As we mentioned yesterday, the Photo ID case between the state of Texas and the Department of Justice marches steadily toward trial in July. After we posted yesterday, the federal district court in D.C. that is hearing the case issued a new order, this time scolding the state of Texas for its conduct in this lawsuit.
In some respects, the order is a fairly routine scheduling order, setting out the important dates between now and trial, currently set for July 9th. It lists things such as the last date to file discovery motions (May 21st), the date that expert disclosures are due (June 1st), and the date for motions in limine to be filed (June 20th). All of these are fairly ordinary processes leading up to a trial.
Except, of course, for the specific instructions that apply to Texas and Texas only.
Find out what they are below the jump. Before setting out the regular deadlines ahead of trial, the court set out specific instructions and restrictions pertaining to the state of Texas only. The court ordered, among other things, that the lead counsel of record for Texas certify “without equivocation, under oath, and in good faith” by the end of the day on May 9th (tomorrow) the following:
1. Texas can “comply fully with every deadline, term and condition set forth in this Order;”
2. “Texas has completed production of all relevant databases to the United States, and will produce to Defendant-Intervenors by May 9, 2012” all underlying data and supplemental information necessary for comparison and analysis;
3. “Texas will produce all non-privileged documents to Defendants [United States]… without imposing a further qualification for documents that are not 'of public record.'”
4. “Texas will not require the service of a subpoena to produce any witnesses (or documents in the possession of a witness) from current state legislators or their staff, the Texas Legislative Council, the Department of Public Safety, the staff of the Secretary of State, the staff of the Lieutenant Governor, or the staff of the Governor.”
5. “Texas will not assert any new privileges as to any documents or witnesses other than those already represented to this Court.”
6. “Texas will not violate any further discovery deadlines or Orders from this Court and will comply fully and in good faith with such discovery.”
Talk about a tight leash.
What would make a panel of three judges draft and sign off on an order that orders a party to a lawsuit to promise that it will comply with all court orders?
It does take some doing. Apparently, Texas did. When the lawsuit challenging Texas' Voter ID law was beginning, Texas requested expedited review so that it could implement the law before the election this November. The federal court in D.C. sided with Texas over the objections of the Department of Justice. In its order, the court cites with approval discovery efforts by DOJ in order to illuminate the issues for trial and unpack the relevant evidence so that all parties are prepared by the July 9th trial date. The court disapproved of Texas' conduct, however:
“Unfortunately, Texas has failed to act with the same diligence and sense of urgency. Although Texas states that its paramount objective is obtaining preclearance and implementing S.B. 14 in time for the November 2012 general election, Texas' actions reflect a wholly different view. Rather than engaging in expedited discovery consistent with its stated goal, Texas has taken steps that can only be interpreted as having the aim of delaying Defendants' ability to receive and analyze data and documents in a timely fashion. Texas has repeatedly ignored or violated directives and orders of this Court that were designed to expedite discovery, and Texas has failed to produce in a timely manner key documents that Defendants need to prepare their defense. Most troubling is Texas' conduct with respect to producing its key state databases, which are central to Defendants' claim that S.B. 14 has a disparate and retrogressive impact on racial and/or language minority groups. 1 The record reflects that these databases are voluminous, complex, and essential to the preparation of the opinions of Defendants' expert witnesses. Yet, according to Texas, the full production of such databases to the United States was only complete on May 4, 2012-35 days after they were initially due. (Dkt. No. 43 at ¶ 5). The production to Defendant-Intervenors is still not complete.”
The court's stance is summed thus:
“Although this Court still firmly believes that Texas is entitled to implement S.B. 14 for the November 2012 election if it is a valid law under the VRA, this Court will not continue to grant such an expedited review while Texas obstructs discovery in a manner that potentially severely prejudices Defendants' ability to prepare for trial.”
The full text of the order is available here.