSON: Okay. Thank you.

THE COURT: That was a joke. You'll learn to live

with me.

Do we have counsel on the line for defendants? And I don't

know how to direct the entries of appearance, but let me lay it

off on you. Do we have lead counsel for defendants on the

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line?

MR. STRACH: Good afternoon, Your Honor. This is Phil

Strach. I'm with the Ogletree, Deakins law firm in Raleigh,

North Carolina. I will be representing the legislative

defendants: Speaker Smith and President Obhof.

Unfortunately, we were retained last week, and we have been

trying to get our certificate of good standing so we could file

a pro hac vice motion with the Court. We are literally finally

getting that certificate this afternoon, and so we will be

filing very soon a pro hac vice motion. But when we're in the

case, Your Honor, we will -- we will likely be taking the

laboring oar on most of these calls.

THE COURT: Very well. Thank you for speaking up.

And I was forewarned that that's where we are, and I regret I

didn't write your name down. You're going to represent the

legislative defendants Smith and Obhof. And what was your

name, sir?

MR. STRACH: Phil, P-h-i-l, Strach, S-t-r-a-c-h.

THE COURT: And somebody from your law firm is on the

line with you?

MR. STRACH: It's just me. And then I believe we have

someone from the attorney general's office.

THE COURT: Very well. Welcome aboard. Did you have

trouble finding your certificate of good standing from the

highest state court in your state?

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MR. STRACH: You know, what they do they is they farm

that out to the state Bar, apparently, and they have a

bureaucratic process they follow, which I got caught up in,

unfortunately.

THE COURT: Well, it's no problem from this Judge's

perspective. I was just tickling you the way I poked Ms.

Levenson.

All right. So we've got lawyers on the line from Ohio

attorney general's office no doubt?

MR. VOIGT: Yes, Your Honor. This is Steve Voigt and

Nicole Koppitch, and we represent the secretary of state and

the governor, as well as I will be local counsel for the

legislative defendants.

THE COURT: Great. I understand.

On the other hand, we've got a motion pending for a Second

Amended Complaint that nobody objects to, and I thought that

plaintiffs were dropping the governor. Is that right from

plaintiffs' perspective, Ms. Levenson?

MS. LEVENSON: Yes, that's correct, Your Honor.

THE COURT: And you're aware of that, Mr. Voigt?

MR. VOIGT: Yes, and we consent.

THE COURT: All right. So you're going to end up

representing the secretary of state and being local counsel for

Mr. Strach on the additional defendants?

MR. VOIGT: Yes, Your Honor.

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THE COURT: Okay. So you're not going to represent

the governor, because he's not going to be a party; right?

MR. VOIGT: That's correct.

THE COURT: Okay.

Do we have additional counsel on the line on behalf of any

defendant?

(No response.)

THE COURT: Okay. It sounds like we have a quorum.

Bear with me. Let me make a brief statement, and then I'll

hear from you all in turn.

We've received your Rule 26(f) report. It's really

helpful. It was filed on July 6th. Today is July 10. In the

spirit of full disclosure, I had understood that the plaintiff

was asking to start trial February 4 and run it through -- bear

with me -- two weeks starting February 4. And so I checked

with the court, the judges on this case, and got them to be

available then, and now your proposed calendar talks about a

trial commencing February 18. I was struck by how compacted

even that calendar was.

But alas and behold, one of the three judges is not

available February 20 to March 1, and we can't do anything

about that. So we're looking at two weeks in March or April,

unless you want to back up and go back to your original

proposal and start February 4 to the 15th. And all of this

planning is based upon the assumption that this is a two-week

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trial, ten days of trial and not an 11th day. If it's an 11th

day, then we're going to get into scheduling issues.

I don't know if we'll complete the trial calendar today,

but you need to understand that the three judges are eager to

be responsive to you and get this teed up and tried timely. We

just can't do it February 20 through March 1.

But I want to walk through the calendar with you and see if

we can pick a trial, a two-week trial date block today or if

you need to back up and check your clients' availability, and

we'll talk through the weeks that are available. But I want to

talk through everything else that's here as well.

So before we get started, Ms. Levenson, what do you make of

the notion the Court's not available February 20 to March 1 and

would be available any two weeks in March and April and/or the

weeks of February 4 to 15, I think it is? What do you make of

that?

MS. LEVENSON: Yeah. Thank you, Judge.

We have to really think of the ramifications of having a

trial later. You didn't indicate -- and we appreciated that

you felt a February trial was appropriate. And, of course, we

feel that it's necessary given the timetable for the 2020

election and the time it takes to get to a final resolution.

And we did obviously work, you know, hard and successfully to

come to an agreement on a schedule reflected here that gets us

to a February trial date, but we didn't operate with the

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understanding that it was the 4th. So maybe we should have the

opportunity to go back and aim for that date if we can find a

way to squeeze out two weeks from the schedule.

THE COURT: And are you confident that this will be

merely two weeks of trial and if we start it on February 4,

Monday, you're done on Friday, the 15th?

MS. LEVENSON: We had estimated that, Judge, and we

certainly would endeavor to do that, to establish foundations

and admissibility for needed documents, eliminate the need to

have any unnecessary testimony and try to confine it to the --

and hopefully definitely confine it to the two-week period.

THE COURT: Well, if we get into scheduling this for a

two-week period, we're going to have to hold you to that,

because the Court's not available February 20 on, and that

would only give us 18 and 19 to finish up the trial that starts

on the 4th.

So if I hear from everybody that, yeah, this is ten days,

well, then we're going to set it for ten days and it's going to

run ten days, and at the end of the tenth day we're going to

adjourn because the judges won't be available thereafter.

We'll be able to spend a bunch of time coordinating how we're

going to get the evidence in in those days, perhaps even with a

timed trial presentation of some sort.

But what I'm hearing from the plaintiff is you can't wait

till March?

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MS. LEVENSON: I think that February is close. What

we can't control is how long a proceeding in the Supreme Court

would take, and of course the case almost inevitably would end

up in the Supreme Court.

THE COURT: And we need some time to reach and render

a decision. I'm nervous about trying to cram it into February

4 given -- now that you've laid out what's there, I thought it

was a major crunch, push for getting ready on the 18th, because

you're talking about pounding chambers with a bunch of motions

and then rolling into trial, and, you know, we're going to need

some time.

I could guarantee that we start March 4 and have it done

March 15, and I guarantee you that these three judges are going

to jump on it and turn it around, but I'm apprehensive about

February 4 based on what you briefed out. I got the Court

available then but learned, when I saw this, that one of the

judges simply cannot do the 20th through the 1st. So we're

going to need to think about that.

Before I come back to plaintiff, what's the defendants'

seat-of-the-pants reaction to the threshold calendaring issue

of trial date, Mr. Strach? 

MR. STRACH: Umm --

THE COURT: Go ahead. 

MR. STRACH: I'm sorry, Your Honor. This is Phil

Strach.

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Well, Your Honor, certainly we think that March 4 makes

much more sense. It is a compacted schedule as it is. The

benefit of a March 4 date is that if we stay on with the

current schedule that we've outlined in the report, it would

give the Court more time to look at the dispositive motions and

the pretrial filings, which would likely make the Court's job

easier in rendering a decision after the trial, because the

Court will have had a little bit more time before the trial to

really become familiar with the issues.

I can tell you it would be very difficult to squeeze two

more weeks out of the current schedule that we have in order to

shoot for a February 4th date. If the Court wants us to

attempt that, we certainly will try, but from our perspective,

a March 4th date makes a lot more sense.

THE COURT: And from your perspective -- and I need to

ask plaintiffs' counsel this question as well -- in terms of

selecting a trial date, I mean, are your witnesses all

available, or do you need to check that as well? Did you check

out all your witness availability starting February 18, which

we can't do, and are you going to need to do that to determine

whether February 4 or March 4 trial start is doable from the

defendants' perspective?

MS. LEVENSON: We have not checked witness schedules

yet. May I just speak to what Mr. Strach said about the

dispositive motions?

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THE COURT: Yes.

MS. LEVENSON: That's actually a chunk of the schedule

that does provide some flexibility, because these types of

cases are not -- generally gerrymandering cases aren't really

susceptible to dispositive motions. It's impossible that there

would be undisputed facts so that the Court would be ordering

summary judgment in this case. So this schedule fills that

opportunity in, but that's really a fleshy thing that could

come out that could shorten the timetable and allow for an

earlier trial.

THE COURT: The Court can't try it February 20 to

March 1. We're now looking at whether --

MS. LEVENSON: Right.

THE COURT: -- February 4 is manageable.

MS. LEVENSON: Yes.

THE COURT: And I'm not confident it is.

MS. LEVENSON: Uh-huh.

THE COURT: So that's where we are, and let's walk

through this. Either way, had plaintiff checked with witness

availability the weeks of February 18 and 25?

MS. LEVENSON: No, we haven't checked with witnesses

for availability for any of these time periods.

THE COURT: Okay. Well, I hope you can muscle your

witnesses into being available when available.

Did somebody need to say something?

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MR. STRACH: Your Honor, it's Phil Strach again. From

our perspective, you know, frankly, I've only been in the case

a week, so I'm not even quite sure who all the witnesses will

be, but I am quite certain that if we have a March 4th date,

that's enough time that we can get who we need to get there.

THE COURT: Uh-huh. And --

MS. LEVENSON: I guess I should add that our -- excuse

me -- our experts would be available at that point. I don't --

at this point it's hard to know which facts will be contested

and which other witnesses would need to be called.

THE COURT: Okay. Well, we're going to have to figure

this out. I'm leaning strongly to starting the trial on March

4 -- 

It's 30 days later than the plaintiff would have allowed.

The plaintiff can remind me of that every day. 

-- and we will try and move stuff expeditiously and turn

around a decision early, but that's the way I'm headed.

Now I want to walk through the balance of what we need to

address today. I want to walk through your Rule 26 report, and

I'm now on page two. And looking at your discovery and case

management schedule, and this conference is pursuant to Rule

16, you asked us to set this for the week of July 9, and we set

it on the 10th. We're doing that now. You're going to have

initial disclosures the 13th. That's great.

We have a cutoff date for filing of responses to the

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Amended Complaint. It's July 20. And as I understand it,

plaintiff has pending an unopposed motion to file a Second

Amended Complaint, and as I understand it, the response date to

the to-be-filed-momentarily Second Amended Complaint would

still stay on July 20. Is that the plaintiffs' understanding?

MS. LEVENSON: Yes, Your Honor.

THE COURT: And more importantly, is that the

defendants' understanding?

MR. STRACH: Yes, Your Honor.

THE COURT: All right. So we will put on an order

today and on the record now grant leave to file the Second

Amended Complaint forthwith, and we will reaffirm that the

response to the Amended Complaint needs to be filed by July 20.

The current plan that the Court ordered was defendant to

serve written discovery answers by the same July 20. Is the

defendant on track to do that?

MR. STRACH: Yes, Your Honor, we are.

THE COURT: That's good. We're going to reaffirm it.

You suggested that shortly thereafter you wanted the

discovery status conference. I'm happy to do that. I wondered

if there was something magic about Wednesday, July 25, or if

you might consider another day, either the Monday or Tuesday or

the Thursday or Friday of that week.

MS. LEVENSON: Well, it's a little magic. There could

be some movement. Our thinking on this was that if the

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discovery responses are going to be filed on the 20th, as they

are, that's a Friday.

THE COURT: Right.

MS. LEVENSON: So over the weekend the plaintiffs

would review what we received. That's the 21st and 22nd. So

presumably we would have a meet-and-confer with the defendants

on Monday or Tuesday, which would be the 23rd or 24th. So the

25th is Wednesday, and that would serve as an opportunity to

resolve any open issues, and then that would be also an

occasion to set any briefing on discovery motions and to

finalize a schedule for complete document production so that

the depositions can all go forward if they need to.

THE COURT: Fair enough. And I think that's, you

know, a good idea and it's properly expedited. I wondered if

you could live with July 26th.

MR. FRAM: Your Honor -- Mr. Fram -- unfortunately,

I've got an availability problem, another court hearing. I've

got a trial going on the 26th and the 27th.

THE COURT: Well, we'll do the discovery status on the

25th. Bear with me. I'm going to look at the calendar. And

that will be by phone.

Where are we? July 25 by phone. What time does the

plaintiff propose?

MS. LEVENSON: It's up to Your Honor.

THE COURT: Does the defense have a strong preference,

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time of day, on the Wednesday, the 25th?

MR. STRACH: No, Your Honor. Whatever works for the

Court.

THE COURT: Well, I'm likely to be traveling and I

don't know what's going to work, but why don't we say 10:00 AM

by phone our time on July 25. And bear with me, I may need to

move the hour, but we will confer on the 25th as appropriate.

I'd just as soon get something in writing the day before as

to where you are and what you think we're going to need to walk

through. Is that manageable, and how would you propose to do

that? First, on behalf of the plaintiff?

MS. LEVENSON: I would suggest that we file

simultaneous statements of our positions by close of business

the day before.

THE COURT: I'm comfortable with that. There may be

another approach. You know, I wonder if you guys could talk on

the 24th and come up with an agreed agenda of items. I don't

want each of you blindsiding the other, and what I really don't

want is to walk into something on the 25th where I don't yet

have an idea what presents.

What's the defendants' proposal in that regard?

MR. STRACH: Yes, sir. Thank you, Your Honor.

I think what we would prefer is something along the lines

of what you suggested, maybe either an agreed agenda or, at a

minimum, a joint statement where each side could list out any

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issues if they don't agree on what the issues are, so that we

don't bombard the Court with a lengthy filing the day before

the conference.

THE COURT: Well, I think we're all on the same page.

I'd like you to talk on the 24th about what presents on the

25th. I'd like an e-mail -- no, a filing on the docket jointly

presented that both sides have seen before it gets filed that

proposes an agenda and then captures the plaintiffs' positions

and the defendants' positions. And typically when I resolve

discovery disputes, I tell people you can't file a motion. You

have to do an informal discovery conference with me, and I ask

for a two- to three-page letter laying out what the discovery

issues are. I want your filing on the 24th to be concise and

short.

What do you suggest in that regard, Ms. Levenson?

MS. LEVENSON: In terms of how long the filing is?

I'm sorry.

THE COURT: Yes. How many pages? I'm going to try

and limit you, and I don't want to do it unreasonably. I don't

want 20-page documents. I don't think I need them yet on that,

do I? I want a proposed agenda, and if there are issues in

dispute, a concise statement of the parties' positions.

I'm doing basically what you wanted. You're welcome to

provide in this joint filing, you know, plaintiffs' statements

of the issues and defendants' statements of the issues. I

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can't believe you can't agree on an agenda. So I want a

somewhat agreed upon agenda and a statement of the parties'

positions on whatever presents, and I'm hoping that will be

short.

Do you want to begin the bidding, or do you want me to?

MS. LEVENSON: Yeah.

THE COURT: Is five pages too little?

MS. LEVENSON: Whatever Your Honor thinks. Yeah, it's

to serve you, the Court, so that you can understand the

positions. The level of specificity, obviously, is determined

by -- or partly determined by the length. So if you want five

pages' worth, then we would do five pages.

THE COURT: I would propose a one-page agenda that you

have discussed and tried to agree to.

MS. LEVENSON: Okay.

THE COURT: And then a five-page statement from each

side as to what we're going to do on the 25th and your

positions. And it's just a heads-up for me.

MS. LEVENSON: Okay.

THE COURT: And we'll probably end up having to brief

discovery disputes, if any.

But while we're talking about that, my practice -- it's in

the local rules that apply to cases with me and typically would

here -- is you don't file a motion to compel. You call the

Court and you say we've got some discovery issues, and the

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Court requires you to participate in a phone conference with

the judge within a couple of days, and the day before you send

a two- to three-page letter laying out the issues that present

and the parties' positions. You send them to each other and to

the Court, and then I and my law clerk gear up, we look at

them, and we give you our seat-of-the-pants reaction and tell

you where we think it would shake out.

If you can't acquiesce to that immediate informal seat-ofthe-pants, more than that, response from the Court and you want

to brief it, well, you're entitled to and we'll, you know,

expedite briefing schedules and all that, which we'll discuss

at the discovery status conference.

But if we have to end up briefing stuff and nothing changes

the Court's informal reaction, you know, I've read the rule and

I can respond if I think, you know, you're not being responsive

appropriately.

I'm still on page two of your Rule 26 report. We've

confirmed where we are through July 25. Settlement demand by

August 15th, I think that's great.

Do we need a date for a response? If you get a settlement

demand from the plaintiff on August 15, when will the defendant

respond?

MS. LEVENSON: That's a good question, Judge.

THE COURT: Yeah. It's sort of for the defendant.

When would the defendant respond?

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MR. STRACH: Well, that's a really good question, and

this isn't a normal case. It's going to be unclear what a

settlement demand would look like or whether that would even

really apply here. I would think, Your Honor, that we could

respond within a week.

THE COURT: Okay. I'm going to add that the defendant

will respond within a week, which is August 22.

My experience with cases, even though this is perhaps an

unusual one, is that first you need a settlement demand. It's

typically perceived as outrageous. It provokes an insulting

counteroffer, and then the dance begins.

I think you guys could settle this case, and the more you

work with me, the more you may be motivated to do that. And

I'm delighted that you have a demand date of August 15, and I

think it's entirely responsive of the defendants indicating

that they will respond by the 22nd, and then we'll see where we

go.

I'm glad we've got a date for disclosure of plaintiffs'

proposed remedial map, September 28th. Do you think it's going

to be one proposed remedial map, from the plaintiffs'

perspective? I'm not holding you to it.

MS. LEVENSON: Yes, Judge.

THE COURT: Okay. Then you're going to disclose your

experts by October 5. Presumably they have been engaged in

working on the map, is that right, from plaintiffs'

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perspective?

MS. LEVENSON: Yes, Judge.

THE COURT: Okay. And then the defendants' turn to

disclose and report experts is November 8, and then by November

15th lay witnesses are disclosed. You know, that's a great

pretrial layout. And then we need to deal -- and then we have

plaintiffs' expert rebuttal reports on the 22nd.

The notion that we're going to have to deal with election

results before trial is the reality of it, and I'm glad you've

figured it out. I guess the secretary of state is a party and

he's represented, and is there no doubt that the secretary of

state can provide what's provided in this paragraph by November

30?

MR. VOIGT: Yes.

THE COURT: And who said that?

MR. VOIGT: Yes, Your Honor.

THE COURT: Who said "Yes, Your Honor"?

MR. VOIGT: This is Steven Voigt.

THE COURT: Okay, okay.

MR. VOIGT: Sorry for interrupting.

THE COURT: No, I asked you directly. I was looking

for you to answer the question. Because that's your client;

right?

MR. VOIGT: Yes. Yes, Your Honor. Absent something

that comes up that is unforeseen, the secretary of state will

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be able to comply with that bullet point.

THE COURT: You sound like a lawyer. "Yeah, we'll do

it absent extraordinary circumstances." Understood. But if

something gets crazy, you're committed that the data will be

provided no later than December 7, Mr. Voigt?

MR. VOIGT: Yes, Your Honor.

THE COURT: And you think that November 30 and

December 7 are manageable?

MR. VOIGT: I do not anticipate any issues with this,

and I am very confident that we can meet these deadlines.

THE COURT: Very well.

Cutoff for fact discovery of December 19, I think that's

great but for the election stuff. I mean, then you've got the

fact discovery under the belt by before Christmas break,

holiday breaks.

And you're going to depose experts on an expedited basis,

except as to the election results, by the same December 19th.

Supplemental expert reports come in December 21. Based on what

we see on November 30, no later than December 7, but November

30 the Court's counting on. And then we take a little break.

When I looked at this, I was thinking, hey, I need these

dispositive motions December 31st. You know, if you filed them

on January 8th and they're ripened on January 25 and you

indicate no replies, you know, that's, what, two or three weeks

before trial, almost 30 days. That's a crunch. And in limine,

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Daubert motions, you know, I think we're going to get swamped.

And we could keep these dates in place and go to trial as fast

as we manageably can on March 4, and the Court would be more

comfortable with what you're going to dump on us.

As to no reply memos, I mean, good for you, but reply memos

are really helpful to the Court. When it finally shakes out

and we get down to where everybody really is and we get a short

reply, that's a helpful thing. And I'm sort of sorry we're not

going to see that, and if there's any built-in time, fine.

What I dislike about motion practice is a dispositive

motion gets filed. According to the rule, you have -- 21 plus

three -- 24 days to respond in opposition, 14 days plus three

is 17 to reply, and we've burned a full -- more than a month

just getting the thing ripe.

I saw that you accelerated your briefing to a degree. The

sooner we can get stuff teed up and ripe, the sooner the Court

can work on it so as to turn it around for you.

We could keep the final pretrial conference of the 18th,

use the trial date as the final pretrial conference February 18

and go to trial a couple of weeks later. We can have a

hearing, if necessary, on motions and a pretrial conference,

not a final pretrial conference, as you suggest, on February 4.

But that's sort of my reaction to the calendar. And it all

comes back to the trial date, because we back it up from then,

and we'll revisit that when we've gotten through everything

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else.

I'm still in the Rule 26 report. It's helpful to

understand the topics of discovery. I really have no comment

on it except defendants intend to seek discovery relating to,

among others things, plaintiffs' standing. I want to

understand, on standing, whether that's something that can be

addressed early or whether it's something that goes down at

trial. I have no concept of where we are on that issue and on

the law. Let's come back to it and make sure I come back to

it.

I'm perfectly comfortable with 25 fact depositions per

side, including third-party depositions, but not including

expert depos or 30(b)(6) depos for authenticity or application

of hearsay.

I think I understand what each 30(b)(6) deposition notice

shall be considered to correspond to one deposition.

Request for admissions, I'm perfectly comfortable with your

increased limit of 40 requests for admission. I've never

really seen requests regarding authenticity of documents and/or

the application of hearsay. I'm delighted to have you guys

work that through, and I don't care how many requests you make,

but we'll stick with your five. If we're going to move this

expeditiously and get to trial when we're ready, as plaintiffs'

counsel has already indicated, one of the real ways to cut

through this is to get authenticity and hearsay and all that

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stuff figured out.

On the expert disclosures and reports, interesting to know

what the expert anticipated areas are. On the plaintiffs'

issue, it just jumped out. No big deal. Give it some thought.

So there's going to be expert testimony on compliance with

the Voting Rights Act of 1965. Okay.

MS. LEVENSON: Yes, Judge.

THE COURT: Okay. You know, we don't need experts on

instruction in the law, but I suspect that this is a very

important issue, and I'm just telling you -- it jumped out at

me -- in a normal case that would seem like a suggestion that

you're going to have an expert telling us what the law is.

MS. LEVENSON: Your Honor, it would be an expert

telling us whether or not a map complies.

THE COURT: And that's part of the Court's

responsibility to determine, and expert testimony would help;

right?

MS. LEVENSON: Yes, Your Honor.

THE COURT: Okay.

On the defendants' expert testimony, again, no real

comment, I saw it, except there's "Plaintiffs' standing" again.

Let's pause now.

What's going on with standing from the plaintiffs'

perspective and the defendants' perspective? When you look at

Rule 16 itself, one of the things it talks about at, let's see,

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Rule 16(c), section (N), "ordering the presentation of evidence

early in the trial on a manageable issue that might, on the

evidence, be the basis for a judgment." I just wonder, is

standing something that can be threshed out early? I don't

know. I have no clue.

What's the plaintiffs' perspective? And then I'll hear the

defendants'.

MS. LEVENSON: Well, frankly, the plaintiffs don't

understand why standing would be listed as a topic for expert

testimony. There could be fact issues that defendants wanted

to satisfy themselves with as to standing, but we don't see

this as a matter for expertise. It's not an opinion.

THE COURT: Right. I'm not going to make you tell me

what the law is on why or why not plaintiffs in this case have

standing, but I'm going to ask defense counsel: 

What's this all about on standing, and is this something we

can resolve earlier than at the conclusion of trial? I don't

know. Defense counsel?

MR. STRACH: Well, Your Honor -- 

Sorry. This is Phil Strach again.

-- obviously we've got, you know, fresh material on

standing from the U.S. Supreme Court, which would give us a lot

of guidance on this. And so, number one, we expect that

standing may be the subject of our initial response to the

Second Amended Complaint. And then, depending on what the

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Court does with that, certainly we would -- we would be

developing fact evidence on the plaintiffs' standing, in

particular under the standard that the Court laid out in the

Whitford, or Gill case.

And then depending on how the plaintiffs react to the

standing arguments and evidence, there might be a need for some

expert testimony. We're sort of in uncharted territory here on

the standing issue, so we certainly want to make sure that we

are cautious and reserve an ability to put any kind of evidence

we think we need to on that issue.

THE COURT: Well, that's responsive. And I've heard

what I need to hear about the issue of standing right this

minute, and it will play out as it plays out.

Depositions, 25 fact depos per side, including third-party

depos, that's great. We've already talked about that. We're

down -- I'm now moving to page five.

You guys are threatening to put together an ESI protocol.

You're suggesting that if you can't do it, that at the July

25th conference the Court will order a protocol. Good grief.

I sure hope you come up with an ESI protocol and don't expect

me to come up with a protocol.

What's the plaintiffs' sense on this issue going forward?

Are you going to be able to get an ESI protocol together?

MS. LEVENSON: Yeah. We're very hopeful, Judge, that

we can. We certainly expect to. We hope we won't have to come

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to ask you to do it.

THE COURT: Great.

What's the defendants' perspective in that regard?

MR. STRACH: Your Honor, I think we will be able to do

that. Frankly, because I've only been in the case a week, I

need more time to get my head around IT issues and things with

the state legislature, but I'm hopeful that by the 25th we'll

have something in place.

THE COURT: I'm very, very, very hopeful and urge you

to figure that out among yourselves rather than calling upon me

to muck it up. That was with an "m."

As to expert discovery, this stuff's not subject to

discovery, it makes good sense. Privilege, you were

threatening to negotiate a stipulated protective order that

addresses inadvertent disclosure, and it also talks about

privilege logs.

Where are you on coming up with a stipulated protective

order, first from the plaintiffs' perspective and then the

defense?

MS. LEVENSON: Well, we accomplished a lot in coming

to agreement on things for the Rule 26(f) report, but that's

something that the parties were not able to negotiate at this

point. We would be happy to. We would like to get that done

right away.

THE COURT: I'm not chastising anyone for the fact

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that it's not done yet.

MS. LEVENSON: Yes.

THE COURT: I'm just asking how you're coming and when

do you think you might be on board with that. That sounds like

something we need to really get rolling soon, but I think you

did the work on what you needed to do properly and timely, and

I'm simply inquiring. 

And don't tell me you just got the case any more times. On

behalf of the defense, what are you thinking about protective

orders? The same approach as ESI protocol? You think you can

work it out among counsel?

MR. STRACH: Yes. Yes, Your Honor. In fact, usually

in these cases it's been my experience that we would do that in

conjunction with the ESI protocol.

THE COURT: Right.

MR. STRACH: So I imagine we'll be able to wrap it all

up together.

THE COURT: Okay. So when do you think I might see a

stipulated protective order? I'm not pinning you down yet. I

may in a moment. But before July 25, presumably?

MR. STRACH: Yeah, I think that would be doable. If

we wrap it up with the ESI protocol, I would think that would

be doable.

THE COURT: Do you agree, Ms. Levenson?

MS. LEVENSON: Oh, yes, absolutely. We'd be happy to

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do that by July 25th.

THE COURT: And how about if you send it to me with

what you're sending by on the 24th, the day before? If you get

it done earlier, send it to us. But can I order you to present

the proposed stipulated protective order to the Court by close

of business on the 24th, the day before our discovery

conference on the 25th?

MS. LEVENSON: Okay. Thank you, Judge. That was --

THE COURT: That's okay? You can live with that?

MS. LEVENSON: Yes, Judge. Thank you.

THE COURT: And defense as well?

MR. STRACH: Yes, Your Honor, that's fine.

THE COURT: All right.

Okay. So where were we? We were on -- okay. And that

protective order is going to talk about inadvertent disclosure.

It's going to talk about nature of the privilege logs.

Delighted you're producing documents on a rolling basis. I

love to know you're committing to providing privilege logs

relating to each production within 30 days of the production,

and I'll look in the stipulated protective order for the nature

of the privilege logs.

Third-party discovery. I really like what you have

provided. "Before serving any third-party subpoena, the Party

intending to serve the subpoena shall notify the other Parties

in the litigation" before serving any third-party subpoena.

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And then that ends the Rule 26 report. In looking at Rule

16 itself, it requires the contents of a pretrial order. The

required contents of the order I'll issue, there are only a few

requirements, which include limiting the time to join other

parties, to amend the pleadings, to complete discovery and file

motions. Those are mandatory.

You've provided all of those but for -- and I guess this

would be directed to the plaintiff. Now that the Court has

granted leave to file forthwith the Second Amended Complaint,

what is the date by which the Court will cut off any potential

amendment of the pleadings or joining of the parties absent

extraordinary circumstances? Can I say today?

MS. LEVENSON: Yeah. Thank you, Judge.

I don't anticipate that we would be joining any other

parties, and since you've added "absent special circumstances,"

I think that you can say today. Thank you.

THE COURT: Very well. I mean, if we were to join new

parties down the road, we're in deep trouble, I would think.

And we've got to fix the pleadings. So I'm going to indicate

that the motion -- well, I mean typically -- all right.

Today the Court will not entertain further motions to join

parties or amend the pleadings absent an extraordinary

circumstance.

Part of Rule 16 at (b)(3)(v) indicates that the Court can

direct that before moving for an order relating to discovery

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the movant must request a conference with the Court. And

that's my standard practice, and I would ask you, if you

haven't yet, to look at my standing orders and my trial

procedures, which are on the Web site. And when we get to the

discovery conference we can thrash that through.

I was intrigued by Rule 16(c) at (N) and (O). I talked to

you about, as to (N), whether there's any way to figure out

standing before trial. I'm just raising it, and we'll see as

it goes along.

Interestingly, the Court is permitted by rule to establish

a reasonable limit on the time allowed to present evidence.

And from what I've heard from both sides, we're looking at ten

days. And I want to firm that up, as we move forward, at

additional conferences to make sure this is going to work as

soon as we know it, and I'm going to -- you know, we're going

to figure this out such that Witness A is coming on from, you

know, 9:00 to 10:30 on day four, followed by this witness for

this time, just so we've mapped it out and make sure we can get

this in.

Beyond that, that was largely what I wanted to talk

through. We need to circle back and figure out what we're

doing on the trial date. My clear preference, having talked

this through and given it some thought, is for you all to bite

your tongue and try this before these three judges March 4

through March 15, to keep the calendar you have proposed in

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your Rule 26 report but for the trial date so everything gets

to the Court and is teed up.

I think it is unmanageable to think that you're going to be

able to do this and get adequate pre-commencement of trial work

out of us on February 4. I wish we could do it on the 18th.

We can't. It's 30 days longer than the plaintiff would have

liked, but I've told you you can remind me of that every time

we seem to slow, and I will press as hard as we can to turn our

decisions around expeditiously.

So we're back to the hard question. Do you want to

acquiesce now, or do you want some time to think it through, or

can I set this for trial March 4 to 15, Ms. Levenson?

MS. LEVENSON: Judge, I would really appreciate the

opportunity to consult with the team to see if we can sharpen

our pencils and make it work in terms of what has to happen

after we receive a ruling from you before the -- to have a

final resolution in time for the election.

I think that there's things that the secretary of state

could do to make it possible too, because what's the book end

on the other end, obviously, isn't just the election on

November 6. The candidates have to run in primaries first.

THE COURT: Right.

MS. LEVENSON: So we're talking about a primary

election in February. And they don't just come out of nowhere

and run. Or, I'm sorry, in May. They don't just come out of

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nowhere and run. First they have to announce their candidacy

by making a filing with the state.

If the secretary has discretion as to when candidates can

file with the state and that date could be adjusted to allow a

little more time on that end so that the trial date could be

put off to give us more time to take the case through all the

stages it has to go through to get a final resolution before

whatever actually is the drop-dead date, that could be very

helpful. So perhaps we should explore that with the defendants

as well.

THE COURT: Very well.

What's the defendant make of where we are on this issue? I

understand you think March 4 is a good way to go. How about if

we recess and the lawyers talk this through and figure out how

to adjust the calendar given the bombshell that this Judge

dropped indicating that the Court's not available February 20

to March, whatever it was, 1? What do you make of that, sir?

MR. STRACH: Well, Your Honor, you know, certainly we

prefer the 4th. The 4th has the advantage of also allowing

perhaps a short reply period time, which might help the Court.

THE COURT: Right.

MR. STRACH: Having said that, we certainly -- I mean,

if the plaintiffs want to talk to us, we'll certainly talk to

them. But it seems to us that the 4th makes much more sense.

And I am not so sure -- I think it may be premature to talk

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about altering filing period dates and that kind of thing, but

we're certainly happy to listen to --

THE COURT: Well, I'd like you guys to work on the

calendar one more time, given what the Court has said. And

while the Court has expressed its seat-of-the-pants that I know

we're ready to go March 4, it gives us much more time to get

ready, if plaintiff comes back and talks to the defendant and

is able to evidence that this is all a waste of time if we

don't start this on February 4, I'm going to listen to that

argument. Because these three judges, we're ready to go. And

we don't want and you don't want to engage in all of this work

and find out that it's moot because it took too long.

So don't over-rely upon, defendants, my preference at this

moment for March 4, if in fact the plaintiffs can flat-out

evidence for me, having showed it to you first, that if we

don't start February 4 -- if we don't start until March 4, it's

a waste of time.

So does defense counsel understand my caution?

MR. STRACH: We do, Your Honor, and we appreciate that

very much.

THE COURT: All right. So I guess my reaction is, how

about we reconvene in a week -- or we'll pick a date whenever

you propose; if it's sooner, it's sooner -- and you come up

with a new calendar matching what you have on discovery and

case management, modifying a little bit of this here and there

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to get replies in and not to kill anybody, including the Court,

and once we get that proposed calendar, we'll reconvene?

What's the plaintiff make of that?

MS. LEVENSON: Yes, Judge. I appreciate the

opportunity to do that.

THE COURT: Okay. And when do you think we should

reconvene?

MS. LEVENSON: Well, today is the 10th.

THE COURT: Wednesday, the 10th; isn't that right?

No, Tuesday.

MS. LEVENSON: So waiting until the 25th doesn't make

sense. We need to do this in a --

THE COURT: As quickly as we can.

MS. LEVENSON: Yes, let's try to do this quickly. I'm

just going to look at my calendar, Judge. One second.

THE COURT: That's fine. The upcoming Friday is

Friday, the 13th. Are you working that day?

MS. LEVENSON: It sounds like a good day, Friday, the

13th.

THE COURT: Is it manageable, first, in terms of the

work required and then, second, specifically on your calendar?

But in the first sense, do you think you all can mutually work

this through and tell me where you are by the 13th, plaintiff?

MS. LEVENSON: The plaintiffs could, yes, Judge.

THE COURT: All right.

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And, defense, do you think that's reasonable?

MR. STRACH: I think -- I think yes, Your Honor.

Obviously, it will depend on when we all get together to talk,

but I don't see any reason right now that that couldn't be

done.

THE COURT: Very well. So will you talk to me on the

phone on the 13th, having previously provided me with the rough

calendar and any identification of where you are?

Do you have a preference on time on the 13th, either of

you, or time you can't do it, morning, midday or afternoon?

From the plaintiffs' perspective?

MS. LEVENSON: For me personally, I can't speak for

the whole team, but for me personally, I would appreciate if it

could be before 1:00.

THE COURT: Okay.

Defense have any proposals in that regard?

MR. STRACH: If it's before 1:00 -- I would actually

prefer the afternoon, but if it's before 1:00, it would be

better for me if it was between 10:00 and noon.

THE COURT: With an end time at noon?

MR. STRACH: Yes, Your Honor.

THE COURT: Okay. Can we do it at 10:30 by phone on

the 13th, from the plaintiffs' perspective?

MS. LEVENSON: That works well for me, Judge. Thank

you.

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THE COURT: And the defense as well?

MR. STRACH: Yes. That works for me, Your Honor.

THE COURT: All right. Will you get me your stuff by

the night before in terms of where you are? You're going to

send me a little -- so I don't walk into the new scheduling

conference blind, can you send me something prior to the 13th

at 10:30?

What's the plaintiff propose?

MS. LEVENSON: Sure, Judge. Would you like a joint

e-mail?

THE COURT: Yeah. When can you get that to me, close

of business on the day before?

MS. LEVENSON: Close of business on the 12th.

THE COURT: And is defense amenable to that?

MR. STRACH: Yes, Your Honor, that would work.

THE COURT: All right. I don't wish to say this,

but -- no, I think it shouldn't be an e-mail. It should be a

filed pleading, I'm doing all this stuff on the record, much as

what you're going to do for the discovery conference. I think

I told you I wanted it filed. Did I?

MS. LEVENSON: Okay.

THE COURT: Maybe I didn't.

MS. LEVENSON: Yeah. You said a joint filing, yes.

THE COURT: Right. So I want all this stuff on the

docket. That's why I've got a court reporter here today. I

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typically don't do that in civil cases. I'm going to

memorialize all of this. It's necessary given the caliber of

the lawyers who present.

I think we have a plan forward. Are there other issues we

need to discuss today? If there are, tell me. From the

plaintiffs' perspective?

MS. LEVENSON: No, Judge. I think this covers

everything. Thank you. 

Oh. You know, there is one thing. And that is a question

about your 120-day report of fees incurred.

THE COURT: Right.

MS. LEVENSON: Can that -- I trust, because a detailed

accounting of hours expended includes reports on the --

THE COURT: Yeah.

MS. LEVENSON: -- specific matters undertaken -- 

THE COURT: Right. 

MS. LEVENSON: -- that would disclose work product,

and we wouldn't want us to do that on a regular basis. I

assume it could just be a summary total amount?

THE COURT: Yeah. You're not the first lawyer to

point that out to me, and we just haven't fixed the language.

The thrust of the rule is every 120 days tell the

defendants how much time you've racked up, but certainly don't

disclose in the time individual time entries what the lawyer

was working on.

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And the defense understands that; right?

MR. STRACH: Yes, Your Honor. That's fine with us.

THE COURT: All right. We'll try and give you a

sentence that reflects that somewhere in our orders to come.

But you're absolutely right, and you understand what the thrust

of the requirement is, the plaintiff does?

MS. LEVENSON: Oh, yes. They're really sensible

requirements, Judge.

THE COURT: Okay. Did you have more from plaintiffs'

perspective today? If you do, tell me.

MS. LEVENSON: No. Thank you, Judge. Thank you.

That's it from us.

THE COURT: Okay. 

And from the defendants, more on your plate yet? I mean, I

know you just got on the case.

MR. STRACH: No, Your Honor. We've got plenty to work

on.

THE COURT: You do. You're delighted to be a part of

this party now; is that right?

MR. STRACH: I am. I am looking forward to it,

believe it or not.

THE COURT: I believe it. Actually, the three judges

believe that too. And what's really nice is that, as reflected

in your Rule 26 report, I mean, you guys are pros and you're

going to do this right.

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So we've made some progress. We'll try and memorialize it.

I'm available to you whenever you jointly need us. Just call

or e-mail.

And I will look forward to communicating next with you on

our status report this Friday at 10:30 by phone, having gotten

something in writing from you the day before by close of

business as to where you are and what we're going to talk

about.

I hate to admit it, but this close of business, it used to

be 5:00 o'clock. Court docketing is available 24/7 365 days.

Some judges are as well. So you can actually docket your stuff

at midnight if you insist, but try not to. Get adequate sleep

and stay healthy and stay civil.

I'm delighted. I would propose to adjourn. Any objection

from the plaintiffs?

MS. LEVENSON: No objection, Judge. Thank you.

THE COURT: From the defense?

MR. STRACH: None, Your Honor.

THE COURT: Thank you all for calling in timely. I'm

going to adjourn by saying goodbye and hanging up. Thank you,

counsel. Goodbye.

MR. STRACH: Goodbye.

(Proceedings concluded at 5:01 PM.)

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C E R T I F I C A T E 

I, Luke T. Lavin, RDR, CRR, the undersigned, certify 

that the foregoing is a correct transcript from the record of 

proceedings in the above-entitled matter. 

 s/Luke T. Lavin 

Luke T. Lavin 

 Official Court Reporter 

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