Harris County District Judge Wood's Supplement to Motion to Compel Discovery from Plaintiffs

    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 

August 8, 1989 

VIA FEDERAL EXPRESS 
  

Clerk, U.S5.: District Court 
200 FF. 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 Harris 
County District Judge Sharolyn Wood's Supplement to Her Motion to 
Compel Discovery from Plaintiffs, along with a form of Order. 

Please return a file stamped copy of these documents in the 
enveloped provided. 

A copy of the Supplemental Motion absent the exhibits, along 
with a copy of the proposed Order, is being mailed first class, 
postage prepaid, to all counsel of record. The exhibits to the 
Supplemental Motion were previously served on all counsel. 

Sincerely yours, 

Guhim Veo, 
Evelyn V. Keyes 

EVK/cdf 

enclosures 

 



    

PorTER & CLEMENTS 

Clerk, VD.S., District Court 

August 8, 1989 
Page -2- 

CC: 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 ‘NHN, St. Marv's, Suite 521 
San Antonio, Texas 78205 

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

Mr. Julius Levonne Chambers 
Ms. Sherrilvn 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 

 



    

PorTER & CLEMENTS 

Clerk, U.8: District Court 

August 8, 1989 
Page -3- 

CC: Mr. Ken Oden 

Travis County Attorney 
P. OC. 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 H. Mow, Jz. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

 



IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC, et al., 

Plaintiffs, 

Vv. NO. MO-88-CA-154 

MATTOX, et -al., 

Defendants. Z
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HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S SUPPLEMENT 
TO HER MOTION TO COMPEL DISCOVERY FROM PLAINTIFFS 
  

Defendant-Intervenor Harris County District Judge 

Sharolyn Wood ("Wood"), having been served with Plaintiffs’ 

Responses to Interrogatories and Requests for Production and 

having received Plaintiffs' Response to her original Motion to 

Compel, files this Supplement to Her Motion to Compel Discovery 

from Plaintiffs pursuant to ¥.A.C.P. 33(a), 34(b) and 37(a) and, 

in support thereof, respectfully shows the Court the following: 

l1. On July 3, 1989, Defendant Wood served a Motion to 

Compel Discovery on the Original Plaintiffs in this case. A copy 

of that Motion is attached hereto as Exhibit "1." In that Motion 

Defendant Wood requested that the Court direct the Plaintiffs to 

answer her First Set of Interrogatories and Requests for Produc- 

tion of Documents and to produce the documents requested therein. 

As Defendant Wood argued in her Motion, those Interrogatories and 

Requests for Production were served on the Plaintiffs on Febru- 

ary 28, 1989, one day after the Court permitted Defendant Wood to  



  

intervene in this case; but, in the following two and one-half 

months the Plaintiffs refused to respond either to the formal 

discovery request itself or to Defendant Wood's informal 

inquiries about discovery. 

2. In response to Defendant Wood's Motion to Compel, the 

Plaintiffs served on Defendant Wood on July 6, 1989 a document 

entitled "Plaintiff LULAC Statewide Response to Defendant Wood's 

First Set of Interrogatories and Request for Production of 

Documents" ("Response"). A copy of that Response is attached 

hereto as Exhibit "2." In connection with that Response, the 

Plaintiffs produced no documents whatsoever; nor did they provide 

any substantive answer to any Interrogatory other than to 

identify for Defendant Wood the same two experts previously 

identified by the Houston Lawyers Association, Plaintiff- 

Intervenors in this case. Indeed, the Plaintiffs absolved most 

Plaintiffs from the responsibility of having to respond to 

discovery requests on the ground that Original Plaintiffs LULAC 

Councils 4434 and 4451, James Fuller and Christina Moreno have 

"no contact in Harris County." Response at 'l. This left only 

Plaintiff LULAC Statewide to respond. The Plaintiffs admitted 

that LULAC Statewide has no officers in Harris County and it 

refuses to identify any members in Harris County. Response to 

Interrogatory No. 3. 

3. Defendant Wood has previously argued that an organiza- 

tion claiming voting rights violations cannot refuse to identify 

any individuals who have suffered voting rights deprivations. 

 



  

See Defendant Harris County District Judge Sharolyn Woods Motion 

to Dismiss the Legislative Black Caucus. Therefore, she will not 

repeat that argument. However, the result of the Plaintiffs’ 

secrecy is that instead of providing any specific fact informa- 

tion in response to Defendant Wood's discovery requests, the 

Plaintiffs hide behind the shield of their claim to be a state- 

wide organization with a secret membership in order to repeat the 

broad, general charges in their First Amended Complaint. Since 

Defendant Wood's Motion to Compel Discovery Against the 

Plaintiff's -- which has yet to be ruled upon -- is based 

entirely upon the argument that the Plaintiffs have failed to 

provide her with any information about their claims or with any 

documents, and since the Plaintiffs have, in their tardy 

responses, utterly failed to provide any substantive answers to 

interrogatories, as well as any documents whatsoever, Defendant 

Wood does not withdraw her motion. Instead, she only supplements 

it with the following specific objections to the Plaintiffs’ 

Response while continuing to rely on the arguments and authori- 

ties set forth in her original Motion to Compel Discovery from 

Plaintiffs. 

4. In response to Requests for Production Nos. 1, 2, 3, 4, 

6,72, 9, 10, 11i,.12, 13, 14, 15, 16, 17,19, 20 and ‘21 the 

Plaintiffs repeatedly refer Defendant Wood to the same three sets 

of documents despite the dramatic diversity of the types of 

documentation requested. (Defendant Wood's First Set of Inter- 

rogatories and Requests for Production of Documents ("Request") 

 



  

is ‘attached "to Exhibit "1" as "Exhibit "a. ") Moreover, those 

documents have not been made available for inspection and copying 

by the Plaintiffs; and, even if they were, they would be totally 

inadequate to respond to any of Defendant Wood's Requests, much 

less virtually all of them. 

5. The first documents mentioned are two tables from the 

1980 Census. As Defendant Wood argued in her Motion to Compel 

Discovery from the Houston Lawyers Association ("Motion to Compel 

Houston Lawyers") still pending before the Court, data from the 

1980 census, even if responsive to a request for production, is 

inadequate to establish any facts relevant to this case since it 

is nine and one-half years out of date. See Motion to Compel 

Houston Lawyers at 15. The same argument applies to the second 

category of documents mentioned by the Plaintiffs: the 1980 

Census Voting Age Population by Census Tract. The thirty 

category, precinct data which the Plaintiffs claim has been 

furnished to Defendant Wood by Sherrilyn Ifill, has never been 

furnished to Defendant Wood by Sherrilyn Ifill (attorney for the 

Houston Lawyers Association), nor by any other Plaintiff or 

counsel for any Plaintiff in this case. Nor, as Defendant Wood 

pointed out in her Motion to Compel Houston Lawyers, has any 

Plaintiff in this case produced any document to her in response 

to any request -- formal or informal -- since she intervened on 

February 27, 1989 and filed her first discovery requests on the 

Plaintiffs and Plaintiff-Intervenors on February 28, 1989. 

 



  

6. In response to Defendant Wood's Request for Production 

No. 5, the Plaintiffs state that two months before trial they 

have not one document to support their broad general claims that 

the system of electing state district judges in Harris County is 

the result of an intent to discriminate; nor do they give even 

one factual instance of discrimination in response to Defendant 

EY Defendant Wood Wood's corresponding Interrogatory No. 

requests that the Court order the Plaintiffs to produce the 

documents that support these claims. 

7. In response to Defendant Wood's Requests for Production 

Nos. 8 and 18, the Plaintiffs claim to have no documents that 

indicate the size of the pool of black and Hispanic lawyers 

eligible to run for election as state district judges in Harris 

County. Yet, as Defendant Wood argued in her Motion to Compel 

Houston Lawyers, proof of the size of the pool of eligible 

candidates for a position is an essential element of a cause of 

action for racial discrimination. See Ward's Cove Packing Co. v. 
  

Atonio," 109 U.S. 2115 (No, 87-1387, June 5, 1989), a copy of 

which is attached to Defendant Wood's Motion to Compel Houston 

Lawyers as Exhibit wy, nlf Thus the Plaintiffs must possess this 

  

1/ The internal references to Interrogatories' in some of 
Defendant Wood's Requests for Production were inadvertently 
misnumbered. Plaintiffs' responses make it clear that they 
correctly understood each request to refer to the 
immediately preceding (rather than following) interrogatory. 

21 Although Ward's Cove is a Title VII case, the principle is 
  

exactly the same in a Voting Rights Act case. 

 



  

information in order to prove their case; and, possessing it, 

they have an obligation to produce it in response to Defendant 

Wood's discovery requests. Defendant Wood therefore requests 

that the Court order them to produce it. 

8. In response to Interrogatory No. 3, the Plaintiffs 

claim that their Harris County membership is not discoverable. 

This response is evasive and improper where the Plaintiffs’ 

standing to raise a Voting Rights Act claim in Harris County 

depends upon the actual existence of individual members of LULAC 

who have voting rights in Harris County. Defendant Wood has 

previously dealt with the claim that membership lists of 

organizations claiming voting rights ‘violations are not 

discoverable. However, she would add that the Plaintiffs’ 

refusal to name any individual LULAC member who resides in Harris 

County is doubly evasive and inadequate in a Voting Rights Act 

case, since the inquiry required by the United States Supreme 

Court to establish a vote dilution claim is, as the Fifth Circuit 

has pointed out, especially fact-intensive. See Thornburg v. 
  

Gingles, 478 U.S. 30, 50-52,.106 S.Ct. 2752, 2766-67 (1986); 

Overton ‘v, City of Austin, 871 7.24 529, 533 {5th Cir. 1959) 
  

(violations of Section 2 of the Voting Rights Act entail a 

"fact-bound, intensely local inquiry"). Therefore Defendant Wood 

requests that the Plaintiffs be compelled to identify actual 

persons in Harris County who can provide factual information 

regarding alleged violations of their voting rights. 

 



9. The Plaintiffs' responses to Interrogatories No. 4, 5 

and 6, requesting specific information regarding discrimination 

against the Plaintiffs in Harris County -- namely that Harris 

County has a history of past discrimination and lingering effects 

of socio-economic stratification and that this discrimination is 

deliberate -- are simply a restatement of their pleadings and are 

therefore nonresponsive. Defendant Wood requests that the Court 

compel the Plaintiffs to describe the local facts upon which they 

base these claims, just as she requests that the Court compel the 

Plaintiffs to identify the individuals who have suffered from 

such alleged discrimination. 

10. In response to Interrogatory No. 7, the Plaintiffs deny 

that they would abolish the system of electing district judges in 

Harris County from county-wide seats to serve specialized 

functions. Yet the destruction of the county-wide election 

system, which the Plaintiffs expressly seek, entails precisely 

such a result. Moreover, the Plaintiffs claim in response to 

Interrogatories No. 7, 8, and 13, that they need not describe how 

they would draw Judicial districts to preserve such specializa- 

tion or how they would draw judicial districts in any event, 

since this matter properly belongs to the remedy phase of this 

case. The Plaintiffs' claim is, however, mistaken. As Defendant 

Wood showed at length in her Motion to Compel Houston Lawyers, a 

copy of which was served on the Plaintiffs, under the Thornburg 
  

criteria, a map of proposed election districts is essential to  



  

prove vote dilution claims since without such a map, Voting Right 

Act Plaintiffs cannot show that they would constitute a majority 

of the voters in any proposed district as Thornburg requires. 
  

Bee 478 U.S. 30, 50-52; 106 8.Ct. 2752, 2766-67; and Defendant 

Wood's Motion to Compel Houston Lawyers at 16. Thus there is 

nothing premature about Defendant Wood's request for a map 

showing where the Plaintiffs would draw each new judicial 

district in Harris County to prevent alleged vote dilution, nor 

is there anything premature about her attempts to discover how 

the Plaintiffs would draw those districts to preserve judicial 

specialization, which they claim would not be abolished, and the 

principle of one-man, one-vote, if, indeed, they would preserve 

that principle. Since the Plaintiffs cannot prove this case 

without the proof that a map of proposed remedial districts 

provides, they must have this information and Defendant Wood is 

entitled to its immediate production so that she can begin to 

  

prepare her defense .~>' 

3 The Plaintiffs refer cryptically in response to 
Interrogatory No. 8 to maps which are available for 
inspection. If this response refers to 1980 Census Tracts 
maps, the answer is evasive and unresponsive. If it refers 
to any other maps, Plaintiffs should be compelled to reveal 
where these maps are available. No maps responsive to 
Interrogatories No. 7 and 8 and their corresponding requests 
for production have ever been made available to Defendant 
Wood. 

 



11. The Plaintiffs' response to Defendant Wood's Interroga- 

tories No. 9 and 10 -- seeking to determine why Harris County and 

certain other selected counties were targeted by this suit while 

other counties were not targeted -- is totally non-responsive. 

The Plaintiffs claim that no client asked them to include other 

counties. The request, however, is not directed to counsel for 

the Plaintiffs but to the Plaintiffs themselves, and it clearly 

requires them to state their factual basis for distinguishing 

between the target counties, in which the election system is 

challenged, and the non-target counties, in which the identical 

election system is not challenged. Since the election system in 

both target and non-target counties is the same, the basis for 

the Plaintiffs' attack on that system must be a fact pattern 

which distinguishes the application of the Texas judicial 

election system in Harris County and the other target counties 

from the application of the same system in surrounding counties; 

and Defendant Wood is entitled to know what that selectively 

discriminatory fact pattern is. This request is especially 

important in that, should the Plaintiffs prevail in this suit, 

the State of Texas will be left with a dual judicial election 

system with county-wide election districts in counties and 

sub-districts drawn along racial lines in others. Thus the 

philosophical and factual rationale for the dual system for 

electing state district judges which the Plaintiffs seek to 

impose is of extreme importance in this case; and Defendant Wood 

requests that the Court require the Plaintiffs to reveal it.  



  

12. Defendant Wocd does not specifically object to the 

Plaintiffs' responses to Interrogatories No. 11 and 12 except to 

the extent that the Plaintiffs claim that they are unprepared to 

respond to her request whether blacks and Hispanics will combine 

their votes in Harris County. Since proof on this issue is 

essential to the Plaintiffs' case, Defendant Wood requests that 

the Court compel the Plaintiffs to provide her with this informa- 

tion (and the documentation that supports their response) so that 

she can begin to prepare her defense. 

13. Finally, the Plaintiffs claim, in response to Inter- 

rogatory No. 14, that this lawsuit does not address venue. 

Defendant Wood objects that this answer is non-responsive in that 

any new judicial election scheme in which judges are elected from 

districts smaller than a county will necessarily have an impact 

on the present venue scheme, which provides for county-wide 

venue. Any alleged remedial plan that the Plaintiffs could 

propose would either provide for the continuation of county-wide 

venue =-- in which case judges would have venue over cases 

involving litigants who had no right to vote for or against those 

judges -- or provide for district-wide venue -- in which case 

litigants would have strong incentive to forum-shop. Defendant 

Wood is entitled to know which eventuality the Plaintiffs 

foresee; and she requests that the Court compel the Plaintiffs to 

reveal this information so that she can prepare her defense. 

14. Defendant Wood has previously set forth numerous 

authorities in support of the arguments made in her Motion to 

wl Oo 

 



  

Compel Houston Lawyers and her original Motion to Compel 

Discovery from the Original Plaintiffs -- both of which are still 

pending before the Court. Therefore she will not repeat those 

arguments here but instead hereby incorporates them by reference. 

WHEREFORE, PREMISES CONSIDERED, Defendant Wood respectfully 

requests that the Court order that by August 18, 1989 the Plain- 

tiffs must answer her Interrogatories and produce the documents 

she has requested, as set forth above and in her original Motion 

to Compel Discovery from Plaintiffs, so that she may adequately 

prepare for the trial of this case; and she requests such other 

and further relief, in law and in equity, to which she may show 

herself justly entitled. 

Respectfully submitted, 

PORTER & CLEMENTS 

7 logos Clo sri fort 

J. Eugene Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

(713) 226-0600 

th arse dt Sieh ff ttl 

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

By: 
  

  

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

«lle 

 



  

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 

CERTIFICATE OF SERVICE 
  

I hereby certify that on the 8th day of August, 1989, a true 
and correct copy of the above and foregoing Harris County 
District Judge Sharolyn Wood's Supplement to her 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. Sherrilvn 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 

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 

  

VL ua 
Evelyn V. Keyes 

W0002/45/cdf  



  

THE UNITED STATES DISTRICT COURT 

THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs, 

JIM MATTOX, Attorney General 

S 

S 

S 

S 

S 
Vv. § NO. MO-88-CA-154 

S 

S 
Of the State of Texas, et al., § 

S 

S Defendants. 

  

Came on for consideration Defendant Harris County District 

Judge Sharolyn Wood's Motion to Compel Discovery from Plaintiffs 

and her Supplement to that Motion, and the Court, having reviewed 

Defendant Wood's Motion and Supplement and the Response to her 

First Set of Interrogatories and Requests for Production, and 

having considered the arguments of counsel, is of the opinion 

that Defendant Wood's Motions should be GRANTED. It is therefore 

ORDERED that Plaintiffs LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS ("LULAC") et. al. reanswer fully each of Defendant 

Wood's First Set of Interrogatories and Requests for Production 

as requested in Defendant Wood's Supplement to her Motion to 

Compel Discovery from Plaintiffs and produce all of the documents 

and things requested therein on or before August 18, 1989. 

SIGNED this day of 1 1989, 
  

  

UNITED STATES DISTRICT JUDGE