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Offices in: Albany, Malta, New York City and Saratoga Springs, New York; Washington, D.C. and Farmington, Connecticut

COUCH WHITE counselors and attorneys at law

Couch White, LLP 540 Broadway P.O. Box 22222 Albany, New York 12201-2222 (518) 426-4600

Kevin M. Lang

Partner

Direct Dial: (518) 320-3421 Telecopier: (518) 426-0376

email: [email protected]

February 25, 2013 VIA ECF and OVERNIGHT COURIER Hon. Reena Raggi United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, New York 10007

Hon. Gerard E. Lynch United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, New York 10007

Hon. Dora L. Irizarry United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: Favors, et al. v. Cuomo, et al.

1:11-cv-05632-DLI-RLM Dear Judges Raggi, Lynch, and Irizarry:

We write on behalf of Minority Leader Brian M. Kolb and Assemblymember Robert Oaks (“Assembly Minority”) regarding the Assembly Minority’s Objections to and Appeal from Magistrate Judge Mann’s Order Regarding Legislative Privilege, submitted August 24, 2012 (“Assembly Minority’s Objections”; docket entry 492) and Magistrate Judge Mann’s February 8, 2013 Memorandum and Order (“February 8 Order”, docket entry 559).

On June 18, 2012, the Assembly Minority, Assembly Majority, and Senate Majority

defendants filed separate motions for a protective order from the Intervenor-Plaintiffs/Senate Minority’s discovery demands (docket entries 393 through 399) on the grounds that the documents and information sought is covered by the legislative privilege (and that certain documents are protected by virtue of the attorney-client privilege). In a Memorandum and Order dated August 10, 2012 (“August 10 Order”; docket entry 487), Magistrate Judge Mann deferred making a final ruling on the protective order motions pending an in camera inspection of the parties’ documents.

Case 1:11-cv-05632-DLI-RR-GEL Document 566 Filed 02/25/13 of 21 PageID #: 13393

Hon. Reena Raggi Hon. Gerard E. Lynch Hon. Dora L. Irizarry February 25, 2013

The Assembly Minority and Senate Majority timely objected to the August 10 Order. The Assembly Minority sought review and reversal of the following holdings: (i) the legislative privilege is “qualified” as opposed to “absolute;” (ii) the improper conflation of legislative immunity with legislative privilege; (iii) misapplication of the relevant decisional law; and (iv) the Magistrate Judge’s failure to follow previous rulings from the Three-Judge Court pertaining to legislative motivations.

During the period of Magistrate Judge Mann’s in camera review, the Drayton and Boone

Intervenor-Plaintiffs voluntarily discontinued their claims related to the Assembly Redistricting Plan (docket entry 530), and there are now no challenges pending to the Assembly Redistricting Plan. That discontinuance, and the discussions during the January 31, 2013 Discovery Conference, presumably caused Magistrate Judge Mann to conclude that the privilege motions of the Assembly Minority and Majority were moot (February 8 Order at 1-2). Thus, in the February 8 Order, Magistrate Judge Mann granted in part, and denied in part, the Senate Majority’s motion for a protective order but denied the Assembly Minority’s motion.

The Assembly Minority respectfully submits that its motion for a protective order is not

moot, and the Magistrate Judge erred in denying the motion on that basis. While the Intervenor-Plaintiffs have withdrawn their Consolidated Initial Discovery Requests as to the Assembly Minority and Majority, the possibility clearly remains that one or more parties will seek disclosure from Assembly Minority Leader Kolb, or Assemblymember Oaks, and/or members of their staffs.

By letter dated February 15, 2013, undersigned counsel asked the parties to formally

withdraw their discovery requests and confirm that no further disclosure would be sought (in the February 8 Order, Magistrate Judge Mann “presume[d[ that the interrogatories served on the Assembly defendants have [] been withdrawn” February 8 Order at p. 7, fn 6). A copy of this letter is attached hereto as Exhibit “A.” Counsel for the Ramos Intervenors replied that “[w]hile I understand you seek to close out privilege issues for your clients now, we cannot know whether future demands could never arise from plaintiffs….” A copy of the Ramos Intervenor-Plaintiffs’ response is attached hereto as Exhibit “B.” As of the date of this letter, the Assembly Minority has not received responses from the Senate Minority or Drayton Intervenors.

In lieu of responding, on February 22, 2012, the Senate Minority served its Second Set of

Discovery Requests on all Defendants. These requests, coupled with the Ramos Intervenor-Plaintiffs’ response, demonstrate that discovery from the Assembly Minority will continue to occur in this matter, and therefore, that the Assembly Minority’s motion for a protective order continues to be germane. A copy of the Senate Minority’s Second Set of Discovery Requests is attached hereto as Exhibit “C.”

Case 1:11-cv-05632-DLI-RR-GEL Document 566 Filed 02/25/13 Page 2 of 21 PageID #: 13394


The February Order places the Assembly Minority in the untenable position of being exposed to continued discovery without the benefit of a determination of the merits of its motion for a protective order. Moreover, the August Order was incorrectly decided and sets a dangerous precedent that could erode the protections of the Speech and Debate Clause and legislative privilege in this and future cases.1 Additionally, the issues raised in the Assembly Minority’s Objections were, in part, different from the objections raised by the Senate Majority.

While both sets of defendants asserted that legislative privilege precludes discovery of

materials related to the deliberative process, the Assembly Minority’s position was guided by a somewhat different legal analysis and supporting case law. Although the Assembly Minority adopted and incorporated the substance of the Senate Majority’s Objections regarding the issue of whether the legislative privilege is qualified or absolute, the Assembly Minority could be prejudiced if the Three-Judge Court does not consider the Assembly Minority’s Objections on its own merits.

For the foregoing reasons, the Assembly Minority respectfully submits the objections

filed as to the August 10 Order are not moot, that they continue to apply to the February 8 Order, and they should be heard and decided by the Three-Judge Court.

Further, because the February 8 Order contains, and its holdings are founded on, the same

errors set forth in the Assembly Minority’s Objections, the Assembly Minority objects to the general legal holdings set forth in February 8 Order (the Assembly Minority takes no position on the application of those holdings to the Senate Majority’s documents). In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the Assembly Minority therefore appeals the February 8 Order to the Three-Judge Court. In the interests of brevity and judicial economy, we respectfully incorporate the Assembly Minority’s Objections in their entirety, and the arguments raised by the Senate Majority and Assembly Majority on the issue of the nature of the legislative privilege, as the Assembly Minority’s objections to the February 8 Order.

Based on these objections, the Three-Judge Court should reverse or set aside the disputed

aspects of the August 10 and February 8 Orders and grant the request of Defendants Kolb and Oaks for a protective order preventing the Intervenor-Plaintiffs and Senate Minority from seeking disclosure of any and all materials or communications that are outside of the publicly available legislative record, together with such other and further relief as the Court deems just and proper.

1 We note that the August 10 Order is a reported decision, 285 F.R.D. 187.



Respectfully submitted,

COUCH WHITE, LLP SINNREICH KOSAKOFF & MESSINA LLP

Kevin M. Lang Vincent Messina

Kevin M. Lang Vincent Messina Enclosures cc: All counsel (via ECF)


Exhibit A


Exhibit B


Amanda De Vito

From: Jackson Chin [email protected]>Sent Tuesday, February 19, 2013 1:51 PMTo: Timothy F. Hill; Jose Perez; Mancino, Richard; Randy McLaughlin; Eric HeckerCc: Louis K Fisher; Amanda De Vito; Alex Goldenberg; [email protected];

[email protected]; Vincent J. Messina; [email protected];[email protected]; [email protected]; [email protected];Burstein, Daniel; [email protected]; Don Hillmann; [email protected];[email protected]; [email protected]; eslyjj@ao .com; Fred Brewington;[email protected]; [email protected]; John Cuti;[email protected]; Julie Ehrlich; Jennifer Harvey; [email protected];Jeffrey M. Norton; [email protected]; [email protected];[email protected]; Jonathan Sinnreich; [email protected];[email protected]; Williams, Jeffrey; [email protected];[email protected]; [email protected]; Kevin Lang;[email protected]; [email protected]; [email protected];[email protected]; [email protected];[email protected]; [email protected];[email protected]; [email protected];[email protected]; [email protected]; [email protected];[email protected]; [email protected]; Todd R Geremia;[email protected]; [email protected];[email protected]; Joan Gibbs

Subject: RE: Discovery sought from Assembly M nority

Mr. Hill:

Ramos lntervenors made no claims nor discovery requests of Minority Leader KoIb and Assemblyman Oaks. While Iunderstand you seek to close out privilege issues for your clients now, we cannot know whether future demands couldnever arise from plaintiffs, in particular, if your clients are found to have p ayed a role in making the 2012 Senate map.So, we must reserve our rights in discovery.

Thank you.

Jackson ChinSenior Counsel

LatinoJustice PRLDEFT: 212.739.7572 I [email protected]

This transmittal is intended for a particular addressee(s). It may constitute a PRIVATE and CONFIDENTIAL attorney-clientcommunication. If it is not clear that you are the intended recipient, you are hereby notified that you have received this transmittal inerror; any review, copying or distribution or dissemination is strictly prohibited. If you suspect that you have received this transmittal inerror, please notify LatinoJustice PRLDEF immediately by email replying to the sender and delete the transmittal and any attachments.

From: Timothy F. Hill rmailto:[email protected]: Friday, February 15, 2013 2:17 PMTo: Jose Perez; Mancino, Richard; Randy McLaughlin; Eric HeckerCc: Louis K Fisher; ..- . • . h - .m; Alex Goldenberg; AKhanna~ierkinscoie.com;[email protected]; Vincent J. Messina; [email protected]; [email protected];c Ii - •-rkin .- .m; clewis~Derkinscoie.corn; Burstein, Daniel; dchilli~praubard.com;

1


dhill - • Co whi - .m; DIewis~lewisandfio corn; - - • . • •. . corn; esimmons~mec.cuny.edu;[email protected]; Fred Brewington; amagDantav~JaaIdeforp; [email protected]; Jackson Chin; John Cuti;[email protected]; Julie Ehrlich; [email protected]; [email protected]; Jeffrey N. Norton;[email protected]; ioanDhvlis~yahoo.com; toshua.DeDner~oapstate.ny.us; Jonathan Sinnreich;[email protected]; [email protected]; Williams, Jeffrey; • e a.. ‘ka - . - .m;[email protected]; kkimerlinci~aaldef.orp; Ian’ • ‘uchw - Corn [email protected];macarvin~nonescJay.com; [email protected]; NManheirn~Derkinscoie.com; •ah. . - • • eschi -

nDurcelk~)Derkinscoie.corn; office~brewinptonIaw.com; • - al. • ir •tonl.w • ; RK-lI • .- kin . om;[email protected]; smallis~praubard.corn; enz .- kin - corn -i ani-.R. i-ri • ... -ten

r.. . ‘hi p Sc. i - om; Todd R Gerernia; [email protected]; [email protected];[email protected]; Joan GibbsSubject: Re: Discovery sought from Assembly Minority

Dear Counsel:

Please see the attached correspondence by which we, on behalf of the Assembly Minority, seek clarification from thePlaintiffs (and Senate Minority) as to any discovery that has or will be sought from our clients.

Thank you for your attention.

Have a pleasant weekend

Timothy F. HillSinndech Kosakoff & Messina LLP267 Carleton Avenue, Suite 301Central Islip, New York 11715631.650.1200 (tel)ó31 .650.1207 (fax)thiN km aw.n t


Exhibit C


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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------X MARK A. FAVORS et al.,

Plaintiffs, No. 11 Civ. 5632 (RR) (GEL) (DLI) (RLM)

v. ANDREW M. CUOMO et al., Defendants. -----------------------------------------------------------X

SENATE MINORITY’S SECOND SET OF DISCOVERY REQUESTS

PLEASE TAKE NOTICE that Senate Minority, by and through its attorneys, Cuti Hecker

Wang LLP and Jeffrey M. Wice, hereby demands that Defendants produce for inspection and

copying at the offices of Cuti Hecker Wang LLP, located at 305 Broadway, Suite 607, New

York, New York, 10007, within thirty (30) days hereof, all documents which are responsive to

the requests that are contained herein.

PLEASE TAKE FURTHER NOTICE that, pursuant to FRCP 34(b)(1)(C), Defendants

shall produce all electronically stored information that is responsive to these requests in

searchable PDF format.

DEFINITIONS

The Uniform Definitions set forth in Local Rule 26.3 of the Local Rules of the U.S.

District Courts for the Southern and Eastern Districts of New York shall be used to interpret

these document demands and interrogatories and are hereby incorporated by reference. In

addition, as used in these document requests and interrogatories:


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1. The “Senate Majority” refers to the Republican Members of the New York

Senate during 2011 and 2012 and/or those under the guidance, direction, and control of Senator

Dean Skelos, including without limitation officials at the New York State Legislative Task Force

on Demographic Research and Reapportionment (“LATFOR”) who took direction from Senator

Skelos and/or others in the Senate Majority during 2011 and 2012.

2. “Plan Architects” refers to the persons or persons, including Senators,

legislative staff, LATFOR staff, consultants, and attorneys, who were primarily responsible for

the design of the Senate districts that were proposed on January 26, 2012 and for the design of

the Senate districts in the enacted 2012 Senate Plan.

3. “Concerning” or “relating to” mean related to, relating to, consisting of,

referring to, pertaining to, concerning, describing, evidencing, substantiating, reflecting,

supporting, prepared in connection with, used in preparation for, or being in any way legally or

logically connected with the matter discussed.

4. “Communication” refers to any transfer of information, ideas, opinions, or

thoughts by any means, at any time or place, under any circumstances, and is not limited to

written or oral transfers between natural persons, but includes all other transfers, including

electronic transfers, transfers of information stored on computer disk or in computer memory,

and memoranda to file.

5. The term “document” means, without limitation, any written, recorded, or

graphic material, whether prepared by you or any other person, that is in your possession,

custody, or control, including memoranda, reports, letters, telegrams, electronic mail, other

electronic correspondence, and any other communications or information recorded in any form

or medium; notes, minutes, and transcripts of conferences, meetings, and telephone or other


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communications; transparencies, slides, handouts, and multimedia presentations; contracts and

other agreements; statements, ledgers, and other records of financial matters or commercial

transactions; notebooks and diaries; plans and specifications; publications; photographs;

diagrams, graphs, charts, and other drawings; photocopies, microfilm, and other copies or

reproductions; audio and video recordings; tape, disk (including all forms of magnetic, magneto-

optical, and optical disks), and other electronic recordings; financial models; statistical models

and other data compilations; and computer printouts. The term includes all drafts of a document;

the original document (or a copy thereof if the original is not available); and all copies that differ

in any way from the original (including as to any notations, underlining, or other markings). The

term also includes information stored in, or accessible through, computer or other information

retrieval systems, together with instructions and all other materials necessary to use or interpret

such data compilations.

6. Person: The term “person” is defined as any natural person or any

business, legal or governmental entity, corporation or association.

7. All/Each: The terms “all” and “each” shall be construed as all and each.

8. And/Or: The connectives “and” and “or” shall be construed either

disjunctively or conjunctively as necessary to bring within the scope of this discovery request all

responses that might otherwise be construed to be outside of its scope.

9. Number: The use of the singular form of any words includes the plural

and vice versa.


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INSTRUCTIONS

1. In responding to the following requests (collectively the “request”), you

shall furnish all information that is available to you, including information or materials in the

possession, custody, or control of your attorneys, accountants, investigators, experts,

representatives, contractors, employees, or other agents.

2. If any document responsive to the requests has been lost, destroyed, or is

otherwise unavailable, describe and identify each such document by stating in writing: (i) the

name(s) of the authors(s), the name(s) of the person(s) who received the original and all copies

and the date and subject matter, (ii) the last known custodian of the document, (iii) the incident,

event, or occurrence during which such document was lost, destroyed, or otherwise became

unavailable, (iv) each person having knowledge of the circumstances of it being lost, discarded

or destroyed, and (v) your efforts to locate each such document.

5. If a claim of privilege is asserted with respect to any document (including

without limitation legislative privilege or attorney-client privilege), or you refuse to disclose any

document requested herein on any other ground, state the basis for your claim that such

document need not be disclosed with such specificity as will permit the Court to determine the

legal sufficiency of your objection or position, and, for each such document, identify:

a. whether the document contains a request for legal advice and, if so, identify the person who requested the legal advice;

b. whether the document contains advice as to the meaning or

application of particular laws or rules in response to such request; c. any further information to explain and support the claim of

privilege and to permit the adjudication of the propriety of that claim;

d. the nature of the privilege (including work product) that is being

claimed and if the privilege is being asserted in connection with a


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claim or defense governed by state law, indicate the state’s privilege rule being invoked;

e. the type of document, e.g., letter or memorandum; the general

subject matter of the document; and such other information as is sufficient to identify the document for a subpoena duces tecum, including, where appropriate, the author, addressee, and any other recipient of the document, and, where not apparent, the relationship of the author, addressee, and other recipient to each other.

3. If in answering these requests you claim any ambiguity in interpreting

either the request or a definition instruction applicable thereto, such claim shall not be utilized by

you as a basis for refusing to respond, rather you shall set forth in a part of your response to such

a request the language deemed to be ambiguous and the interpretation chosen or used in

responding to the request.

4. Respond separately and completely to each document request or

subdivision thereof and each interrogatory or subdivision thereof, setting forth the question in

full followed by each answer.

5. With respect to the documents requested, this request seeks production of

all documents described, in their entirety, along with any attachments, drafts and non-identical

copies.

6. Questions regarding the interpretation of this request should be resolved in

favor of the broadest possible construction.

7. This request is to be considered as continuing and each Defendant is

requested to provide, by way of supplementary responses hereto, such additional information as

it or any persons acting on its behalf may hereafter obtain that will augment, clarify, or otherwise

modify the responses now given to this request. Such supplementary responses are to be filed


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and served upon counsel for the Senate Minority as soon as practicable after receipt of such

information or documents.

DOCUMENTS TO BE PRODUCED

1. All documents relating to or reflecting any instructions that the Plan Architects

were given by the Senate Majority and/or LATFOR regarding the extent to which the Plan

Architects were to attempt to achieve population equality and/or to minimize population

deviations.



Architects were not to attempt to achieve population equality and/or to minimize population

deviations.



Architects were to prioritize partisan goals over achieving population equality and/or minimizing

population deviations.

4. All documents relating to or reflecting any observations made by the Plan

Architects about (a) the feasibility of reducing or eliminating population deviations, (b) the

impact of reducing or eliminating population deviations on any partisan goals, and/or (c) the

impact of any partisan goals on population deviations.

5. All documents relating to or reflecting the creation of, toleration of, or failure to

attempt to reduce population deviations in connection with the desire by the Plan Architects, the

Senate Majority, or LATFOR to achieve any partisan goals.


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Dated: February 22, 2013 New York, New York

CUTI HECKER WANG LLP

By: Eric Hecker John R. Cuti Julie B. Ehrlich Alexander Goldenberg

305 Broadway, Suite 607 New York, New York 10007 (212) 620-2603 Jeffrey M. Wice

P.O. Box 42442 Washington, D.C. 20015 (202) 494-7991

Attorneys for the Senate Minority


ouch white kevin m. lang - moritzlaw.osu.edu€¦ · hon. reena raggi hon. gerard e. lynch hon....

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