Fax From Smiley to Cox and Stein RE: Draft Proposed Discovery Plan

    NC AG SPECIAL LIT 
     

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Fax:9197166763 Jul 8. .'23 = 13:56 

    

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7 TCiNil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, ef al. B RB A [5 7 
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Plain ffs, 

V. 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the State of North 

Carolina, et al., PROPOSED 

DISCOVERY PLAN 
Defendants, 

and 

ALFRED SMALLWOOD, et al., 

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Defendant-Intervenors. 

Pursuantto 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. 

 



  

NC AG SPECIAL. LIT Fax:9197166763 Jul +8 9 13:56 P.02 

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 50 interrogatories which shall be 

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

divided equally. 

4. The plaintiffs be allowed to notice up to 12 depositions of non-expert witnesses, and 

the defendants, including defendant-intervenors, be allowed to notice up to 12 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 deposition at 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, if the issue of a compelling state interest is reached 

as to the First Congressional District, 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 

2 

 



NC AG SPECIAL LIT Fax:9197166763 Jul 8 199 13:57 

before it, that with respect to the Eastern part of the state from which it constructed the First 

Congressional District: 

a. African-Americans are politically cohesive; 

b. Racially polarized voting occurs such that sufficient numbers of white citizens 

usually vote as a block to defeat the candidate of choice of African-American citizens: 

of K U 
¢. The totality of CLE vk a history of race discrimination in the 

oe 

Slogtoral process in North Caroling, the effects of which persist, including: 

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

ii. African-Americans continuing to bear the effects of historical racial 

discrimination and to be at a socio-economic disadvantage 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 

ill. 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”), comprising five volumes (sections 97C-27A-1 through 97C-28H-1), 

which was submitted to the United States Department of Justice pursuant to § 5 of the Voting Rights 

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

1997 congressional redistnicting 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. 

3 »  



  

  

Fax:9197166763 Jul 8 "99. 13:57 P.04 NC AG SPECTAL LIT 

10. The parties will be ready for trial on or after October 1 1, 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 access to the public terminal with the North Carolina General Assembly’s 

redistricting computer 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. 

Thisthe day of , 1999. 
  

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

  
  

  

      

  

Edwin M. Speas, Jr. 
Chief Deputy Attorney General 

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 

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 

 



NC AG SPECIAL LIT Fax:9197166763 July 8.208 "13:59 P.01 

          

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Co./Dept. GofEwpt. L : Co.  § 

Phone # Phone # Phone # 2 9- 20Co- ¢5 00 

Fax # Fax # Fax #             
  

  

“TU Civil Action No. 4-96-CV-104-BO(3) 

CRAFT MARTIN CROMARTIE. et al., 

Plaintiffs, 

Vv. 

JAMES B. HUNT, JR. in his official | 
capacity as Governor of the State of North 

Carolina, et al., PROPOSED 

) 

) 

) 

) 
) 

) 
) 

) 

) 
) DISCOVERY PLAN 

Defendants, ) 

) 
and ) 

) 
) 
) 

) 

ALFRED SMALLWOOD, et al., 

Detendant-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: 

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

 



  

NC AG SPECIAL LTT Fax:9197166763 Jul... 8.°99 + 13:50 P. 02 

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 50 interrogatories which shall be 

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

divided equally. 

4, The plaintiffs be allowed to notice up to 12 depositions of non-expert witnesses, and 

the defendants, including defendant-intervenors, be allowed to notice up to 12 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. 

3. 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 deposition at 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 I, 1999. 

8. The parties stipulate and agree, if the issue of a compelling state interest is reached 

as to the First Congressional District, 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 

2 

 



  

MC AG SPECIAL LIT Fax:9197166763 Jul 8.299 14:00 P.03 

before it. that with respect to the Eastern part of the state from which it constructed the First 

Congressional District: 

a. African-Americans are politically cohesive; 

b. Racially polarized voting occurs such that sufficient numbers of white citizens 

usually vote as a block to defeat the candidate of choice of African-American citizens; 

¢. The totality of circumstances showed a history of race discrimination in the 

electoral process in North Carolina, the effects of which persist, including: 

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

ii. African-Americans continuing to bear the effects of historical racial 

discrimination and to be at a socio-economic disadvantage 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 

iii. 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”), comprising five volumes (sections 97C-27A-1 through 97C-28H-1). 

which was submitted to the United States Department of Justice pursuant to § 5 of the Voting Rights 

Act, is a complete and accurate copy of the legislative history of the enactment 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. 

3 

 



Fax:9197166763 Jul. .& °’ 14:00 P.04 9% NC AG SPECIAL LIT 

  

10. The parties will be ready for trial 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 computer 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. 

Thisthe day of » 1999,   

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

    

Robinson O. Everett 

P.O. Box 586 

Durham, N.C. 27702 

Counsel for Plaintiffs 

Edwin M. Speas, Jr. 

Chief Deputy Attorney General 

      
  

Adam Stein Tiare B. Smiley 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A. 

312 West Franklin Street, Suite 2 

Chapel Hill, N.C. 27514 
Counsel for Defendant-Intervenors 

Special Deputy Attorney General 

N.C. Department of Justice 

P.O. Box 629 
Raleigh, N.C. 27602 

(919) 716-6900 

Counsel for Defendants