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TX Respnse Scheduling Order 051312

TX Respnse Scheduling Order 051312

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Published by: edward_garris on May 14, 2012
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vs.ERIC H. HOLDER, JR., in hisOfficial Capacity as Attorney GeneralOf the United States,
Case No. 1:12-CV-00128(RMC, DST, RLW)Three-Judge Court
The State of Texas remains ready, willing, and able to work steadfastlytoward achieving the goals outlined in the Court’s proposed order. Toward thatend, today the State completed production to the Department of Justice andIntervenors of all requested databases. Going forward, the State can and willcomply with all requirements necessary to get this case to trial by July 9, 2012,subject only to the reasonable limitations detailed below.
  At this point in the proceedings, one thing is clear:
parties should berequired 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 thetimelines proposed by the Court to the extent compliance is reasonably possible.
The State respectfully disagrees with the Court’s view that discovery delays are the fault of only one party to thislitigation. But with the July 9 trial date in jeopardy and the possibility looming that Texas will not be able to enforceits duly enacted voter identification law in time for the November 2012 elections, the focus should be on doingeverything possible to move this case toward judgment.
Case 1:12-cv-00128-RMC-DST-RLW Document 112 Filed 05/09/12 Page 1 of 16
Because so many aspects of discovery are outside the Texas Attorney General’scontrol and because of the inherent vagaries of litigation, counsel for the Statecannot certify under oath that future events in this process will absolutely takeplace. Many of the future events about which the Court has asked counsel to makecertifications are subject to the intervening actions of people and agencies outsidecounsel’s control—including the opposing parties. While we cannot certify underoath that the discovery process will play out precisely as envisioned in the Court’sorder, we can assure the Court that
we will do everything in our power tocomply with the vast majority of the Court’s proposal
. Some parts of theCourt’s proposal, however, cannot be complied with, such as the requirement thatcounsel for the State preemptively waive privileges that do not belong to counseland that have not yet been asserted. Accordingly, the State urges the Court to reconsider the portions of itsproposal that cannot reasonably be complied with, which are identified below. Inaddition, the State asks that this Court consider modifying the proposed terms sothat both the State and all Defendants are required to do everything in their powerto move toward a July 9 trial. If relatively minor adjustments are made to theCourt’s proposal, the State can and will comply with it, and the July 9 trial date canand will be preserved.
I. The State Will Do Everything in Its Power To Comply With the Achievable Aspects of the Court’s Scheduling Proposal.
 At the time of this filing, the State has complied with paragraph 2 of theCourt’s proposal by producing all requested databases to the DOJ and Intervenors
Case 1:12-cv-00128-RMC-DST-RLW Document 112 Filed 05/09/12 Page 2 of 16
in an agreed-upon format. The State initially produced these databases to theUnited States on March 30, 2012 and to Intervenors on April 13, 2012. And sincethe Defendants’ request for supplemental database fields, the State has workedtirelessly to obtain these complex databases from the relevant state agencies andthen to produce these sensitive materials as quickly as possible. As discussedbelow, however, the State cannot comply with the second part of paragraph 2because it is contingent on events outside the State’s control, including the actionsof opposing counsel.Texas will comply with paragraph 3 of the Court’s proposal by completingproduction of non-privileged documents other than those gathered pursuant toelectronic search terms no later than May 11, 2012.Texas will make every effort possible to comply with paragraph 4 of theCourt’s proposal by completing production of electronic-search-term discovery byMay 21, 2012. Because the State received modified search terms from Defendantsonly today, it has not been able to run searches to determine the volume of datathat must be reviewed and produced by this deadline. Assuming that the modifiedsearch 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 tocomply with the May 21 deadline. As soon as the State has done the analysisnecessary to know with certainty that the May 21 deadline is achievable, the Statewill inform the Court of that fact.
Case 1:12-cv-00128-RMC-DST-RLW Document 112 Filed 05/09/12 Page 3 of 16

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