What’s been vaguely clear became crystal clear at this hearing Friday - time, and how the attorneys use their allotted six hours, will be a major factor in these cases. (Although the cases have been consolidated, all but two are being tried separately. Two are loosely joined together.)
First part of meeting was about scheduling. Judge wanted another hearing Saturday, but depositions are happening Saturday, So the next meting is Sunday at 1pm. Then there were issues of when documents get in with the judge and others articulating how much time they’ll have to read and respond - but you can’t push too much because the trial starts on Friday January 21, 2022. And on top of that, Monday is a holiday.
The Sunday meeting, if I understood this right, is about a motion (which I haven’t gotten access to yet, but the issue was discussed previously) relating to turning over the email communications between the Board’s attorney, Mr. Singer, and Board members. Mr. Singer has argued these emails are protected by attorney-client privilege. At a previous meeting Ms. Wells said that attorney-client privilege for public boards is different and that Alaska’s Public Meetings Act plays a big role here. At the previous meeting Singer said it would take time to redact sensitive information and the attorneys said there wasn’t time for that and they could get the emails and Singer could object to parts they wanted to use. I’m guessing that is where we are now - with a motion to turn over all the emails and with Singer objecting. But following a judge’s order, Singer said it’s all on a thumb drive if it does have to be turned over. From what I could tell, this is what Sunday’s meeting will cover mostly.
They also decided to pair up the Matsu and Valdez cases because they overlap so much and there would be a lot of redundant testimony if they were two separate cases within this consolidated set of five cases. Valdez objects to being put with Mat-Su and Mat-Su’s case opposed having Valdez in their district.
Then there was discussion of the order of witnesses in the various cases and then who would get to cross-examine in what order.
There was also discussion about what kind of transcripts they were getting. The judge distinguished between real time (get them as they're being done) and Daily where you get the transcripts the next day. The plaintiffs and Board are jointly paying for the service and Singer mentioned that Pacific Rim, the transcription company, wants to be paid within two weeks.
These all might seem like highly technical issues, but they could greatly influence how things turn out.
Then there was a critical discussion over a Board proposal by Mr. Singer to have the Board’s executive director do a 20-30 minute introduction to the software the state used so people will understand the terms and the practical capabilities and limits of the software.
Mr. Brena strongly objected and wanted to have his expert witness there and to be able to question Torkelson and his expert witness about the software.
Part 1 is here.
Brena argued that the Board used the software incorrectly and that using Alaska as the example geography for the demonstration would make it a demonstration of the software in Alaska and not a demonstration of the software.
Ms Stone suggested Torkelson make a 30 minute video tape so people could view it and judge its neutrality. Singer said there was no time to do that before Friday.
I’d note that there is, actually, such a video tape by Peter Torkelson that he made and posted on the Board’s website which he used to help the general public get familiar with the software. It is, though, and hour rather than 20-30 minutes.
I’d note that Singer spoke as though this tool, with all the built in assumptions, is a neutral tool. Sort of like, ‘people kill people, not guns.’ All tools affect the environment they are used in. A shovel has a very different impact than a bulldozer.
The judge backed off on this after hearing Brena’s arguments and postponed any decision on this. But the trial begins Friday.
Overall I thought the judge sounded very committed to as good an airing of the arguments as possible so that the Supreme Court has all it needs when it gets the appeal. It didn’t sound like anyone doubted there would be an appeal to the Supreme Court. Judge Matthews was very open to the ideas of the attorneys and to hearing all issues for each topic. Everyone’s demeanor ranged from extremely conciliatory to a bit competitive. The most aggressive exchanges were between Singer and Brenna, but nobody was using elbows.
The dynamic in 2022 is very different from 2012. Then, the main case was a single attorney (mostly) representing some Fairbanks plaintiffs against the Board’s attorney. I would say the Board’s attorney, who had been involved in the whole process, had all the facts and details on the tip of his tongue. Nevertheless, the Fairbanks attorney did get the first maps thrown out and the Board had to begin again.
This time there are five different lawsuits. Each plaintiff is represented by firms with back-up attorneys. (One of the attorneys - Robin Brena - is representing both Valdez and Skagway, and you can see this in the similarity of their initial written challenges.
It’s like the Board’s attorney is playing chess with five different opponents at the same time.
Enough. Below are my somewhat cleaned up, but still very rough notes from Friday’s hearing. I have a lot of respect for court transcribers. My notes missed a lot. You can’t really quote them, but you can get a sense of what was discussed and who participated.
Very rough notes of the meeting. These are not verbatim and as you can tell there are gaps. But until the judge makes real time transcripts publicly available, this is the best you have. At best they give a sense of the meeting, the topics, the participants. And they are a rough guide of where in the meeting to look if you need more.
Judge Thomas Matthews: Motion for Rule of Law and Board’s opposition
Schedule 1pm Saturday, rare situation and oral argument on those motions,
Briefing raises issues on Attorney-client privilege and Open Meetings Act
Not much lead time, OK
Robin Brena [Attorney for Valdez and for Skagway]: We have a deposition tomorrow
Matthews: Sunday? Time is what it ….
Singer: [Redistricting Board's attorney]: Two depositions of Board staff, [Peter] Torkelson [Board Executive Director] tomorrow and Deputy Director. Monday, we could move both to Monday and do oral tomorrow. Might make more sense and give court remainder of weekend.
Brena: I need to get deposition of director tomorrow. There’s a a 50/50 chance Monday deposition won’t go forward.
Stacy Stone [Attorney for Mat-Su]: We’ve been taking lunch breaks, we could do it during lunch tomorrow at noon.
Brena: If you set it for 3pm the deposition should be over.
Matthews:
Singer: Pretrial order says motions about privilege by the tenth, Matsu and
East Anchorage and Valdez timely, the other three not timely.
Matthews: I have your motion. valid point that [those were] after the deadline, but your motion yesterday is a summary judgment and I could say that was late too. Deny your motion. I want full presentation and court needs to set a record on that.
Singer: Order should be on separate day from oral argument, deposition a different day.
Mike Schecter speaking? [Calista attorney]: Basically me too with others and don’t need extra oral argument time
Matthews: Sunday afternoon
Wells: [Attorney for Anchorage plaintiffs over Senate pairings] Sat or Sunday fine
Amdur-Clark - [Doyon attorney] not participating so either
Matthews: Going to be a busy weekend, Respect, if I set for Sunday pm, if others have Sunday commitment? Madame clerk?
1, 2, 3 o’clock?
DECISION: 1 o’clock Sunday it is
One other issue: Ordered yesterday and Mr. Singer responded in hours, in camera review. I’m working this weekend as well, so if I make an order, please have them ready this weekend. [If I understand this right, the Board has been asked to turn over emails between attorney and Board. Board has protested and the judge will make the decision soon if they have to be turned over.]
Singer: We have it on a thumb drive and it’s ready. Significant issue and implications for future boards and their counsel. Will want to seek emergency review from the SC. I respect the court, complicated issues, and time, but oldest ??? In the law (atty-client privilege)
Brena: I hope we don’t delay any process, not sure SC could rule before trial starts. Hope court thinking as simultaneous actions. They need to be looked at - 2400 emails asserted under privilege, many of which the attorney was copied on.
Matthews:
????:
Mathews: Would like reply briefs today, 4pm. Want to be sure Singer has adequate time to review multiple replies, won’t hold strictly to 4pm since electronic.
Production of emails, about order yesterday. Only to be prepared to address the issue, one way or the other. If ready on a thumb drive, at least have that ready. Won’t make decision before oral arguments on privilege Sunday. Recognize your right to appeal and will address issues on Sunday.
Msic. Issues. Mr. Singer, courts power to compel.
Filing deadline questions for objections, plaintiffs objections due, given court holiday on Monday. Want to be fair to all and even handed. Gave 3 days to keep things moving. If I don’t get them until Tuesday, not much time
Brena: Was going to ask an additional day for reports to be filed - instead of today, tomorrow. We’re doing the best we can, have outside experts, asked Supreme Court for 15 days and got some, Last night asked for maps, which have been in public record, but not available. And older maps 1992 we can’t get. Asking for 4pm reply, expert reports, no one harmed by one day extension. Under circumstances that’s fair. Don’t mind the objections on the holiday, but give us one more day for experts report.
Wells: I don’t anticipate we’ll have objections. Going first at trial, gives a little breathing room
Matthews: Practical issues. Singer’s concerns - if you aren’t going to file objections until after the holiday [MLK Day], when would you file.
Brena: ???? I’d give him an extra day to
Singer: 2 different sets of objections 1) board’s profiled testimony
Brena: Yes, I linked two things
Matthews: Ms. Wells says no objections from her. This is the last week, if fell on Saturday, gives you to Tuesday. Singer said, then I have until Thursday. Timing seems fair, other than we start trial on Friday.
Brena: Fine either way
Matthews: Three days would fall tomorrow, give Mr. Singer til middle of week for reply.
Singer: Concerns, five, maybe only four, sets of objections times six witnesses to respond to. We produced 150 K docs, made witnesses available for depositions, five to one, I ask for extra day. If they submit tomorrow, then midweek. Spill into trial, but opening case [Anchorage case] not affected.
Brena: nature of our objection ???? However, we’re flexible
Matthews: Objections to Board profiled testimony, due tomorrow, Board has four days to reply. Expert Testimony that was due today is now due tomorrow, and Board has four days.
In your brief yesterday, you asked for Valdez and Matsu to go back to back. Amdur-Clark said
Amdur-Clark - go after the court
Brena - raises several questions. Talking about A or B, separate processes. There are interrelated issues, but are separate cases. I mentioned the two that made sense were Valdez and Mat-Su as plaintiffs. Could go from five to four presentations. Mat-su is open to the idea. We want to be sure that Matsu first Valdez second, Intervenor third, and Board last.
Do we have opportunity ??? Cross exam. No opportunity to close the case. Ask for opportunity to call one of the witnesses to close the case. Order: profile testimony of Wasilla, the cross exam by???? Can’t keep up…. We aren’t perfectly aligned with Wasilla.
We can go along with merging. Logical if done correct. Wasilla, Valdez, Intervenor, Board, then if time, after Board witness to call our witness to respond.
Stone: Ask allocated entire two days because we have our own issues and we’d negotiate between us how to do it, so we only have to call witnesses once. Mr. singer says consensus among all parties, but not really.
Brena: Couple more things to add: How trial works: Observation; Intervenors have 3 witnesses, so have nine witnesses, Valdez 3, Matsu 2. Issue linked. We selected 3 for Valdez day before affidavit due ??? Wouldn’t count toward our witnesses. We were preserving slots for position, another issue is how deposition play into this> Mr. Singer thought I was going to skip cross. But we want to put in the depositions, but do intend to cross witnesses. Gamesmanship with cross, if someone decides to pass on a cross. ?????
If put - ok Matsu an Valdez together, [can’t keep up] about order of witnesses and trial.
Mr. Singer: Several items in play: Possible miscommunication or not touching on real issues. Mr. Brena said surprised didn’t cross. They were part of admission and fair game at trial, but not fair game, if someone submit Board deposition, but I was not given opportunity to redirect. I haven’t had that opportunity. Discovery depositions - 8 hours. No second day for cross, because another witness the next day. We’d have a meet and confer, but intent of Board testimony was to perpetuate testimony if not available. Haven’t had oppotuniay. If they do that???, then I have opportunity to redirect issues from deposition. Preventing them from explaining.
No preference if Matsu or Valdez go first. Board has one explanation for why the distric tlooks that way. Shouldn’t have to testify twice. My experience that intervenor usually follows the defense, but have no profaner.
Matthews: not cutting anyone off - all important
Wells: We took deposition of Ruedrich, deposition instead of direct, hostile, I did think we were taking our direct testimony and then other parties would cross, but …. Ok submitting it as our testimony and our cross of Ruedrich. A little different.
I did hear Matsu borough objected to opening statement but do want closing statement.
Amdur-Clark: As Singer appreciates - our preference about coming after Board. I will have questions and issues Singer doesn’t have and issues I wouldn’t raise, but Singer would. Keep it a clear record and not redundant, makes sense for us to go after the Board.
Matthews: Unclear why it makes a difference when you have your witnesses. Seems that Board has biggest lift
Amdur-Clark - not that strong preference of witnesses, but really order of when crossing witnesses. If Valdez makes witness available. Likely many questions would be the same as he would ask. More appropriate for Singer to ask, and I would just be filling in the holes.
Matthews: order cross exam witnesses of Valdez and Matsu, not your witnesses
Stone: I do think Mr. Singer has the opportunity to redirect at deposition and if he needs more, then he should file reasons.
Wells: One significant point: We have two Board members who did not present any testimony about senate pairings. Can’t be in scope of direct, because there was not direct.
Singer: Civil rules allows depositions for the purposes, but not-noticing, when each deposition went over 8 hours when court made it clear that cross at trial. All went over 8 hours and we would have been there til 10 or 11 at night if I did it at deposition. Ultimate question is whether the Board acted rationally. Plaintiffs at last minute want to use deposition and ??? Ask opportunity to redirect out of our time.
Brena: What we agreed on: order of witness and order of cross muddled until Mr. Clark’s comments. Don’t object. ??????? [Sorry can’t keep up] Let Board cross witnesses first. For Valdez witnesses, Matsu, Board, Intervenors???? [But not sure and he offered more of these timelines.]
Matthews: Let’s pause and see if agreement
Mr.Amdur-Clark - for Board witnesses, Plaintiffs first and we after.
Brena: don’t want
Amdur-Clark -retract that, confusion in mind.
Matthews: Sense that Board’s testimony and way crossed is going to overlap, so having them put together and have int
Matsu-Valdez-Intervenor- Board (presentation of Witnesses)
Cross different Brena correct
Brena - other parties may want to ask a question, so I would ask if anyone is going to do that, that would be the first people crossing
Matthews: no issue with that. Each party gets 6.5 hours for each case. If Brena wanted to cross a Valdez witness instead of Matsu, but you only get the six hours
Brena: comments on depositions too. No gamesmanship here. Valdez gave up 3 witnesses so have opportunity to use depositions in fact. You said it didn’t count against the trial witnesses, but didn’t have time, so created open spots to get these depositions before your honor. Since first order that depositions could take place of witness. Just asking that depositions that were taken, Singer saying doing discovery depositions, I didn’t think so, I was doing them so they would take time from trial. Asked several times - getting sure that depositions are part of the record and go to the SC. I’m going to use things from depositions in trial. I should have to use them to validate the position I took, to preserve. Depositions should be part of the record. Singer raises point. We didn’t have eight hours on the clock and he did ask redirect in his depositions.. Taken, videotaped, transcribed, lot of money, and want to sue them in court.
Matthews: maybe not be hearing each other. Brena you want to lodge testimony with court as any witness Rule 32
Brena: And doesn’t take from trial time
Matthews: Fine, but doesn’t take from his time and ability to cross
Singer: Then I get take my time, not just scope of cross in court, but if ambiguity in deposition, I can ask witness to explain any ambiguity in the deposition. Depositions very lengthy, I don’t need to question my witnesses. I know what they are going to say at trial.
Brena: Can he redirect. Problem. I may ask six questions and not raise a question. He can redirect on topics I didn’t know he was going to raise. They not only get to close, but on testimony not contested in live trial. So, if he raise new issues I didn’t cross on, then I can redirect after. Witness may say thing I never heard. Not fair to give him that without giving me opportunity to call in my witnesses to rebut
Matthews: We haven’t spoken to rebuttal. You have six hours and in ordinary course you could do that. Only piece we eliminated is that direct is prefiled. You get to cross and redirect. ??? We do that all the time. Issue isn’t that we throw out the window, it’s just time. How you use the six hours. If you need a rebuttal witness and only have 15 minutes left, need to do it quick. You have burden to go forward and have opportunity for limited rebuttal
Brena Singer ok.
Singer: If I do my redirect about things Brena raised and then go to p.42 on deposition, if Brena wants to recross, rather than a rebuttal witness …
Brena - argument for recross usually depends on circumstanes, but right to rebut everyone has
Matthews: True and doesn’t prevent Singer from redirect/rebuttal???? Board members will be ??? of lawyers. I can’t think of any trial without oopses. I know you are on a really tight schedule and I’m trying to give you every opportunity. Our issues is time.
Singer: how present deposition
Mattjhews: Haven’t fully thought this through. 1. You simply file the transcript and you have it all.
Wells: Because we go first, want to be clear about deposition who are silent in their affidavits from Bahnke and Borromeo, we didn’t anticipate being closed from presenting testimony. We have no opportunity to cross because
Brena: A judge trial case and no reason to not just let the deposition go in as part of the record. Underlying rules are to protect juries, but you can do this. Just lodge the depositions people can use them however they want.
Singer: We don’t need line and page number, but having counsel simply id, this is the section that relates to City of Skagway’s case, then we should have opportunity - otherwise free-for-all.
Matthews: Assuming, maybe incorrectly, for everyone except Brena who has two different cleints, when Ms. Stone is going to be asking about Matsu.
Singer: Brena asked about Matsu and about Senate pairings.
Brena: There aren’t any surprises on issues here. Anyone who wants to read through the depositions. We are all capable of going through deposition and say what relates to which case. These are capable sophisticated counsel here.
Miss Stone: Why opening on the record is important.
Brena: Do our best, but
Stone: That when do trial brief identify what we are going to use.
Matthews [I think this was Singer]: What I’m going to get with 8 hour deposition is that people will designate 7.5 hours and it puts more work on you. Whether in trial brief at front end or ??? At the tail end. Give me the whole thing. Which raises another question I wanted to ask: You all in earlier discussion with judge Morse, talked about real time transcription with Pacific Rim lined up. Court ordered each party responsible for equal percentage of bill. They are concerned about payment within two weeks.
Matthews: Let’s be clear here: There’s a difference between real time transcription - transcribing as in progress so can be read on the spot. Daily is overnight and ready the next time.
Singer: Real time
Brena: Yes, we anticipate real time. Lots of moving parts in this trial. Concerned about two weeks payment cycle Representing Municipality and Borough and they have their own procedures, typically 30 day cycle - I’ll talk with Matt.
Matthews: Worked with many reporters, that have had trouble with attorneys payment. Particularly with real time transcription, they should be paid timely.
Brena: If you want to ask for 30 days I’m ok
Matthews: or deposit
Amdur-Clark: Stone raised issue. There have been objections filed to pretrial testimony which court hasn’t ruled on. Since they are before the court should we object now or wait until court?
Matthews: We’ll address objections as we go. Cite in trial briefs
???? Back to deposition, Ms. Stone, Ms Wells, about Randy Ruedrich. Had discussion on what to do as a non-party witness. Ruedrich is a bit of ????
Wells: We took his testimony to authenticate some documents. We’re fine with that. Don’t have a preference but wanted ??? We could submit designations and Board could do the same.
Matthews: Anyone planning live testimony from Mr. Riuedrich?
Singer: Put whole transcript in. If plaintiffs don’t …. We don’t want to go thru it either. If something inadmissible, your honor will exclude it.
Wells: OK your honor.
Matthews: Oral openings and closing and appeared from briefs you’re all in agreement. Today sounds like agreement on oral closings, but not openings.
Closings makes sense to me once submitted findings of fact and conclusions of law
Oral openings, thought we resolved that you would include that in trail briefs. No one jumping up and down. Matter of time. Oral closing.
Singer: Timing, schedule closing argument right after filing findings and conclusions of law
???? Figuring out calendar for this - give me 24 hours or longer to review before getting oral arguments.
Brena: I’m fine - I asked for opening - I have no problem having opening briefs address the issue.
[Move on to talk about a presentation on the software and how it works]
Matthews: Mr. Singer, you raised about presentation about the [redistricting software]
Singer: In standard trial would be first witness - software and how it works - non-controversial. I’m a first time redistricting lawyer and had my own confusion about how you build maps. More like legos than drawing lines. Propose to do that without questioning about any areas of the state or about ???between getting data and final proclamation in November. Ideally bring in 64 inch high res monitor and Mr. Torkelson would do a back and forth, 20-30minutes. Willing to cede time to cross examine. The Autobound and Districtor software.
Very first thing we do at trial or first thing after Anchorage case.
If in person not possible, could be done through share screen. Just not get the impact on a smaller screen.
Brena: Think that Ms. Brooks first
Stone: Involves an area of expertise, may need an expert to ?? The process the Board used.
Brena: We don’t think the Board did it right, so having an explanation by a non-expert on how to do it right starts things off wrong. We want equal time to have our explanation of how it should work. We believe they did it wrong. Having their director say how this works because they didn’t do it right. If you want a presentation, allow all the experts make one. All ??oate equal time for experts to do it properly. They should put their ?? how they want, but this is not a neutral point. Best addressed in context of actual case.
Amdur-Clark - we support his idea. There is plenty of time using trial to put on experts to say they did it wrong. This is just Mr Singer saying “This is how we did it.” We support having the court see clicking the buttons and making maps.
Brena: We don’t oppose it, but should be part of the case.
Matthews: My question was “how does this stuff work” Mr. Brena are you saying they didn’t run the software correctly?
Brena: I’m deposing the witness tomorrow. We don’t think they understood the software correctly, not consistent with how to use the software, because they did some things wrong. We don’t agree Peter Torkelson is an expert. Should not get some special status before the court. Not a fair status to give them. Let that be their first witness.
Singer: I proposed we do it out of our time, and plaintiffs could question. Mr. Torkelson is a computer programer and probably there is no one more expert in the state. Going to be helpful to the court. Not asking for special status. If this an auto accident caee near courthouse, could ask court to walk to intersection.
Time out of us, allowing time for cross-exam. If court thinks it useful..
Brena: Compromise. Singer proposing 30 minutes out of his time and me 30 minutes out of time. My expert out of town, so ask this be zoom and I can ask Torkelson or ask my own expert. If Singer gives us his time, not just cross, b
Singer: Not proposing opportunity to get to any decisions in the case or evidence about the case. Just showing the court about the tool the board used.. Then Brena wants to say we did it wrong. If their witnesses wants to say, the software has these four functions the board didn’t use. We aren’t going to get into what the Board did. Just the census blocks and shape files and take a non-controversial area of the state and then look at the public software and see how it works - tha t?? of Valdez -that’s all I want. Counsels misunderstanding of how software used, we want to see click by click. Mr. Brace, will come in with his ideas. But court should have some understanding. If this about a red car, court should see red car.
Stone: What if Board submits a video of presentation before and we can look.
Brena: Singer’s comments raise more issue. “Non-Controversial” area of the state. This is not about the software, but about Alaska and Alaska maps. If any demonstration of how we ??use the software correctly and we disagree on this. Then I want the opportunity to show how do it correctly. Not sure we should use Alaskans as the example. Mr. Singer hasn’t seen our deposition. He said he’s [Peter I think] familiar - but uses it every ten years. If wants to make presentation about software, then why use Alaska? And then doesn’t want our expert. I shouldn’t have to cross him in front of the court.
Ms. Stone’s suggestion is good, but I don’t like this whole thing. If going to aocmodate out of court’s curiosity.
Singer: No one disputes Northwest districts. We could draw part of state not identified as problem in the state and could draw several maps to show what happens when you click the button. Not going to have time to do video deposition and send in advance [lists things to do all week]
Brena: They had opportunity to have Torkelson make this video. Traditional to start with Arctic Slope where they pack a disproportionate number of Native Alaskans - goes right to the heart of the issues. More I hear, the more it has to do with substantive issues. If permit this, then we want 30 minutes too.
Matthews: Perhaps I opened a can of worms . I see distinction between how does the software work and how did the Board use the software. You’ve raised questions about my assumptions Question of what order I take this evidence and the order. It makes it difficult to do demonstration of software by affidavit. I’ll wait until what you give based on expert deposition. If software is critical to case, then having one understanding of how it works at the beginning would be helpful. But you raise issues. Take it one step at a time. Not going to schedule it now. I’ll hear evidence as it comes in.
Couple of hours now -
other issues we haven’t touched on?
Brena: Good for today
Wells: No other issues
Stone: She left but no other issues
Amdur-clark: no
Singer: See you Sunday.
Thank you for all your work on this.
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