Draft Proposed Discovery Plan

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MICHAEL F. EASLEY Department of Justice 

ATTORNEY GENERAL P. 0D. BOX 620 REPLY TO: Tiare B. Smiley 

RALEIGH Special Litigation 

276020629 (919) 716-6900 
FAX: 919) 718-6783 

TELECOPIER TRANSMITTAL SHEET 

TO: Adam Stein 919-967-4953 

Todd Cox 202-682-1312 

Norman Chachkin 212-226-7592 

FAX NUMBER: See above 

FROM: Tiare B. Smiley, Special Deputy Attorney General 

TELEPHONE NUMBER: (919) 716-6900 

DATE: July 12, 1999 

SUBJECT: Stipulations and Discovery Schedule in Cromartie 

NUMBER OF PAGES INCLUDING TRANSMITTAL SHEET: 7 

Attached is a copy of the draft scheduling order | circulated to all parties, with my hand-written 

notes from a meeting with Robinson this marning. In addition to increasing the number of 
depositions to 15, he has his own version of paragraph 8, which is alsa attached and we need 

to talk about. It looks like we are fairly close, except for a few twists by ROE. He is going to 

call me this afternoon on his way back from Lillington and he will be in DC on Tuesday. | told 
him | thought Wednesday was a likaly target date for resolving this. [ Told him his motion was 

off the table unless wa reached agreement aon the scheduling order. Lets talk today, especially 
if there are questions you want put to ROE today, and put our thinking hats on and talk again 

Tomorrow. 

CONFIDENTIALITY NOTE 

THE INFORMATION CONTAINED IN THIS FACSIMILEMESSAGE IS LEGALLY PRIVILEGED AND 

CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR 
ENTITY NAMED ABOVE. 

3 
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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4-06-CV.104.BO(3) 

MARTIN CROMARTIE, er al., 

Plaintiffs, DRAET 
Y. 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the State of North 

Carolina, er al, PROPOSED 

DISCOVERY PLAN 

Defendants, 

and 

ALF RED SMALLWOOD, et al., 

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Defendant-Intervenors. 

Pursuant to Fed. R. Civ. P. 26, the parties, represented by Robinson O. Everett, Counsel for 

Plaintiffs, Tiare B. Smiley and Edwin M. Speas, Jr., Counsel] for Defendants, and Adam Stein. 

Counsel for Defendant-Intervenors.met on July 1, 1999, for the purpose of establishing a discovery 

plan. The parties agree that this litigation should be resolved as quickly as possible in order to 

minimize the potential for disruption to the elections process and harm to the voters of North 

Carolina. Accordingly, it is stipulated that the scheduling order entered by the Court in this case 

should provide as follows: 

1. The parties be allowed until September 20, 1999, to complete discovery. 

  

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2 The parties be allowed until July 30, 1999 to join additional parties or to amend 

pleadings. 

3. The plaintiffs be allowed to serve up to 50 interrogatories and the defendants, 

including defendant-intervenors, be allowed to file up to SO interrogatories which shall be 

apportioned between defendants and defendant-intervenorsas they may agree and, absent agreement, 

divided equally. 
18 

4. The plaintiffs be allowed to notice up to }2 depositions of non-expert witnesses, and 

f 

the defendants, including defendant-intervenors, be allowed to notice up to JZ depositions of non- 

expert witnesses which shall be apportioned between defendants and defendant-intervenors as they 

may agree and, absent agreement, divided equally. In noticing depositions, reasonable effort should 

be made to accommodate the schedules of witnesses and counsel. 

5. The parties be required to identify expert witnesses and serve their Rule 26 reports 

on or before August 20, 1999, and such witnesses shall be made available for depositionat times and 

places agreeable to the witnesses and counsel. 

6. The parties be allowed until August 31, 1999 to make a good faith effort to disclose 

the identity of all trial witnesses, together with a brief statement of what a party proposes to establish 

by their testimony. 

7 All motions, except those relating to the admissibility of evidence at trial, are to be 

filed on or before October 1, 1999. 

8. The parties stipulate and agree that the North Carolina General Assembly in enacting 

Chapter 11, 1997 Session Laws, had a strong basis in evidence to believe, based on the legislative 

record before it, that: 

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v 

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a. With respect to the Eastern part of the state from which it constructed the First 

Congressional Dismct, African-Americans arc politically cohesive; and racially polarized voting 6 

occurs such that sufficient numbers of white citizens usually vote as a block to defeat the candidate 

of choice of African-American citizens; 

b. The totality of circumstances showed a history of race discrimination in North 

Carolina, effecting the right of minority citizens to participate in the electoral process, including: 

i. A history of racial appeals during elections continuing into the 1990's; 

1. African-Americans continuing to bear the effects of historiacal racial 

discrimination and tobe at a socio-economicdisadvantage as compared to whites in income, housing, 

education and health, adversely affecting their ability to participate in the political process on an 

equal basis; and 

11. Prior to the creation of the First and Twelfth Congressional Districts in 

the 1992 congressional redistricting plan, no African-American had been elected to Congress this 

century. 

9. The parties stipulate and agree that the North Carolina Congressional Submission 

(hereafter “N.C. Submission”), cornprising five volumes (sections 97C-27A-1 through 97C-28H-1), 

which was submitted to the United States Department of Justice pursuant to § S of the Voting Rights 

Act, is a complete and accurate copy of the legislative history of the enaétment of Chapter 11, the 

1997 congressional redistricting plan. The parties further stipulate and agree that the N.C. 

Submission previously filed with the court under the affidavit of Gary O. Bartlett (16 February 1998) 

constitutes a joint exhibit for trial and shall be designated as Exhibit 1. 
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a a AE er 

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10. The parties will be ready for tnal on or after October 11, 1999, and estimate the trial 

should take approximately 4-5 days. The parties request the Court to schedule a final pre-trial 

conference and trial as soon as the Court’s schedule may permit. 

11. Reasonable accessto the public terminal with the North Carolina General Assembly’s 

redistricting cornputer system will be provided by appointment to counsel for the plaintiffs or their 

experts under the supervisionof the Legislative Automated Systems Division (LASD) during regular 

business hours in the Legislative Office Building, 300 North Salisbury Street, Raleigh, North 

Carolina. Such access will be subject to LASD’s public access procedures, except that the extent 

of usage may be expanded based on availability. 

This the day of 
  

  

Robinson O. Everett 

P.O. Box 586 

Durham, N.C. 27702 

Counsel for Plaintiffs 

  

Adam Stein 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A. 

312 West Franklin Street, Suite 2 

Chapel Hill, N.C. 27514 

Counsel for Defendant-Intervenors 

JUL 12 ’89 12:48 

. 1999, 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

  

Edwin M. Speas, Jr. 

Chicf Deputy Attorney General 

  

Tiare B. Smiley 

Special Deputy Attorney General 

N.C. Department of Justice 
P.O. Box 629 
Raleigh, N.C, 27602 

(919) 716-6900 

Counsel for Defendants 

818 SB? 4853 

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REE DRAFT 

8. For the purpose of this trial it is stipulated that: 

a. 

JUL 12 788 12:48 

Until Melvin Watt and Eva Clayton had been clected to Congress in 1992 no 
African-Americans had been elected to Congress during this century. 

At all times material to this trial at least 95% of the African-Amenicans 
registered to vote in North Carolina are registered as Democrats. 

North Carolina has closed Democratic primaries in which only persons 
registered as Democrats are allowed to vote, 

Africen-Americans who register in North Carolina as Democrats are 
politically cohesive and vote almost uniformly for an African-American 
candidate against a white candidate and in a general election vote for an 
African-American Democratic candidate against a white Republican 
candidate. 

The political cohesiveness of white voters is greatest in the eastern section of 
North Carolina. 

In North Carolina African-Americans for many decades were victims of 
racial discrimination and as a result a substantial majority of African- 
Americans in North Carolina are still at a disadvantage in comparison with 
white in regard to income, housing, education, and health. 

On some occasions prior to 1990 some appeals have been made to North 
Carolina voters on the basis of race. 

[@006 

NO 

NO 

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Proposed stipulation. {. Eblt / = (7% TA 

The parties further stipulate that North Carolina submitted a Congressional 
submission to the Department of Justice pursuant to § S of the Voting Rights 
Act with respect to the 1998 Redistricting Plan and that a copy of this 
submission has been previously filed with this Court, under the affidavit of 
Gary O. Bartlett. This submission constitutes a joint exhibit for trial and 
shall be designated as Exhibit 2. 

Mo 

Jo 

chop 

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The parties further stipulate that North Carolina submitted a Congressional 
Submission to the Department of Justice pursuantto § S of the Voting Rights 
Act with respect to the 1992 Redistricting Plan and that a copy of this 
submission was filed with the Clerk of the United States District Court for 
the Eastern District of North Carolina in Shaw v. Hunt under the affidavit of 
Gary O. Bartlett. This submission constitutes a joint exhibit for trial and 
shall be designated Exhibit 3. 

FADATA\WP\SPLIT\DISTRICT\CROMARTI\ROE.WPD 

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