Harris County Judge Wood's Motion to Compel Discovery from Plaintiffs; Proposed Order; Summary Calendar

    PorTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

  

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 

ATTORNEYS 

A PARTNERSHIP INCLUDING 

PROFESSIONAL CORPORATIONS 

  

TELEPHONE (713) 226-0600 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 

EVELYN V. KEYES TELEX 775-348 

(713) 226-0611 

July 3, 1989 

Clerk, U.S. District Court 
200 FE. Wall st.,, Suite 316 
Midland, Texas 79702 

Re: No. MO0O88-CA-154; League of United Latin American 
Citizens (LULAC), et al. v. James Mattox, Attorney 

General of Texas, et al.; In the United States District 
Court for the Western District of Texas, Midland-Odessa 
Division 

Dear Sir: 

Enclosed for filing in the above-referenced case is Harris 
County District Judge Sharolyn Wood's Motion to Compel Discovery 
From Plaintiffs, along with a proposed Order. 

Please verify filing by placing your stamp in the margin of 
the enclosed extra copy and return same to me in the self- 
addressed stamped envelope provided. 

By copy of this letter, all counsel are being served a copy 
of this filing by first class United States mail, postage 
prepaid. 

Sincerely yours, 

Evelyn V. Keyes 
EVK/cdf 
enclosures 

cc: Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

 



   
PorTER & CLEMENTS 

Clerk, U.S. District Court 
July 3, 1989 

Page -2- 

cc: Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill} 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Ms. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. Box 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

Mr. Ken Oden 
Travis County Attorney 
P. O. Box 1748 

Austin, Texas 78767 

 



  

PorRTER & CLEMENTS 

  

Clerk, U.S. District Court 
July 3, 1989 
Page -3- 

Mr. David R. Richards 
Special Counsel 
600 W. 7th Street 

Austin, Texas 78701 

Mr. Mark H. Dettman 

Attorney at Law 

P. O. Box 2559 
Midland, Texas 79702 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

 



THE UNITED STATES DISTRICT COURT 
THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS {LULAC), et al., 

Plaintiffs, 

¥. NO. MO-88-CA-154 

JIM MATTOX, Attorney General 
of the State of Texas, et al., 

Defendants. 

HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S 

MOTION TO COMPEL DISCOVERY FROM PLAINTIFFS 
  

  

Defendant/Intervenor Harris County District Judge Sharolyn 

Wood ("Wood") files this Motion to Compel Discovery from Plain- 

tiffs pursuant to Ped. BR. Civ. :P. 33(a),34(b) and 37¢(a) and, in 

support thereof, respectfully shows the Court the following: 

! This case was brought by the League of United Latin 

American Citizens ("LULAC") and certain named black and Hispanic 

individuals ("Plaintiffs") claiming that Texas' system for 

electing state district judges from county-wide districts 

discriminates against blacks and Hispanics by diluting their 

votes in certain target counties in violation of section 2 of the 

Voting Rights Act, 42 U.8.C., '§ 1973, and the Pourteenth and 

Fifteenth Amendments to the United States Constitution. 

2. The Court permitted Defendant Wood to intervene in this 

case on February 27, 1989. The same day, the Court permitted  



several other parties to intervene as Plaintiffs or Defendants. 

The next day, on February 28, 1989, Defendant Wood served her 

First Set of 1Interrogatories and Requests for Production of 

Documents, a copy of which is attached hereto as Exhibit "A," on 

the following original Plaintiffs: LULAC Councils #4434 and 

#4451, James Fuller, LULAC Statewide, Christina Moreno, and 

Aquilla Watson. The Plaintiffs have never responded to Defendant 

Wood's Interrogatories and Requests for Production. On June 22, 

1989, counsel for Defendant Wood conferred with counsel for 

Plaintiffs by telephone, seeking to discover why the Plaintiffs 

had never responded to her discovery requests. Counsel was 

informed that the Plaintiffs would attempt to discover what had 

happened. Since June 22, counsel for Defendant Wood has heard 

nothing from counsel for the Plaintiffs; nor has any effort been 

made by the Plaintiffs, either before or after that date, to 

respond to any requests for discovery from Defendant Wood. 

3. Federal Rule of Civil Procedure 37 provides that a 

party seeking discovery may apply to the Court for an order 

compelling an answer to an interrogatory upon the refusal to 

answer of the party upon whom the interrogatory has been served. 

Fed. R., Civ. P. 37(a)(2). Rule 37 further provides that, if in 

response to a request for inspection submitted under Rule 34, a 

party fails to respond that inspection will be permitted as 

requested, the discovering party may move for an order compelling 

inspection. 14.  



  

4. Rule 37 was designed to assist parties in Defendant 

Wood's position in obtaining discovery from recalcitrant parties. 

Rule 37 establishes a flexible means by which the Court may 

enforce compliance with discovery procedures through a broad 

choice of remedies and procedures. B.F. Goolrich Tire Co. Vv. 
  

Lyster, 328 P.2d4 ‘411, 415 {5th Cir. 1964). The rule is to be 

liberally construed. McCarthy v. Benton, 13 F.R.D, 454, 455 
  

(D.C.D.C. 1952). Even in civil ridhts actions, plaintiffs are 

not free to disregard the discovery rules, and any sanction which 

may be imposed for discovery abuse in a non-civil rights case may 

be imposed in a civil rights case. Prince v. Poulos, F.24 
  

{5th Cir. June 22, 1989) (1989 WI, 59164). A copy of Prince 

is attached hereto as Exhibit "B." 

Be Compliance with the rules of discovery is particularly 

important, and the issuance of an order to compel discovery is 

particularly appropriate, when, as in the instant case, the 

Plaintiff has placed certain claims in issue and then refuses to 

permit discovery regarding his basis for those claims. The 

Federal Rules of Discovery are designed to enable a defendant to 

elicit the basis for a plaintiff's allegations and to prepare his 

defenses to the charges made; they are not designed to permit a 

plaintiff to make broad-based allegations without any basis for 

belief in those allegations. Equal Employment Opportunity 
  

Commission v. Carter Copywriter, Div. of ACF Indus., Inc., 76 
  

F.R.D. 143, 144 (DC Mo. 1977), mandamus issued 577 F.2d 43, cert. 
  

 



  

denied 439. U.S. 1081, 99 S.Ct. 865 (1979). Once the plaintiff 

has placed his claims in issue, he cannot refuse to cooperate 

with the defendant in discovery concerning the crucial questions 

he has raised; and the willful failure to comply with a court 

order compelling discovery can be taken as an admission that the 

  

plaintiff's claim lacks merit. In re Agent Orange Prod. Liab. 

Litig., 611 F.Supp. 1290, 1294 (D.C.N.J. 1985). The refusal to 

answer legitimate and crucial questions is indefensible and 

properly invokes Rule 37. EEOC v. Carter Carburetor, 76 F.R.D. 
  

at 144. Since the Plaintiffs in this case have totally ignored 

all attempts by Defendant Wood, both formal and informal, to 

obtain discovery regarding the basis for their claims, an order 

compelling discovery and requiring them to answer fully and 

completely every interrogatory posed by Defendant Wood and to 

produce every document requested in Defendant Wood's document 

request is fully indicated. 

WHEREFORE, PREMISES CONSIDERED, Defendant/Intervenor Harris 

County District Judge Sharolyn Wood respectfully requests that 

the Court order the Plaintiffs to answer fully and completely the 

Interrogatories and Requests for Production served upon them by 

Defendant Wood and to produce all of the documents and things 

requested therein at least 45 days prior to trial so that 

Defendant Wood may adequately prepare her defense to the Plain- 

tiffs' claims; and she requests such other and further relief in 

law and in equity to which she may show herself justly entitled. 

 



  

OF COUNSEL: 

PORTER & CLEMENTS 
John E. O'Neill 
Evelyn V. Keyes 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

(713) .226-0600 

Michael J. Wood 
Attorney at Law 

440 Louisiana, Suite 200 
Houston, Texas 77002 

(713): 228-5105 

Respectfully submitted, 

PORTER & CLEMENTS 

  

  

“er... Na | 
Eugene Clements Mio on 

700 Louisiana, Suite 3500 
uston, Texas 77002-2730 

(713) 226-0600 

  

il 73g { Z / 

By . JN i LAAN or ie cS Lin A — 

Darrell Smith -£ 
Attorney at Law | | 
10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 
(512) 641-9944 

  

ATTORNEYS FOR HARRIS COUNTY 

DISTRICT JUDGE SHAROLYN WOOD 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that on the 2% day Of July, 1989, a true 

and correct copy of the above and foregoing Harris County 

District Judge Sharolyn Wood's Motion to Compel Discovery From 

Plaintiffs was served upon counsel of record in this case by 

first class United States mail, postage prepaid, addressed as 

follows: 

  

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 

San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill 

NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street 
16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 

Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 

Ms. Mary F. Keller, First Assistant Attorney General 

Ms. Renea Hicks, Spec. Assistant Attorney General 

Mr. Javier Guajardo, Spec. Assistant Attorney General 

P. O. Box 12545 
Capitol Station 
Austin, Texas 78701 

 



  

Mr. Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway 
Suite 121 
Dallas, Texas 75203 

Mr. Ken Oden 
Travis County Attorney 

P. O. Box 1748 
Austin, Texas 78767 

Mr. David R. Richards 
Special Counsel 
600 W. 7th Street 

Austin, Texas 78701 

Mr. Mark H. Dettman 

Attorney at Law 

P. O..Box 2559 

Midland, Texas 79702 

Mr. Robert EH. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

  

Eels, Maye 
Evelyn V. Keyes 

WO002/35/cdf 

 



THE UNITED STATES DISTRICT COURT 
THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs, 

Vv. NO. MO-88-CA-154 

JIM MATTOX, Attorney General 
of the State of Texas, et al., 

Defendants. 

  

Came on for consideration Defendant Harris County District 

Judge Sharolyn Wood's Motion to Compel Discovery from Plaintiffs, 

and the Court, having reviewed Defendant Wood's Motion and the 

response thereto, if any, and having considered the arguments of 

counsel, is of the opinion that Defendant Wood's Motion should be 

GRANTED. It is therefore 

ORDERED that Plaintiffs' LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS ("LULAC"), et. al. answer Defendant Wood's First Set of 

Interrogatories and Requests for Production and produce all of 

the documents and things requested therein on or before July 31, 

1989. 

SIGNED this day of 
  

  

UNITED STATES DISTRICT JUDGE 

W0002/35/p2  



E
X
H
I
B
I
T
 

A 

 
 

 



  

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

V. 

JAMES MATTOX, Attorney General 

of the State of Texas, et al., 

TO: 

THE UNITED STATES DISTRICT COURT 

THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

Plaintiffs, 

§ 
§ 
§ 
§ 
§ : 
§ NO. MO-88-CA-154 

§ 
S 
S 
N 

Defendants § 
§ 

DEFENDANT WOOD'S FIRST SET OF 

INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS 
  

Plaintiffs League of United Latin American Citizens 

("LULAC") Councils #4434 and #4451 and each of the 

following: James Fuller, and LULAC Statewide, by and through 

their attorney of record, Rolando Rios, Esg., Southwest 

Voter Registration & Education Project, 201 N. St. Mary's, 

Suite 221, San Antonio, Texas 78205; 

Christina Moreno, by and through her attorney of record, 

Susan Finkelstein, Texas Rural Legal Aid, Inc., 201 N. St. 

Mary's, Suite 600, San Antonio, Texas 78205; and 

Agquilla Watson, by and through her attorney of record, 

William L. Garrett, Esg., Garrett, Thompson & Chang, 

8300 Douglas, Suite 800, Dallas, Texas 75225; 

In accordance with the provisions of Rules 33 and 34 of the 

Federal Rules of Civil Procedure, Intervenor-Defendant Sharolyn 

 



Wood submits these Interrogatories and Requests for Production of 

Documents to League of United Latin American Citizens, Christina 

Moreno, Aquilla Watson, James Fuller, and LULAC Statewide 

("Plaintiffs") in the above captioned cause of action. 

Plaintiffs are to each to answer interrogatories within 15 

days, but may collectively produce all items responsive to these 

requests at the offices of Porter & Clements, 3500 RepublicBank 

Center, 700 Louisiana, Houston, Texas, on or before 10:00 a.m. on 

April 3, 1989, 

DEFINITIONS AND INSTRUCTIONS 
  

DEFINITIONS: 
  

(a) Definition of "request": request shall mean these request reguest 

Interrogatories and Requests for Production of Documents. 
  

(b) Definition of "document": for purposes of this 
  

request, a document shall include any method of reducing and 
  

recording information in written form, whether a memorandum, a 

letter, a note, etc, including without limitation papers, books, 

accounts, drawings, graphs, charts, photographs, electronic or 

videotape recordings, computer disks or tapes or other forms of 

computer memory storage, and other data compilations from which 

information can be obtained and translated, if necessary, by you, 

into reasonably usable form. The term document shall also be 
  

understood to include any other tangible thing which constitutes 

or contains matter relevant to the subject matter of this suit.  



  

tc} Definition. of "identify": for purposes of this 
  

request, (i) when used with reference to a person or entity, the 

term "identify", shall mean to state the full name of such person   

or entity and his/her/its last known address and telephone 

number; (ii) when used with reference to a document, the term 
  

"identify" shall mean to describe the document, its date of   

  

creation and the name of its author. 

(d) Definition of "or": for purposes of this requegt, "ox" 

shall mean and/or. 

(e) Definition of "targeted counties": for purposes of 
  

this request, the term "targeted counties" shall mean each of 
  

those Texas counties designated by Plaintiffs as the objects of 

this cause of action, including Harris, Dallas, Ector, Mclennan, 

Tarrant, Midland, Travis, Jefferson, Galveston, Bell, Lubbock, 

Fort Bend, Brazos, Brazoria, Taylor, Wichita, Angelina, Gregg, 

Smith, Atascosa, PFrio, Karnes, La Salle, Wilson, Aransas, Bee, 

Live Oak, McMullen, San Patricio, Caldwell, Comal, Hays, Calhoun, 

De Witt, Goliad, Jackson, Refugio, Victoria, Castro, Hale, 

Swisher, Culberson, El Paso, and Hudspeth. 

INSTRUCTIONS: 
  

(a) The Interrogatories which follow are to be answered 

separately and fully, in writing and under oath, signed by the 

person making said answers. 

(b) This request applies to all documents and information 
  

within your possession, custody or control. 

 



  

(c) Documents produced in response hereto shall be   

organized and designated to correspond to the categories in this 

request or produced as they are kept in the usual course of 

business. 

(d) A copy of your response to each Request for Production 

should be served on the undersigned attorneys within thirty (30) 

days after service of this request. 

(e) If privilege or work product protection is claimed as a 

ground for withholding production of one or more documents in 
  

whole or in part, the response hereto shall identify the date of 

the document, its author, its subject matter, its length, its   

attachments, if any, its present custodian and all recipients 

thereof, whether indicated on the document or otherwise, and 
  

shall describe the factual basis for the claim of privilege or 

work product protection in sufficient detail to permit the Court 

to adjudicate the validity of the claim of privilege or protec- 

tion. 

(f) In the event that a document called for by this request 
  

has been destroyed, the response hereto shall identify the 

preparer of the document, its addressor (if different), address- 
  

ee, each recipient thereof, each person to whom distributed or 

shown, date prepared, date transmitted (if different), date 

received, a description of its contents and subject matter, the 

date of its destruction, the manner of its destruction, the name, 

title and address of the person authorizing its destruction, and 

 



  

the reason(s) for its destruction, the name, title and address of 

the person destroying the document and a description of efforts 
  

to locate the document or recording and copies of it. 

(g) This request shall be deemed to be continuing so as to 

require supplemental response in accordance with Rule 26 (e) of 

the Federal Rules of Civil Procedure. 

 



INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS 
  

interrogatory No. 1: 
  

As to each person you expect to call as an expert witness in 

the trial of this case: 

(a) identify each person; 
  

(b) state the matter (s) on which each person is expected to 

testify; 

(c) state the substance of the facts and opinions to which 

the person is expected to testify, and summarize the grounds for 

each opinion; and 

(d) identify each person whom you have retained as a   

consulting expert in connection with the instant litigation, to 

the extent such person's opinion will be relied upon, in whole or 

in part, by any person identified in Answer to subpart (a) 

hereof. 

Answer: 

Request for Production No. 1: 
  

Produce for inspection and copying each and every document, 
  

including, without limitation, each and every demographic report 

for study or compilation of demographic data, that has been  



  

submitted to, prepared by, or used by each person you expect to 

call as an expert witness, including his/her associates, with 

regard to the subject matter of this litigation and all documents 
  

furnished to persons identified in Answer to Interrogatory No. 

1(d), above. 

Interrogatory No. 2: 
  

State the qualifications of each expert witness and/or 

consulting expert identified in response to Interrogatory No. 1 
  

to render an opinion with respect to the matters for which you 

have retained his/her services. 

Answer: 

Interrogatory No. 3: 
  

Identify all officers and members of LULAC resident in 
  

Harris County, Texas. 

Answer: 

 



  

Request for Production No. 2: 
  

Produce for inspection and copying all documents that 
  

support or otherwise refer, relate, or pertain to the claim that 

blacks and Hispanics are denied the right to participate equally 

in the judicial electoral process in Harris County. 

Interrogatory No. 4: 
  

Describe all social, economic, and political forces that you 

claim have caused the inability of Hispanics and blacks to elect 

candidates of their choice to the Texas judiciary in Harris 

County under the at large system of judicial election. 

Answer: 

Request for Production No. 3: 
  

Produce for inspection and copying all documents that 
  

evidence any local interaction of economic, social and political 

forces that deprives or has deprived Hispanics and blacks of the 

right to participate equally in the judicial system process in 

Harris County. 

Interrogatory No. 5: 
  

State the factual basis for your claim that you have 

personally been denied the right to elect state district judges 

of your choice. 

Answer: 

 



  

Request for Production No: 4: 
  

Produce for inspection and copy all dbcuments which support 
  

or otherwise relate to your answer to Interrogatory No. 6. 

Interrogatory No. 6: 
  

State whether you are alleging that the system of electing 

state district judges at large in Harris County is the result of 

an intent to discriminate against blacks and/or Hispanics. 

Answer: 

Request for Production No. 5: 
  

Produce for inspection and copying all documents that refer, 
  

relate, or pertain to your answer to Interrogatory No. 7. 

Interrogatory No. 7: 
  

(a) State whether or not you are claiming that the system, 

currently in effect in Harris County, Texas, of electing district 

judges at large to serve specialized functions, such as the 

adjudication of civil disputes or criminal disputes or family law 

matters, should be abolished or otherwise changed; and (b) if 

your answer to part (a) is affirmative, describe in detail how 

you would change said system; and (c) if negative, describe fully 

how each single member judicial district could be drawn to 

preserve judicial specialization. 

Answer: 

 



  

Request for Production No. 6: 
  

Produce for inspection and copying all documents which 
  

refer, relate, or pertain to your answer to Interrogatory No. 8. 

Request for Production No. 7: 
  

Produce for inspection and copying all documents that 
  

indicate the size of the pool of potential black and Hispanic 

attorneys eligible for election as state district judges in 

Harris County, including, without limitation, all documents that 
  

indicate the number of black and Hispanic attorneys in Harris 

County and/or their years in practice. 

Request for Production No. 8: 
  

Produce for inspection and copying all documents that 
  

indicate the percentage of black and Hispanic attorneys among all 

attorneys eligible to run for election as state district judge in 

Harris County. 

Request for Production No. 9: 
  

Produce for inspection and copying all documents that 
  

indicate the number and percentage of registered black, Hispanic, 

and other voters in Harris County. 

Interrogatory No. 8: 
  

Describe the location and population of each and every 

minority-majority judicial election district, whether black, 

Hispanic or combined, that you claim could be drawn in Harris 

County. 

Answer: 

10 

 



  

Request for Production No. 10 
  

Produce for inspection and copying all documents that 
  

support or otherwise relate to your answer to Interrogatory 

No. 8. 

Request for Production No. 11: 
  

Produce for inspection and copying each and every document 

that supports or otherwise relates or pertains to the claim in 

913 of Plaintiff's First Amended Complaint (the "Complaint") that 

Harris County contains a sufficiently compact minority population 

for the drawing of at least one single member judicial district 

in which blacks and Hispanics together would constitute the 

majority of voters. 

Request for Production No. 12: 
  

Produce for inspection and copying each and every document 
  

that supports or otherwise relates or pertains to the claim in 

914 of the Complaint that the counties listed in g13 contains 190 

judicial districts, and a combined minority population of almost 

30%, but that only 5.3% of the judges are minority judges. 

Request for Production No. 13: 
  

Produce for inspection and copying each and every document 

that supports or otherwise relates or pertains your claim in q15 

of the Complaint that Harris County contains sufficient black 

population for the drawing of at least one majority black 

single-member district referenced in that paragraph. 

11 

 



  

Request for Production No. 14: 
  

Produce for inspection and copying all documents that 
  

support or otherwise relate or pertain to your claim in q16 of 

the Complaint that the counties listed in 915 contain 164 

Judicial districts and have a black population of 16.4% but that 

only 4.3% of the district judges in those counties are black. 

Request for Production No. 15: 
  

Produce for inspection and copying all documents that 
  

support or otherwise relate or pertain to your claim in {17 of 

the Compiaint that Harris County has a sufficient Hispanic 

population for the drawing of at least one majority Hispanic 

single member district. 

Request for Production No. 16; 
  

Produce for inspection and copying all documents that 
  

support or otherwise relate to your claim in q18 of the Complaint 

that the counties listed in 17 contain 148 judicial districts 

and a Hispanic population of 15.4% and that only 2.7% of the 148 

district judges are Hispanic. 

Interrogatory No. 9: 
  

State the basis for your omission from this suit of all 

other counties in Texas besides the targeted counties, including, 
  

without limitation, the following counties: Cameron, El Paso, 

Bexar, Hidalgo, Webb, Duval, Kleberg, Willacy, Uvalde, Maverick, 

Zavala, Dimmit, Kinney, Val Verde, Brooks, Jim Hogg, Jim Wells, 

San Patricio, Starr, and Zapata. 

Answer: 

12 

 



  

Interrogatory No. 10: 
  

State whether or not you are claiming that blacks and 

Hispanics are or have been denied the right to participate fully 

in the election of state district judges generally in Texas or 

only in certain counties and explain the reasons for your answer. 

Answer: 

Reguest for Production No. 17: 
  

Produce for inspection and copying all documents that 
  

indicate the number and percentage of black, Hispanic and other 

voters in each of the non-targeted counties in Texas. 

Reguest for Production No. 18: 
  

Produce for inspection and copying all documents that 
  

indicate the size of the pool of black and Hispanic attorneys 

eligible for election as state district judges in each of the 

non-targeted counties in Texas, including without limitation all 

documents that indicate the number and/or percentage of such   

attorneys in each county and their number of years in practice. 

Interrogatory No. 11: 
  

State the factual basis for your claim in 924 of the 

Complaint that minorities are politically cohesive in Harris 

County. 

Answer: 

13 

 



  

Request for Production No. 19: 
  

Produce for inspection and copying all documents that 
  

support or otherwise relate to your answer to Interrogatory 

Ko. 10. 

Interrogatory No. 12: 
  

(a) State whether you are alleging that black voters and 

Hispanic voters vote for state district judges on the basis of 

race in Harris County and, if so, the reasons therefor; and (Db) 

state whether you are alleging that black voters and Hispanic 

voters will combine their votes in districts where together they 

constitute a majority of the electorate to vote for a minority 

judicial candidate over a white candidate and, if so, the reasons 

therefor. 

Answer: 

Request for Pro@uction No. 20: 
  

Produce for inspection and copying all documents that 
  

provide the factual bases for your answer to Interrogatory 

No. 11, 

Request for Production No. 21: 
  

Produce for inspection and copying all documents that refer, 
  

relate, or pertain to your answer to Interrogatory No. 12. 

14 

 



  

Interrogatory No. 13: 
  

State whether you are alleging that the determination of the 

size and location of state judicial election districts is or 

should be made on the basis of population and explain the reasons 

for your answer. 

Answer: 

Interrogatory No. 14: 
  

State whether you are alleging that, and, if so, why, under 

a single-member district system venue should lie in the single- 

member district as opposed to the county. 

Answer: 

Respectfully submitted, 

PORTER & CLEMENTS 

  

    

   

Eugene Clements a 
00 Louisiana, Suite 3500 
ouston, Texas 77002-2730 
(713) 226-0600 

  

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL: 

PORTER & CLEMENTS 
John E. O'Neill 
Evelyn V. Keyes 
700 Louisiana, Suite 3500 

Houston, Texas 77002-2730 

(713) 226-0600 

15 
am 

 



  

CERTIFICATE OF SERVICE 
  

A 1 hereby certify that on this PE — day of February, 1989 
a true and correct copy of the above and foregoing document was 
mailed to counsel of record in this case by first class United 
States mail, postage pre-paid, addressed as follows: 

William L. Garrett, Esq. 
Brenda Hall Thompson, Esq. 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 

Dallas, Texas 75225 

Rolando L. Rios, Esq. 
Southwest Voter Registration & 

Education Project 
201 N, St. Mary's, Suite 221 
San Antonio, Texas 78205 

Susan Finkelstein, Esq. 
Texas Rural legal Aid, Inc. 
201 N. 8t. Mary's, Suite 600 

San Antonio, Texas 78205 

Julius Levonne Chambers, Esq. 
Sherrlilyn A. Ifill, Esq. 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street 

16th Floor 

New York, New York 10013 

Gabrielle XK. McDonald, Esq. 
Matthews & Branscomb 

301 Congress, Avenue 

Suite 2050 

Austin, Texas 78701 

Jim Mattox, Attorney General of Texas 
Mary F. Keller, First Assistant Attorney General 
Renea Hicks, Spec. Assistant Attorney General 
Javier Guajardo, Spec. Assistant Attorney General 
P. O. Box 12548 
Capitol Station 
Austin, Texas 78701 

16 

 



  

W0001/08 

Edward B. Cloutman, III, Esq. 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 

E. Brice Cunningham, Esq. 
777 So. R.L. Thornton Freeway 
Suite 121 

Dallas, Texas 75203 

Ken Oden, Esq. 
Travis County Attorney 
P. O. Box 1748 
Austin, Texas 78767 

David R. Richards, Esq. 
Special Counsel 
600 WW, Tah Skegst 
Austin, Texas 78701 

Mark H. Dettman 

Attorney at Law 

P. OO. Box 2559 

Midland, Texas 79702 

Parrell Smith, Esq. 

Attorney at Law 

10999 Interstate Highway 10, #905 
San Antonio, Texas 78230 

Michael J. Wood, Esq. 
Attorney at Law 

440 Louisiana 

Houston, Texas 77002 

Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

Cowl. A» 
  

Evelyn V. (Keyes 

17 

 



EXHIBIT 
B 

 
 

 



  

PAGE 1 

Citation Rank(R) Database Mode 

-—— F.2d =——- R 1 OF 35 CTAS P 

1988 WL 59184 (5ih Cir.{Tex.)) 

Wayman L. PRINCE, Plaintiff-Appellant, 

V. 

Michael J. POULOS, et al., Defendant-Appellees. 

No. 88-6118 

Summary Calendar. 

United States Court of Appeals, 

Fifth Circuit. 

June 22, 1888. 

Plaintiff appealed from order of the United States District Court for the 

Southern District of Texas, Lynn N. Hughes, J., which dismissed complaint for 

discovery abuse. The Court of Appeals, Gee, Circuit Judge, held that: (1) 

dismissal was not an abuse of discretion, and (2) attorney fees were adequately 

supported by documentation. 

Affirmed. 

£473 

170BK712 

FEDERAL COURTS 

K. Briefs in general. 

C.A.5 (Tex.) 19849. 

Overnight courier service is not a public authority and thus not a form of 

“mail” for purposes of appellate rule that briefs shall be deemed filed on the 
day of the mailing if the most expeditious form of delivery by mail, excepting 

special delivery, is utilized. F.R.A.P.Rule 25(a}, 28 U.S5.C.A. 

Prince v. Poulos 

mm Rod ~—=,.. 1988 WL BE1E4 (Bth Cir.{Tex.)) 

See publication Words and Phrases for other judicial constructions and 

definitions. 

£2] 

170BK712 

FEDERAL COURTS 

K. Briefs in general. 

C.A.5 (Tex. 1889. 

Brief mailed by certified registered mail on the date that brief was due was 

timely filed. F.R.A.P.Rule 25(a), 28 U.S5.C.A. 

Prince v. Poulos 

wea Rell —=== 1080 WU E0164 (Sth. Cir. (Tex. )) 

{31 

170AK1278 

FEDERAL CIVIL PROCEDURE 

K. Failure to respond. 

C.A.5 (Tex, ) 1883. 

It was not an abuse of discretion to dismiss for violation of discovery orders 

where plaintiff had consistently refused to comply with orders or engage in 

piecemeal disclosure designed to impede recovery, court had previously twice 

imposed monitored sanctions for discovery abuses, conduct was prejudicial to 

the defendant's case, and the defendant himself was an attorney who was or 

should have been aware of his discovery obligations. Fed.Rules Civ.Proc.Rule 

SH MZHC), ig), 28:U.5.C.4. 

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--- F.2d ---- PAGE 2 

  

Prince v. Poulos 

wi EF 20 ====_ 1089 Wl. 58164 (5th Cir.{(Tex.)) 

[4] 

170AK1278 

FEDERAL CIVIL PROCEDURE 

K. Failure to respond. 

C.A.5 (Tex.) 19838, 

Even in civil rights actions, plaintiffs are not free to disregard rules of 

discovery and any sanction which may be imposed for discovery abuse in a 

noncivil rights case, including dismissal with prejudice, may be imposed in a 

civil rights case. Fed.Rules Civ.Proc.Rule 37(d), 28 U.S5.C.A. 

Prince v. Poulos 

Fed === OBO YW. S164 AGith Cir.(Tex.)) 

[5] 

170AK1278 

FEDERAL CIVIL PROCEDURE 

K. Failure to respond. 

C.A.5 (Tex.) 1988. 

Amount awarded as attorney fees as sanction in connection with dismissal for 

discovery violations was supported by the 60 pages of invoices submitted by 

counsel. Fed.Rules Civ.Proc.Rule 37(b)(2)(C), 28 U.S5.C.A. 

Prince v. Poulos 

mee Feld m=r-, 1989" Yi 59164 (Lith Cir.{(Tex. }) 

[6] 

170AK1278 

FEDERAL CIVIL PROCEDURE 

K. Failure to respond. 

L.8.5 {Taex.) 18889, 

Plaintiff's failure to object to award of costs when action was dismissed as 

discovery sanction waived objection that costs were not specifically requested 

during the hearing. Fed.Rules Civ.Proc.Rules 37(d), 54(d), 28 U.S5.C.A. 

Prince v. Poulos 

wwe FL 20 === 1980 WL SOIE4 (Sith Cir.{Tax.)) 

Wayman L. Prince, Houston, Tex., for plaintiff-appellant. 

John H. Smither, J. Alfred Southerland, Houston, Tex., for defendants- 

appellees. 

Appeal from the United States District Court for the Southern District of 

Texas. 

Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges. 

GEE, Circuit Judge: 

The appellant in this action contends that the district court abused its 

discretion by dismissing his complaint with prejudice as a sanction for 

discovery abuse. The appellant also contends that the district court erred in 

awarding the appellees $8,362.34 in attorney's fees incurred as a result of the 

appellant's failure to comply with discovery and in awarding appellees 

$6,512.30 in costs. We find that the district court did not abuse its 

discretion in dismissing the appellant's complaint. We further find that the 

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we F120 meme PAGE 3 

amount of attorney's fees awarded to the appellees was reasonable and that 

costs were properly assessed against the appellant. Consequently, we affirm 

the judgment of the district court. 

I. Facts 
In September 1986 the appellant filed a complaint alleging violations of 42 

U.S.C. ss 1981 and 1983, wrongful termination, negligence, fraud and bad 
faith. The complaint consisted of 175 paragraphs and 11 exhibits for a total 
of 181 pages. On October 1, 1886, the appellee moved to strike the complaint 

and filed notice to take the appellant's deposition on October 13, 1986. The 

appellant failed to appear at that deposition. Consequently the appellee moved 

under Rule 37(d) for an order compelling the appellant to appear at his 
deposition and imposing a monetary sanction in the amount of $500. 

On April 9, 1887, the appellee filed a second motion to compel discovery. On 
April 13, 1987, the district court held a court conference and ordered the 
appellant to produce certain documents and answer certified questions no later 

than May 11, 1987. The court held a second court conference on May 6, 1987. 

At this time the court informed the appellant's attorney that her client was 
obligated to make full disclosure of the matters previously discussed and to be 

deposed regarding these matters. The appellant appeared for his deposition as 

scheduled, but failed to provide all of the documents requested and refused to 

answer questions about those documents. On May 21, 1987, the appellees filed a 

motion to dismiss based on the appellant's failure to comply with the court's 

order. The court denied that motion but fined appellant $500 for failure to 

comply with discovery. The court also warned the appellant that "any further 

refusal to answer all questions would result in the dismissal of his suit." 

On April 4, 1988, the appellee moved to compel the appellant to produce 
certain documents for testing. On April 15, 1988, the appellee moved to compel 

a financial audit of the appellant. On May 25, 1988, the court granted both 

motions and ordered the appellant "to turn over all of his financial 

instruments. The order stated that this material was to be produced by June 2, 

1988." On August 15, 1988, the appellee moved under Rule 37(b)(2)((C) to 

dismiss appellant's complaint for failure to produce the information that he 

had been ordered to produce. 

On October 13, 1988, the district court held a pre-trial conference hearing. 

At this hearing the appellant conceded that he had not yet produced all the 

required documents. The appellant contended that he was "diligently" 

attempting to comply with the request. He admitted, however, that he began to 

do so "approximately a week and a half ago." This conference took place 

eighteen months after the material was originally requested, approximately five 

months after the appellant had been ordered to produce the documents, and four 

months after the date on which production was due. At the hearing on October 

13, 1988, the district court granted the appellee's motion to dismiss. On 

October 14, 1988, the court heard evidence regarding the extent to which the 

appellee's attorney's fees were increased by the appellant's failure to comply 

with discovery orders. Following that hearing the court awarded appellees 
$8,262.34 in attorney's fees. Following entry of judgment the appellees filed 

a Bill of Costs in the amount of $5,512.30. Appellant did not file an 

objection to the allowance of the Bill. Consequently, the Clerk taxed costs in 

this amount against the appellant. 

II. Analysis [FN1] 

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® ¢ 
--- F.2d ---- PAGE 

A. Dismissal With Prejudice 

[1102] A district court's decision to dismiss a complaint with prejudice 
as a sanction for violation of a discovery order may be reversed only if it 
amounts to an abuse of discretion. National Hockey League v. Metropolitan 
Hockey Club, Inc., 427 U.S. B39, 642, 96 S.Ct. 2778, 2780-81, 49 L.Ed.2d 747 
{ 1975). 

In determining whether a district court abused its discretion, our precedent 
has addressed a number of considerations. First, dismissal is authorized only 

when the failure to comply with the court's order results from willfulness or 
bad faith, and not from the inability to comply. Next, dismissal is proper 
only in situations where the deterrent value of Rule 37 cannot be substantially 
achieved by the use of less drastic sanctions. Another consideration is 
whether the other party's preparation for trial was substantially prejudiced. 
Finally, dismissal may be inappropriate when neglect is plainly attributable to 
an attorney rather than a blameless client, or when a party's simple negligence 
is grounded in confusion or sincere misunderstanding of the court's orders. 
Bluitt v. Arco Chemical Co., 777 F.2d 188, 180-191 (5th Cir.1985). 
[31 Applying these standards to the facts of this case we have no difficulty 

in concluding that the district court did not abuse its discretion. First, the 
appellant's failure to comply with a discovery order was not a single isolated 
instance. Rather, the appellant consistently refused to comply with such 
orders or engaged in piece-meal disclosure designed to impede discovery. As 
the district court noted, "At ... best, ... [the appellant has] been 
disingenuous with the Court and ... [his] behavior has ranged downward from 
there.” 

Second, prior to dismissing the appellant's complaint the district court twice 

imposed monetary sanctions for discovery abuses and warned the appellant that 
further failure to comply with such orders would result in dismissal of his 
complaint. Despite this fact, the appellant continued to ignore discovery 
orders. It is clear, therefore, that other less drastic sanctions were 

ineffective in curbing the appellant's discovery abuses. 

Third, we find that the appellant's conduct prejudiced the appellees’ case. 

The appellant was seeking damages for lost past and future wages. Without the 
financial information sought by appellees, they would be unable to determine 

the validity of the appellant's claim. Further, the appellees contended that 

the appellant was discharged for meeting with and working for private clients 
on company time. The records sought by the appellee were highly relevant if 
not essential to establishing the validity of the appellees’ contention. The 
appellant's failure to disclose the information, consisting of massive 

quantities of complex financial documents, until three months prior to trial, 

was clearly prejudicial to the appellee. 

[4] Fourth, this is not a case in which a blameless client was made to suffer 
for his attorney's misdeeds. The appellant himself is an attorney who was, or 

should have been, fully aware of his discovery obligations. In light of these 
facts we conclude that the district court did not abuse its discretion in 
dismissing the appellant's complaint. [FN2] 

B. Attorney's Fees 
[5] "We review the district court's award of ... attorney's fees under 

the abuse of discretion standard. In requesting attorney's fees the appellees’ 
attorneys submitted sixty pages of invoices listing the date on which services 

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® ® 
--- F.2d ---- PAGE & 

were rendered, the attorney who performed the services, the service performed, 
and the hours expended in performing those services. In some instances the 
number of hours expended had been "lined out” and adjusted hours written in. 
In every single instant in which the number of hours expended had been adjusted 
the new figure was lower than the original figure. Mr. Smither, one of the 
attorneys for the appellees, testified that the hours "lined out" regarded 
matters that were not "attributable to the multiplication of litigation." 
Smither testified that in each instance the billing attorney informed the 
firm's central accounting department of the number of hours to line out. The 
documents submitted also included itemizations of disbursements made on behalf 

of the appellees. 

Despite this detailed itemization of attorney's fees and expenses incurred, 

the appellant maintains that the district court erred in awarding attorney's 

fees because the fees were neither reasonable nor substantiated. Additionally, 

the appellant contends that the award of fees was improper because he had no 

opportunity to cross-examine the attorneys who authorized the line-outs. In 

McFarland v. Gregory, 425 F.2d 443 (5th Cir.1970), we held that it is error for 
the district court to award attorney's fees without giving the opposing party 
the opportunity to cross-examine the person upon whose affidavit the fees are 
based. In McFarland, however, the sole basis for the award of the fees was the 
affidavit. In this case the award was based on the documentation submitted by 

the appellees and the testimony of Mr. Smithers. The appellant had the 
opportunity to cross-examine Mr. Smithers and, in fact, did so. We, therefore, 

find that the appellant was not denied the opportunity for cross-examination 
regarding attorney's fees. We further find that the fees were reasonable and 
substantiated. The award of attorney's fees was, therefore, proper. 

C. Costs 

[BE] The appellant contends that the appellees should not be awarded costs 

because they did not specifically request them during the hearing. Rule 54(d) 

of the Fed.R.Civ.Proc. states that "... costs shall be allowed as a matter of 

course to the prevailing party unless the court otherwise directs. (emphasis 

added). This rule further provides "[oln motion served within five days 

[after costs are taxedl, the action of the Clerk may be reviewed by the 

court." Fees were properly awarded under this rule and the appellant failed to 

object to the costs. Consequently, we find that the appellant has waived his 
objection to the Bill of Costs. 

IIT. Conclusion 

The appellant in this case has consistently demonstrated his complete 

disregard for the rules of discovery and the orders of the court. 

Consequently, we find that the district court did not abuse its discretion in 

dismissing the appellant 's claim with prejudice. We also find that the 

district court's award of attorney's fees and costs was proper. Consequently, 
the judgment of the district court is 

AFFIRMED. 

FN1. The appellant moved to strike the appellee's brief on the grounds 

that it was not timely filed. Appellees’ brief was due on March 29, 1989. 

Appellees mailed their brief via certified registered mail on that date. 

Rule 25(a) of the Fed.R.App.P. provides that "briefs ... shall be deemed 

filed on the day of mailing if the most expeditious form of delivery by 

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¥ > 
BEF Dd PAGE E 

  

mail, excepting special delivery, is utilized." The appellant contends 
that certified mail is not first class. The Post Office disagrees. The 
appellant further contends that Federal Express, not first class, is the 
most expeditious form of mail. Webster's defines mail as letters 
conveyed under public authority.” Webster's New Collegiate Dictionary 
(1873). Since Federal Express is not a public authority, they are not a 
form of "mail" and need not be utilized under Rule 25(a). The appellees’ 
brief was timely filed and the appellant's motion to strike is denied. 

FNZ. The appellant states correctly that “[iln civil rights actions, 
pleadings are to be liberally construed such that a district court is 
warranted in granting a motion to dismiss only where plaintiff can prove no 
stated facts entitling him to relief." Cubellis v. Costar, BS F.R.D. 49 
(W.D.Pa.1874). Therefore, appellant contends, his complaint should not 
have been dismissed prior to trial because it was not frivolous, 
unreasonable, or without foundation. Had the district court dismissed this 

complaint for failure to state a claim the appellant's contention might 

have had some merit. Even in Civil Rights actions, however, plaintiffs are 
not free to disregard the rules of discovery. Any sanction which may be 

imposed for discovery abuse in a non-civil rights case, including dismissal 
with prejudice, may also be imposed in a civil rights case. See, e.g., 
Morton v. Harris, 628 F.2d 438 (5th Cir.1980) cert. denied, 450 U.S. 1044, 
101 S.Ct. 1766, 68 L.Ed.2d 243 (1981) in which we affirmed the dismissal of 

a pro se attorney's race discrimination suit for his willful and deliberate 

failure to comply with discovery orders. 

END OF DOCUMENT 

COPR. (C) WEST 1983 NO CLAIM TO ORIG. U.S. GOUT. WORKS