Defendant Wood's Motion in Limine; Proposed Order

    PorRTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 
ATTORNEYS 

  

A PARTNERSHIP INCLUDING 

PROFESSIONAL CORPORRFIONS TELEPHONE (713) 226-0600 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 
EVELYN V. KEYES 

TELEX 775-348 
(713) 226-0611 

September 15, 1989 

VIA COURIER 
  

Mr. John Neil 
Clerk, U.S. District Court 
200 E. Wall St.,; Suite 316 

Midland, Texas 79702 

Re: No. MO88-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 Defen- 
dant Wood's Motion in Limine, along with a form of Order. 

Please return a file stamped copy of this document in the 
enveloped provided. 

A copy of this filing is being served on counsel of record 
either by Federal 'Fxpress or by first class mail, postage 
prepaid. 

Sincerely yours, 

Coil. (Coy 
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  



    

PorRTER & CLEMENTS 

Clerk, U.S. District Court 
September 15, 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. 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. 

Vv. NO. MO-88-CA-154 

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

D
)
 D
N
 

DEFENDANT WOOD'S MOTION IN LIMINE 
  

TO THE HONORABLE UNITED STATES DISTRICT JUDGE: 

Defendant-Intervenor Harris County District Judge Sharolyn 

Wood ("Judge Wood") files this Motion in Limine pursuant to 

Federal Rules of Civil Procedure. ‘7(b) and. 16(c). Judge Wood 

requests that the Court enter an Order prior to trial concerning 

the matters set forth herein in order to simplify the issues, 

determine the admissibility of testimony and determine the 

admissibility of evidence. In support of her motion, Judge Wood 

would respectfully show the Court the following: 

1. The Court should strike Plaintiffs' expert Dr. Robert 

Brischetto as a witness regarding Harris County and sustain 

objection to the admissibility of any documents Dr. Brischetto 

prepared. Federal Rule of Civil Procedure 26(4) (A) (i) provides 

that a party may through interrogatories require any other party 

to identify each person the other party expects to call as an 

expert witness at trial and to state the subject matter on which 

 



  

the expert is expected to testify and the substance of the facts 

and opinions to which he is expected to testify, along with a 

summary of his grounds for each opinion. Section (b) (4) (A) was 

added to the Federal Rules in 1970 by amendment precisely to 

afford discovery of information obtained by or through experts 

who will be called as witnesses at trial in cases presenting 

intricate and difficult issues as to which expert testimony is 

likely to be determinative. "Notes of Advisory Committee on 

Rules," Fed. R. Civ. P. p.83. A Voting Rights Act case, such as 

the instant case, is a classic example of a case in which expert 

testimony is likely to be determinative. Nevertheless, in 

derogation of the wording and purpose of Rule 26, the Plaintiffs 

denied, in response to Judge Wood's Interrogatory No. 1, served 

on the Plaintiffs by Defendant Wood on February 28, 1989, and 

answered by the Plaintiffs on July 6, 1989, that Dr. Brischetto 

vould testify as ‘to Harris County. In their response the 

Plaintiffs clearly identified Dr. Brischetto's testimony as 

"Testimony concerning minority voting behavior and white voting 

bloc in all areas at issue in this case except Harris and Dallas 
  

Counties." (Emphasis added.) This Interrogatory was answered 
  

less than one week before trial had been scheduled to begin in 

this case. The Plaintiffs never supplemented their Response to 

Interrogatory No. 1. 

2. In response to motions filed by Judge Wood seeking to 

compel discovery from the Plaintiffs and Plaintiff-Intervenors 

 



the Houston Lawyers' Association ("HLA"), the Court issued an 

Order on August 16, 1989 requiring the Plaintiffs and the HLA to 

identify their expert witnesses by September 4, 1989 and, in 

addition, to furnish Judge Wood "with the factual basis and 

opinions of their experts by August 25, 1989." A few days before 

his scheduled deposition of August 24, 1989, the Plaintiffs began 

to mention that Dr. Brischetto might testify as to Harris County. 

In contempt of the Court's Order the Plaintiffs and the HLA did 

not furnish to Defendant Wood either the factual basis or the 

opinions of Dr. Brischetto. On August 24, 1989 counsel for Judge 

Wood attended the deposition of Dr. Brischetto in San Antonio. 

At that time Dr. Brischetto produced one document relating to 

Harris County, an "equity chart" entirely undifferentiated as to 

Hispanics and blacks, despite the repeated stipulation of counsel 

for the Plaintiffs and counsel for the HLA that no evidence would 

be presented at trial on behalf of Hispanics in Harris County. 

When questioned about facts regarding Harris County, Dr. 

Brischetto was unable even to identify the races involving 

minority candidates in Harris County. He admitted that he had 

not begun to do any work regarding Harris County until the day 

before and was unable to testify as to materials relevant to this 

case in Harris County at that time. He further admitted that he 

intended to base his opinions and conclusions on the work done by 

Dr. Richard Engstrom, who had previously been identified by the 

Plaintiffs and the HLA as their sole expert regarding minority  



voting behavior in Harris County. Dr. Brischetto also admitted 

that he had not prepared the equity chart the day before and that 

it could have been prepared from materials supplied to his office 

at any time since the filing of this suit, including, therefore, 

the time at which the Plaintiffs were claiming in their responses 

to Judge Wood's Interrogatories that Dr. Brischetto would not 

testify’ regarding Harris County. During that deposition 

Dr. Brischetto claimed that he would testify regarding a number 

of issues in Harris County, although he had done no work with 

respect to any of them. 

3. Dr. Brischetto was deposed again on September 9, 1989, 

over the objections of counsel for Judge Wood as to his testi- 

mony. At that time he again stated under oath that he would not 

testify regarding Harris County. In response to that statement 

and the statements of counsel for the Plaintiffs, counsel for 

Judge Wood stated for the record that he would not question Dr. 

Brischetto because of his understanding that Dr. Brischetto would 

not testify about Harris County. Nevertheless, despite their 

repeated oaths, counsel for the Plaintiffs have introduced as 

exhibits in this case the documents produced by Dr. Brischetto at 

his second deposition; and they have listed him in the Pre-Trial 

Order as a witness on Gingles factors in Harris County. Since 

their previous statements regarding Dr. Brischetto effectively 

deflected counsel for Judge Wood from interrogating this expert 

witness, or preparing a response to his testimony, in a case  



  

highly dependent on expert testimony, Dr. Brischetto should be 

stricken as a witness and the documents he produced excluded from 

admission into evidence. * 

4. The testimony of Dr. Richard Engstrom, the Plaintiffs 

and the HLA's designated expert regarding minority voting 

behavior in Harris County, should also be excluded since 

Dr. Engstrom admitted in his deposition of August 23, 1989 that 

he had derived his opinions from data which he had not assembled 

himself but which he had obtained from Dr. Richard Murray. Dr. 

Engstrom further testified that he did not know how the data was 

prepared, by whom or whether it was accurate and most tellingly, 

that the data was of a type not commonly relied upon by experts 

in the field of demographics. Under Federal Rule of Evidence 

703, the facts and data upon which an expert basis an opinion 

must be of a type reasonably relied upon by experts in the 

particular field in forming opinions or inferences upon the 

subject. See Fed. R. Evid. 703 and Advisory Committee's Note, 

Moore's Federal Practice 1989 Rules Pamphlet at 284 ("Notice 

should be taken that the rule requires that the facts or data 'be 

of a type reasonably relied upon by experts in the particular 

field'"). Dr. Engstrom's third party data is not before the 

Court, and, since Dr. Engstrom has testified that it is of a type 

  

* Exhibits substantiating the allegations in this Motion are being prepared 
and will be made available to the Court and counsel before trial. 

 



  

not ordinarily relied upon by experts in the particular field of 

demographics, all expert testimony based upon that data, i.e. Dr. 

Engstrom's testimony regarding Harris County, should be excluded. 

5. The Plaintiffs identified James Coronado as an expert 

witness on the Gingles factors in all counties for the first time 

in a memorandum sent to counsel in September, 1989. This tardy 

identification of Mr. Coronado as a witness with respect to 

Harris County not only violated the Court's Order that all expert 

witnesses must be identified by September 4, 1989, and that the 

Defendants must have been furnished with the factual basis and 

opinions of those experts by August 25, but it also followed the 

deposition of Mr. Coronado, which counsel for Defendant Wood had 

been told they need not attend as it would not concern them since 

Mr. Coronado would testify only regarding Travis County. This 

testimony therefore should be excluded and Mr. Coronado stricken 

as a witness with respect to Harris County. 

6. The Court should also refuse to permit the testimony of 

Sheila Jackson Lee, identified by the HLA as a non-party witness 

on August 31, 1989 and the Rev. William Lawson, a party witness 

identified by the HLA on the same date. The depositions of both 

witnesses were promptly noticed by counsel for Judge Wood; and 

both failed to appear for their depositions. Counsel for the HLA 

notified counsel for Judge Wood that the deponents would not 

appear within an hour before the deposition of Rev. Lawson was 

scheduled to take place. In the many months prior to trial the 

 



  

HLA had ample opportunity to identify either or both of these 

witnesses and failed to do so. Only after counsel for Judge Wood 

objected to their inclusion in the witness list in the Pre-Trial 

Order filed with the Court on September 9, 1989 did counsel for 

the HLA, on September 12, 1989 offer to make Ms. Lee available to 

testify on September 15, 1989, three days before trial. She made 

no offer to make Rev. Lawson available. 

7. The Court's Order of August 16, 1989 plainly states in 

paragraph 12 that the Court will not compel a party to agree to 

depositions after September 4. Counsel for Judge Wood under- 

stands this Order to mean that they will not be required to put 

aside trial preparation at the last minute and agree to the 

depositions of witnesses who could have been identified at the 

inception of this case, nor will they be forced to prejudice 

themselves if they refuse to allow a deposition which could have 

been, but was not, timely scheduled and which they would need for 

impeachment purposes were that witness to be allowed to testify. 

By Order of the Court dated June 6, 1989 discovery was required 

to be completed in this case by September 5, 1989. The Houston 

Lawyers' Association has made it impossible for Judge Wood to 

conduct discovery regarding the testimony of these tardily-named 

witnesses in time to prepare for trial. Therefore they should be 

stricken as witnesses and their testimony should be excluded. 

8. While the Plaintiffs and the HLA have both repeatedly 

stipulated that they will not put on a case on behalf of 

 



  

Hispanics in Harris County, both have refused to agree to include 

that stipulation in the Pre-Trial Order as an uncontested issue 

despite numerous efforts by Judge Wood to determine the nature of 

the case the Plaintiffs and the HLA intend to present in Harris 

County. Fed. R. Civ. P. 16 permits the Court to direct attorneys 

for the parties to appear before it at a pretrial conference and, 

at such a conference, to take action with respect to admissions 

of fact which will avoid unnecessary proof. The Court has 

advised counsel that there will be no such conference and that 

the parties should work out disagreements between themselves. 

However, counsel for Judge Wood have attempted many times over 

many weeks to reach agreement with the Plaintiffs and the HLA 

over these matters with no success, although both have repeatedly 

stipulated in public records there would be no case and no 

evidence presented regarding Hispanics in Harris County, thereby 

lulling Judge Wood into undertaking no discovery with respect 

thereto. 

WHEREFORE, for all the foregoing reasons, Judge Wood 

requests that the Court hold a hearing on the matters in this 

motion before the trial of this case and that following that 

hearing it enter an Order as follows: that testimony of Dr. 

Robert Brischetto concerning Harris County is stricken and the 

documents he has produced are inadmissible; Plaintiffs' expert 

witness Dr. Richard Engstrom is stricken as a witness for 

Plaintiffs and the HLA regarding Harris County; Mr. James 

 



  

Coronado is stricken as a witness regarding Harris County; Sheila 

Jackson Lee and Plaintiff-Intervenor the Rev. William Lawson are 

stricken as witnesses for the Plaintiffs and the Houston Lawyers’ 

Association; and the Plaintiffs and the HLA are ordered not to 

present any witnesses or evidence regarding Hispanics in Harris 

County. 

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 

By: if Gecgeree Clones bor Eps, 
JJ Eugene’ Clements / 
700 Louisiana, Suite 3500 Cleyes 
Houston, Texas 77002-2730 

(713) 226-0600 

  

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

 



CERTIFICATE OF SERVICE 
  

I hereby certify that on ee £5 8 aay of September, 1989, a 
true and correct copy of the above and foregoing Defendant Wood's 
Motion in Limine was served upon counsel of record in this case 
by Federal Express or 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.'0O. 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. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

A ley ue 
Evelyn V. Keyes / 
  

WO004/15/cdf  



  

THE UNITED STATES DISTRICT COURT 
THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

  

LEAGUE OF UNITED LATIN AMERICAN § 
CITIZENS (LULAC), et al. § 

§ 
V. § NO. MO-88-CA-154 

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

O RDER 

On the day of September, 1989, Defendant/Intervenor 

Harris County District Judge Wood presented her Motion in Limine. 

The Court has considered the Motion and has heard the arguments 

of counsel and is of the opinion that it should be GRANTED. It 

is therefore ORDERED: 

(1) 

(2) 

{3) 

(4) 

(5) 

that Dr. Robert Brischetto may not testify regarding 
Harris County; 

that Dr. Richard Engstrom may not testify regarding 
Harris County; 

that James Coronado may not testify regarding Harris 
County; 

that Sheila Jackson Lee and the Rev. William Lawson may 
not testify; 

that the Plaintiffs and Plaintiff/Intervenors the 
Houston Lawyers Association shall present no case and 
offer no evidence regarding the following issues: 

a. Whether the present system of electing state 
district judges in Harris County dilutes the 
voting rights of Hispanics. 

b. Whether blacks and Hispanics together consti- 
tute a cohesive political group in Harris 
County. 

 



  

  

c. Whether blacks and Hispanics will combine 
their votes in any particular election in 
Harris County in which a member of one of 
their groups is a candidate against a white. 

d. Whether blacks and Hispanics together consti- 
tute a geographically compact minority in 
Harris County. 

ENTERED this day of September, 1989. 

UNITED STATES DISTRICT JUDGE 

WO004/15/cdf