Fax from Smiley to Cox and Stein RE: draft proposed discovery plan & draft of plaintiffs’ motion to dissolve stay, schedule discovery & expedite trial

    State of North Carolina 

  

Deparment of Justice 
P.O. Box 628 

MICHAEL FE EASLEY RALEIGH 
ATTORNEY GENERAL 27602-0629 

FAX TRANSMISSION 

Ras 3 

TO: J odd Coy 1 Blom Stein 

FAX NUMBER: NO. OF PAGES: 
  

  

— % 

FROM: [| Are Sn lec / 
/ 

TELEPHONE NUMBER: (919) 716-6900 FAX NUMBER: (919) 716-6763 

SUBJECT: 
  

COMMENTS: 

Outhnchadl to a odor or aA fe 

Bo. 2, dolire, si eh adS arn 

Ott Ad frrnpesnd A io Cotta plan 

Is Te, ne ST dd fe. puspoaikd 

a havt nal: fone bo! RAL pet The line 

of Ais cory YX hood dotes a a (oon premife 

bafta CREE ol NOR a 

THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS LEGALLY PRIVILEGED AND 

CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY 

NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE 

HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPY OF THIS TELECOFPY IS 

STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TELECOPY IN ERROR, PLEASE IMMEDIATELY 

NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS ABOVE 

VIA THE UNITED STATES POSTAL SERVICE. THANK YOU. 

  

  

  

  

    

  
  

  
    

  
  

\WP61\SPLIT\FORM\FAX.SHT 

10°d 2eipY. 66, ¢ W( £92991.616: XES 111 WID34S a Ji 

a 

 



  

NC AG SPECIAL LIT Fax:9197166763 Jul 27-99 14:44 P.O} 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

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

  

  

  

  

  

      
    

  

MARTIN CROMARTIE, ef al. PostitFaxNote 7671 [°° 7.7.59 [fife ¢f 
: Y° Todd Cox TINT 1 Selle 

Plaintiffs, le Oo: / 

as Phone¥ 919 - F/E- 6300 
V. 

Fax # Fax # 

“'YAMES 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., 

M
e
r
’
 

w
r
 

S
a
’
 

a
 

S
e
 

a
 

S
a
 

S
m
 

S
m
?
 
S
t
 

S
e
 

g
l
 

N
u
t
 

un
t 

w
r
 

u
l
’
 

N
t
’
 

SANE 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, 

Couneel 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: 

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

 



  

NC AG SPECIAL LIT Fax:9197166763 Julsav? 299.0. 14:45 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 1, 1999. 

8. The parties stipulate and agree with respect to the eastern area of the state from which 

Congressional District 1 is constructed that, if the issue of a compelling state interest is reached, the 

North Carolina General Assembly had reasonable grounds to believe, based on the legislative record 

2 

 



NC AG SPECIAL LIT Fax:9197166763 Jul: 7 "99.¢ 14:45 P.03 

® * 
RAE 

before it that African-Americans are politically cohesive and that racially nl voting occurs 

  

so that sufficient numbers of white citizens usually vote as a block to defeat the candidate of choice 

of African-Amencan citizens, ln addition, bascd on the legislative eng the totality of 

Lo? 
circumstances in North Carolina established a history ofttace discriminationin ~ electoral process, 

the effects of which persist: a es of racial appeals during elections which have continued into 

AE Alora — An, cond ho hn Ht eck. 
the 1990s; African-Americans continue to be at a socio-economic disadvantage as compared to 

whites in income, housing, education and health, which affects their ability to participate in the 

political process on an equal basis; and prior to the creation of Districts 1 and 12 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 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. : ogk . 19 i 0 XY AN Nev. 

10. The parties will be ready for trial on or after October T1999. 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 supervision of the Legislative Automated Systems Division (L ASD) during regular 

3 

 



  

NC AG SPECIAL LIT Fax:9197166763 Jul 7509 14:46 P. 04 

acy 5 
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, PA. 

312 West Franklin Street, Sutte 2 

Chapel Hill, N.C. 27514 

Counsel for Defendant-Intervenors 

» 1939, 

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

    

Edwin M. Speas, Jr. 
Chief Deputy Attorney General 

      

Tiare B. Smiley 

Special Deputy Attomey General 

N.C. Department of Justice 
P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 
Counsel for Defendants 

FADATA\WP\SPLIT\DISTRICT\CROMARTI\PROPOSED.PLN 

 





EVERETT GRASKINS/DURHAM TEL:319-682-5469 Jul 06'99 21:18 No .0Q10 P.0Q2 

  

UNITED STATES DISTRICT COURT 
FOR THE EASTERN DIVISION OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4:96-CV-104-BQO(3) 

MARTIN CROMARTIE, ) PLAINTIFFS MOTION TO DISSOLVE STAY, 

) SCHEDULE DISCOVERY, 
etal |) AND EXPEDITE TRIAL 

Plaintiffs ) 

) 
v. ) 

) 
JAMES B, HUNT, ) 

et al. ) 
Defendants ) 

The plaintiffs respectfully move this Honorakle Court to 

dissolve the stay of Proceedings heretofore entered in this 

case, to schedule discovery and to expedite trial; and in 

Support of this motion, they respectfully show the Court: 

(1). ‘In pricy i this Court granted summary 

Distrck (H judgment declaring uncinets sutionst + TSATILIICTING Phen Shagted 
un (nih 

in 1997 by the North Carolina General Assembly The defendants 

then appealed from that judgment to the Supreme Court. 

(2) While the appeal was being perfected, the General 

Assembly enacted in May, 1998 a successor redistricting plan, 

which modified the Iwelfrh District as it existed in 

plan but lert the First District EE aT 

this plan provided that it wag to be used in the 1998 and 2000 

  c0'd 8¢:FT 66: 24 VN £99914616: XE 4173 B134S Sd. ON 

 



EVERETT GRASKIHS/DURHAM TEL:919-682-5469 Jul CB’99 21:18 No .Ol0 P.0OS 

  

elections, unless the Supreme Court reversed the judgment of 

this Courl as Lo the 1997 plan, 

(3) The plaintiffs then challenged the 1998 plan as 

unconstitutional. This Court ruled that the plan could be used 0 

for the approaching 1998 primaries and election; that a trial 

should be conducted to determine the constitutionality of the We 

First District; and that plaintiffs could alse offer evidence 

concerning the constitutionality of the Twelfth DigLrict. 

(4) The plaintiffs appealed from this order but did not 

seek a stay of execution from this Court or the Supreme Court, 

However, Lhe parties commenced preparation for the trial 

provided for in this Court’s order &llowing use of the 1998 plan 

for the 1998 election. 

(3)After the Supreme Caurt had noted probable jurisdiction 

in the appeal by tne defendants [rom the summary judgment, the 

parties agreed that discovery and other preparations for trial 

should be stayed until the defendants’ appeal had been RET 

of. This Court entered a stay order to that effect. JO a 
skye 

(6)On May 17, 1999 the Supreme Court reversed this Court's Fh 

summary judgment as to the 1997 plan and held that the evidence eV” 

offered by the State at the hearing in March, 1998 had been 

sufficient to raise a triable issue of material fact. The case 

was remanded to this Court for trial. Hunt v. Cromartie (No. 

08-85), ‘526 UB. 118 S.00, "1545 {1089) 

(7) Subsequently, by order in Cromartie wv. Hunt, (98-450), 
  

119 5.Ct. 1790 (1999), the Supreme Court vacated this Court’s 

$04 8e:pY 66. 2 AN[ £949914616: XE 111 BIJ3d4S 98 ON 

 



EVERETT GRSKINS/DURMAM TEL :919-682-5469 Ji} ORGY 21:18 No.010 P.O4 

  

Judgment as to the 1998 plan, £fzom which the plaintiffs had 

appealed, and the case was remanded for further consideration in 

light of the decigicn in Hunt v, Cromartie. 

(8) The plaintiffs continue to contest the constitutionality 

0f the Twelfth District, as drawn in the 1997 plan, and claim 

that a race-based motive was predominant in drawing this 

district and that this district did not adequately remedy the 

defects in the Twelfth District as that district existed in the 

1992 plan. 

(2) The plaintiffs also continue tao contast the 

constitutionality of the First District as it existed in the 

1997 plan. Because the First District in the 1998 plan was 

identical with that district in the 1997 plan, the issues 

presented for decision are those which weuld have been 

confronted if trial had taken place as to the 19388 plan. The 

plaintiffs claim that the motive of the General Assembly in 

drawing the majority-black First District was predominantly 

~~ race-based, 
  

   
    Tarrowly tailored, and that the First District, as redrawn 

Sx in 1997, did not adequately remedy the defects of the First 

Sr psec, as that district existed in the 1892 plan. 

«0 (10) Counsel for the parties met on July 1, 1999 and agreed 

that, to the extent consistent with adequate development of the 

evidence, stipulations should be entered as to evidentiary 

  

    

  

Vo — nmatrters not in disput 4 Fhe=pliai pt irs Shou Ia™ 

70d GEV] 66: £4 1[ £99914616: XE 111 BI23dS 99 ON 

 



EVERETT GRASKINS/DURHAM TEL :819-682-5469 | Jul. 06°38 21:15 No 010 POS 

  

  

  
    

     
    

    
    
   

  

intazyrogatories during discovery and te defandanta (includ) 

  

   

  

ingervenorfdefendants) hould be allgwed a like [number 

aking depositions, evdry reasonable pffort shoulfl be m3 

ccommodate the schedules of witnessds and counsél; 
r——— 

discovery 
  

    
  

should proceed promptly, and the parties should designate isgues 
) % 

» : 

Pla AP bein 

that are not in dispute. A. receres ™ 

(11) The 1998 plan under which members of Congress were 

elected in November, 1998 has, by the terms of the law which 

enacted that plan, been superseded by the 1897 plan - a plan 

that has never been used in any primary ox election. Therefore, 

to mitigate uncertainty and confusion, a trial should take place 

soon after discovery has been completed. In light ‘of tna 

Supreme Court’s opinion in Hunt vv. Cromgyxtle, Supra, it is 
  

unlikely that any dispogitive motions will be made by any Of ithe 

parties; and it appears afler consultation among counsel that 

arth thc ok gra 
discovery can be completed kv ; : ies Ea fie 65 ob ban U 

    

Fe plaintiffs respectfully move this Honorable Court (449. 

[] 
* 

    
      

The parties be allowed until September 27, 1999 to 

glans, unless the time is subsequently 

extended by the 

   
    

   
   

   

    

complet 

    
    

   

  

) The plaintiffs be allowed lng discovery to file up 

to fifty interrogatories and the del ntg, including 

defendant=intervenors, be allowed to file up 

interrogatories, which shall be apportioned between bo   fondants and defandant«intervenors as they may agree J 
    

(gt L) = 
80 °d Eva 06, 4. JE £9991b616: XE 111 BIS33dS 98 ON 

onload vm Cal 

 



EVERETT GRASKINS/DURHAM TEL :919-682-5469 

  

SHG, Shasent agreement, divided equally. 

n completion ol discovery, the partie € allowed 

until OStkaber 11, 1999 to file ony motions; and any 

responses tc nod s¥¥511 be filed nc later than 

October 18, 1% 

set for Octcbher 25, 

    
    

thereafter 45 the Court’s schedule may perlil. 

Bi 
Respectfully submitted this __ day of July, 1993. 

  

  

Robinson O. Everett 

kverett & Everctt 

Attorneys for Plaintiffs 

Post Qffice Bux 586 

Durhai, North Carolina 27702 
(91.9) 682-5691 

  
  

      

  
        

  

  
    

£949914616: XE 117 H1)34S 9 ON