[UPDATE Monday January 17, 2022: It turns out that the Sunday hearing was recorded and is available at Judge Matthews page - at least for the time being. So here it is. You can see how much I fumbled in my notes.] [UPDATE Wednesday January 19, 2022 - Seems they took the video down.]
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There was a very lively discussion at the limits to attorney-client privilege focused on two points in this case:
- whether the Board has to turn over all the emails between the Board's attorney and Board members
- whether the Board members can involve attorney-client privilege to avoid answering questions during the trial
Essentially, several of the plaintiffs argued that attorney-client privilege is limited when there is a public board doing public business. The Board's attorney argued it is a pre-Constitutional privilege that is sacrosanct and any dilution would harm all future redistricting boards. Citing a case where the Supreme Court said privilege extends beyond the death of the client.
I'm getting ready to go south again tomorrow to spend more time with family in the Seattle area, so I don't have much time. This meeting lasted from 1pm to 4pm. I don't know how this trial is going to get done on time. There really are lots of things that have to be discussed and so little time to do it.
For now, I offer my rough notes [normal disclaimers - not verbatim, not complete, but enough to give you a sense of what was covered, but really not anything you could attribute to any of the speakers with any confidence.] I may be able to clean this up more on the plane or even start writing about attorney-client issues the discussion raised for me.
MY ROUGH NOTES
Judge Thomas Matthews: Motion for Rule of Law and Board’s opposition Jan 16, 2022 1 pm
Starting - 1:06 Opened hearing - I don’t see any representative of he Intervenor. Amdur-Clark not participating today.
Thanks you for intervening Sunday afternoon.
Addressing motion for Rule of Law filed by East Anchorage and Open Meeting Act played large role in Board’s response.
Ms.Wells, I look to you first.
Singer: 1) Time constraints on parties 3) We have expert discovery issues that need to be nailed down after or before.
Mathews: I’m here so let's get things covered.
No time line - roughly hour ideal, but I won’t cut you off.
Wells: Try to brief. Tried in the motion.
Matthews: I have 2 questions. 1) Any question whether public meetings apples to board - does board have attorney-client privilege
Wells - It applies
Wells: Comments about balance tween Atty-client privilege allow them to deliberate. We spent time in briefing on Griswold case - deals with quasi- judicial proceedings. When Homer Board citing in judgment - “person seeking relief” similar to court case. We provided guidance to Homer, their findings and final written decision. Interest and scope very different from here. Not a legislative act. Here duties, holding meetings engaging with public. Still Art 6 Sec 10 - still have due process clause and …. And that’s putting open meeting aside, which is a big aside. Scope of motion, not saying you can’t give advice to board, only saying you can’t say to us - we give you one paragraph “We couldn’t do analysis…” OK, when we get to trial, Singer will present and expert and we can seek answers. But no expert. OK, we’ll talk to Board members, all based on their rational. Get to Board members and they claim patty-client privilege. We have no way to determine how these very significant issues impacted their decisions at all. Need to be able to ask basic questions of law to base their decisions. Did I answer your question.
Matthews: you did. And the production of emails - more other counsels - all the emails, what is being requested introduction of emails.
Wells: I’ll answer in part and let Mss Stone answer. 2 aspects - and 2 dealing with ther record. Agree with Mat-Su attorneys - tried to be as reasonable as possible and scope as narrow as possible. Extent to it being separate issue? Sort of married.
Go to Griswold, not just permission granted by court, but almost an obligation in atty-client dispute. This is what Mat-Su B has asked for is reasonable - asking for specific set of documents.
Stone: We thru diligent process. Tried to be reasonable as possible - dynamic spreadsheet to put reason for withholding. I gave a referral. Several refs to APOC and
Maybe taking to heart your note because we got material this morning. Now we have to compare two spread sheets.
Public testimony withheld as privilege. Bethany’s personal email to her redistricting email withheld. We recognize board has benefit of legal counsels. Hundreds of cells not identified. We’re supposed to take them at their word without knowing what the document is. We joined in the motion because of the scope - issue of consultants and open meeting act.
Transcript - referencing statutes of Open Meetings Act. Come out and lengthy discussion of what they discussed in ES which suggests they covered unexampled discussion.
Matthews: I did a ??? Sort of email. Something in excess of 50% are after Nov. 10. Why is anything after the proclamation relevant.
Stone: We used date that litigation filed. I will not from Nov 9 Fall 1142-1258 Still asking for 1142 emails, but I can’t compare the two spread sheets. Hundred of items no date
Wells: Add to that response to pre-Nov 10 emails. For East Anchorage - looking at process and rationale. Whether or not motivated by partisan, whether evidence of ??? Reflections made after Nov 10 could reflect on rationale. When we give open meeting act training, whenever you make determinations, those communications become public records and must be stored. Important for retention schedule requirement. Board subject to those rules. Not treated different from other Boards. Not saying all relevant to disclosure, but don’t want to cut them off yet.
No other significant point, but Open Meeting Act is just one part of whole suite of rules on privilege and public records, due process, due process protect. Need to I feel their briefing misrepresents the fact and the law. More intentional than we anticipated. Cites Hickel - says it may have applied then, but not now. Board referred to Open Meetings Act throughout the process and now say it doesn’t apply.
Matthews: Saw in your reply, dovetails into question I have - way to separate open meeting argument, not just process but also substance issues. What do you contemplate in further briefs.
Wells: Appropriate to deal with it in closing argument and rule of law and it allows the Board wants to separate out the Open Meeting Act - just one of due process claims violations. Allows parties to present in way that makes sense. Not all parties do have the Open Meetings Act argument. Others do. That would protect everyone’s abilities to prevent their arguments in way streamlined and
Matthews: Mis Stone, other comments?
Stone: No
Brenna: Thank you. A few comments. I’d like to focus on what was intended when the Board created prior to 1998 - it was political process. 1998 Legislature took it out of Governor’s hand. Not designed to be adversary system. One of cooperation. They anticipated public engagement in the process. They’re drawing of political boundaries - to avoid gerrymandering and things happen in closed political system. I share Mr. Singer’s fear for the institution. Not because institution too open, but too closed.
If two private companies engaged in fight over issue and protecting client privilege
Not that context. This is public process not intended to be political. Shielding from the public. Not how the drafters of the redistricting board intended. Intended that deliberate process should be public. Atty-client privilege minimal. During these closed - the less transparent the process .
I agree fundamental threat to this institution, because institution taken behind closed doors for abuse — Public doesn’t know what constitution standards and advice board received how those constitutional standards should be applied. Driven by some interpretation of the law. As member of the public, we don’t even know whether the law the board was told to follow is legitimate, because behind closed doors. Board did not deliberate of Socio Economic factors joining Valdez and Mat-Su. Every Alaskan has a right to know the general legal advice directing this hold process, so we know if it was correct and whether it was followed by the board. The applicants of the standards seems ad hoc, they seemed to pick and choose and apply it when it was convenient in different ways in different places. They come up with legal principles that guide their decisions differently in different places. I can’t imagine any reason why it should be confidential. Done behind close doors.
Matthews: For the record - disagreement that the Board is entitled to get legal advice in
Brena: I do not - but it has to be specific and according to the 8 Factos I put in my brief. Not applied here.
Purpose of privilege, to ??? Of professional legal services. I have to communicate with you in a certain way in pursuit of legal services. Secretness is not in the protected class. When you go through the emails, just go thru them, apply the factors and decide if applies
Matthews: If email from Singer or firm about processes for redistricting
Brena: No, not related to litigation. I think Singer acknowledged in public all legal advice is not subject to privilege.
VRA districts historically most protected. Hickel process very specific and the order it must occur. If they brought in a VOA expert and took his counsel in ES. Should fundamental part of Hickel process be able to aired in ES session only. I believe that analysis has to be in public or it has no meaning in the process. More important to this case. This Board went out of its way to impose ANCSA boundaries wherever it could. You’ve heard packing or cracking. Packing is where you put minority members all in one districts. When get to 80% litigation begins. Putting them all in one district dilutes their vote. District 38 - 84% 39 83% native. Packed along the ANCSA boundaries. Their expert known to go around the country and is known for unpacking districts. He gave them advice, should his advice be considered public so the Board can see how they made the decisions, which surely must have come up in that conversation.
To make matters worse, opposing counsel comes out and summarizes the advice given in ES. You can’t play don’t look behind the curtain when you summarize what happened behind the curtain, Then I have a right to see what happened behind closed doors to see if your summary is accurate. He didn’t let expert speak, just gave us a page of summary. That’s breaking privilege even if it was properly asserted which I don’t believe it was.
When see situation decisions made, but process doesn’t include deliberating the consensus, have to conclude the discussion out of the public process. Fairbanks,Doyon district becomes Doyon Ahtna district. You can’t see how they made those decisions. Making Doyon whole and Ahtna whole. Has …. Going through to Cantwell. You can’t track the process. Hours of confidential sessions and they say formed a consensus. I challenge the court finding any discussion joining Valdez and Matsu. Sort of, we took care of anything else, this is left over, do it. We should have chance to see the VRA analysis not hidden from public.
Now, to just basic litigation rights. They have advanced opinion of the Board - these two are SE Integrated - making opinion conclusions about compactness etc. In litigation you ought to explore the basis. Doesn’t lend itself to expert analysis. We want to understand how his opinion entered into the opinion testimony coming into this court. If he’s going to advance Board members and their opinion testimony. He can’t help shape their opinions. But time after time Board relied on some pronouncement that Valdez and Matsu linked in the past disregarding that Valdez and Fairbanks were linked.
Rule 26 goes to that. Advice of expert witnesses. Option testimony if to be considered by this court. Many are legal opinions advanced that we can’t explore. He’s hiding between a-c privilege to hide his advice that formed the opinions.
I was concerned if Board would be cooperative on emails. I’d asked judge to have any assertion of a-c privilege given to the court, because we didn’t have time to get this info. I’ve run out of time. Even transcripts of what the Board said are late. We need to go through the emails.
They filed at 8:20am today, they are withdrawing claims of privilege of some emails today. Though haven’t produced any et so can’t determine. One category - deliberations when counsel not even present. It’s January 16. A little late. Filing today demonstrates abuse of process. What they should have done before. I don’t want to get back to the court on this. Just roll up your sleeves and read. If you think privilege applies and call some balls and strikes. I don’t accept that now they’ve seen the light 2 hours before oral argument and haven’t actually seen anything. Already prejudiced enough by delay and over application of a-c privilege.
Ashton-Mason firm any arguments?
Eva Gardner - no.
Singer: One hour hearing has already gone an hour. Do you want a five minute break?
Matches: We’re good on our end, but will give you five.
Singer: Brena good closing argument. CA privilege predates our constitution. Foster committed suicide and SC said patty-client privilege after death promotes candor between client and counsel. Clients have right to believe what they say is confidential. Here on Sunday four days - contemplating a rule of law that doesn’t exist. No nexus between what you heard and the documents they are demanding.
Matthews: Stop, Where’s the line. No one says ac doesn’t exist. Where’s the line
Singer: There is no line. Applies to communication that is confidential and made for legal services. Ms. Stone - pre-litigation, you can go to lawyer and get confidential advice to
Work product ??? To apply. Singer - laughing - some limit to what can be discussion in ES. But doesn’t apply to communications. Nothing in the law says attorney cannot advise client …
Argues Cool Homes case extended not just ES and applied it to more. …….. Court acknowledges right to ac privilege. This notion - if going to assert to single document, simply throwing mud at the Board. Alaska SC has dealt with this Central Construction v Home Indemnity. First plaintiff has to make a showing that in camera review will reveal one of the exceptions. Showing has to be that went into ES to help the Board commit a crime. And then if such a showing, you have to consider facts (listing them). They haven’t attempted to go through that process. We follow the SC’s approach, US SC acknowledged chilling effect without some preliminary showing or safeguard. Dealing with privilege fundamental to our legal system and asking to adopt rule that has not been accepted by any court. This befuddles me, such an overreach.
Matthews: Number of arguments in case about the process. Recognize questions whether Board’s decision meet the process, but many about the process was faulty. How do you deal with that?
Singer: This way: Open Meetings Act has statutory remedies, if it’s true, the remedy the Board’s action becomes
Matthews: How do I determine that if everything they did in executive session is shielded
Singer : B had 6 o 7 ES most under an hour and hundreds of hours of public session. After law school, worked for Howard Trickey. General Counsel School district. I’ve done a lot of ES remedies that fall under the PMA - if you give general laws you do that in public. But if a specific strategies do it in ES. This Board understood the requirement - two attorneys. You’re going to review the record. Go to the decisions. The Board will explain how they made decisions. If Board says “I’m not going to explain because of ac privilege” Ms. Wells mis
She asked, “did you discuss a general principle of law, and I objected.
Matthews: Did you in ES pairings that hadn’t been discussed in public and you advised her not to answer.
Singer: I gave here good advice. If she’d have asked if they discussed the pairings.
Matthews: The question asked for a yes or no answer, not confidential info. Only if - why is that wrong?
Singer: If I was wrong, then ask again at trial.
Matthews: That’s why I asked - what can they ask in trial?
Singer: If general principle of law was discussed then whole ES has to be in public. If you have negligence and you need to deal with it. In course of discussion I’m going to give general law as well to give advice. Not required to say, OK, I told you will be sued and now we have to go public for me to discuss that in public. I put summaries and put it in the public so people could see it. No mystery at all. Not like I gave one definition of compactness and had a secret definition in ES.
Volume of documents. Complaint about privilege laws. Have to understand how we got here. In ordinary course if had more time, we would have had affirmative to identify all communications about Skagway. I advance several weeks ago that parties provide key words to search. Didn’t go that way. Asked Board to produce all non-privileged infor. No limits. We searched Board’s servers, The boards, all board and staff to search all their personal computers. We looked - couldn’t possible put eyes on all pages. Used search software and data base and Bruce Adelson - another attorney as well. I’d advice ED and he would tell the Board. What he did after the process.
[Hard to keep up] I’ve been general counsel for months before redistricting, I was doing day-to-day for a state agency. Lots of issues about Census - all that - confidential advice to client. Your Honors pretrial came out Jan 4 - all communications. Order said present summary of all documents. And plaintiffs need to object by Jan 10. Speeded up had ten people working full time - another thousand that we felt not privileged. Time wasn’t available. We couldn’t law every documents. We continued to produce more. Contrary to Brena, no disclosure - documents already in counsel’s hands, letter to day was explaining. Long intro, but a lot here.
Privilege is in evidence rule 503 - anything you say intended to be confidential, not solely to legal advice. When Mr. Foster, not clear if lawyer was hired. Enough to fall into privilege.
Not limited by Public Meetings Act. When ?? Walker in Valdez. When Ms. Stone writes to Mat-Su Borough. Distinguish about public bodies different is not in the law.
Matthews: Does it make a difference if Oper Meeting Act applies?
Singer: No. You should read every email between Board and Counsel. It doesn’t matter if open meetings act applies, and you accept their allegations apply, then a Board action could be invalidated. It’s your job to decide if that’s in the public interest. Courts have been concerned it would hurt the public interests. If I incorrectly advised client at deposition and it comes up again in court, Judge can call it ball or strike.
Supposed to be public process and client committed to public process. Law says Board shall have counsel and be advised … Sec 11 Article 6 anticipates your Honor’s role to determine if Board complied with Constitution. Every single plan has been challenged in court. Role for counsel to give confidential confidence to Board. “If you consider that option, let me tell you the risks. Of that action.” Intended by the constitution. We followed the Cool Homes standard.
If Board violates the rules, but we operated under the assumption that the act applied and we went into ES sparingly. Majority of Board meetings the counsel didn’t attend. Attended half of those meetings. Ms Wells wants to deal later. Don’t appreciate notion that we did things knowingly. Issue not decided by SC. If bases for invading AC is to see if we violated the Open Meeting Act, - …….. Board is an independent entity, forms self every ten years. Appointed by Gov, Speaker, Pres of Senate, SC Chief Justice. Doesn’t answer to any of those. Applies to Boards, that miss the point. Independent entity. Has to comply to Article 6 of Constitution, but free to set own rules.
Matthews: subject to judicial review?
Singer: Article 6, absolutely subject to judicial review as legislature is, or any branch potentially. But one branch can’t tell another how to organize themselves. Redistricting Board independence important. If legislature can tell the Board how to organize, where would it end? Not contemplated in the independent Board when adopted in 1998.
Summarize: Plaintiffs have mangled the law by conflating different laws. There’s any possibility of waiver of privilege of those documents. Then next point - to obtain review, plaintiff has to make case that one of the exceptions exist. They don’t mention 503, no basis, no reason for court to conduct in camera review.
Brena’s new argument about - Board members explain how they came up to.. If Board members are opining about their own decisions, then decisions require in camera review. Why argument is absurd. If defendant says not responsible for causing the accident. The Board members are charged in Sec 6 and proud of work project they’ve produced and they went to explain to the court.
Matthews: Question: You’re saying Board member can say, if asked Why did you make the decision. Well it was based on sound legal advice we received. Does that end the inquiry?”
Singer: Guarantee that’s not the answer you’ll here. Budd Simpson has lived in SE and he explained why he put Skagway where it is in detail. If the Board said we drew this 40 district plan because of counsel, we’d had a problem. But Brena says, if Board member says they have these characteristics and because there was no other way to draw it without disrupting everything. Brena - something the lawyer said that influenced the decision. Board is explaining the reason for its decision. Board has to be able to explain oneself - not as a defendant.
Matthew: Back to my hypothetical. “In part I based my decision on advice of counsel” Doesn’t that open ‘what advice you get.”
Singer; No - why did you cash that check.
Matthew: If insurance caee say, I did on advice of attorney, doesn’t that open up to ask what the advice was?
Singer: pause, then back to maybe will have to make calls in the trial. Also think what Brena, …. He’s not offering to waive his ca privilege. Board doesn’t waive.
Matthews: To be clear: If board member asked why did you make decisions to pair Valdez and Matsu and gives lengthy explanation and also and sound legal advice of attorney = are you saying that doesn’t open it up.
Singer: I’d like to think about it more and it will come up in trial.
Matthews: 1. In camera request for emails and 2. Questioning in trial of these decisions in how they decided and role of legal counsel.
Singer: This board very hands on and they made the decision. Simpson made SE maps and offered affidavit on how that was done. Nicole Borromeo was principle drawer of that district but agreed by all. It wasn’t possible to draw a district the way Valdez wants it. And it demonstrates why . Hooper Bay has significant consequences. Large community if you put it in 38 and it has ripple effect into other districts. Wasn’t influenced by counsel in the least. No issue and should be decided in trial.
Matthew: Fair enough
Singer: Trying tog et through the myriad issues here. One of the painful things for Board about today’s fight. They were invested in public process. Ruedrich said in deposition this was the most public Board ever. Understand the attorneys’ roles. Not why Board put up the website and kept it up To date. Concerned what this will do to future Boards. Feel loyalty to institution and ability to function. There are occasions when Board needs confidential legal advice.
No VRA act questions raised. Proud of that. If there is problem they can can take it up in federal court. Up to last time obligation to VRA but after 2013 no obligation to VRA. Could have done it without looking at VRA, but risk of violating the VRA. Didn’t need pre-clearance this time. We haired VRA expert to make sure it was ok. No intentional packing or cracking.
If court demanded the Board produce all the communication, please consider what that means ten years from now, when the attorney in ten years, he or she will have to consider there will be litigation and my words will be opened. Incredibly destructive to process and to client’s right to confidential advice.
Matthews: Coming out of ES you talked about legal advice.
Singer: Talking out of both sides of your mouth. First - we did specific candid advice about legal threat in ES. In public session long presentation about VRA report. I worked closely with the counsel about what should be in the court. We did it to avoid violation and going to court.
Any other questions your honor.
Matthews: Point by Ms. Wells in reply - specific but narrow rule of law. Not privileged.
Singer: What rule of law did you discuss in ES. The rule is to discuss a specific legal threat. If she asked if there was a session to provide general legal advice? Fair questions. One map had a problem map. That’s identical to one Court blocked in ES and that’s a version of D2 that was held illegal by Hickel court - that decision would make you sued. And mentioned compactness. That doesn’t violate the rule of law. In correct reading of Cool-Homes. That’s my reading.
Matthews: I understand, other points?
Singer: Mis Stones says, “We don’t know if something I privileged” Ms Marcum had a custom of writing questions down that she wanted to ask me and noted them as a/c - she asked about pre-litigation. I’ve gone too long. apologize. Kitchen sink.
Matthews: One miscellaneous question. In your brief you refer to Board’s open meeting policy and we agreed on my seeing the Board’s website, so could you send it to me.?
Singer: I’ll produce a copy. D
Matthews: Want to look at it, and didn’t want to go to website to do it.
Wells: A lot of things said that were misrepresentations of the law and extremely inaccurate and won’t go in
503 specifies subject to privilege. But in a govt body - who’s the client, and the people of the state do not yield their sovereignty public servants don’t get right to decide what is good for the people to know. Not constitutional right, but expressed and fundamental. We look at scope of the privilege under the ac privilege. 2018 Griswold case - this idea of fraudulent basis for fraudulent review. Griswold involves documents withheld by quasi -legislative body and court found certain things privileged. Then a request for public records of bills by attorney to city. It tells you the 3 steps that allow the court to make the determination and present it to parties and allowing them to make ….. We don’t have to prove fraud to get there. Other issues I hear Singer saying to decide at trial. He has not given any affidavit of two Board members of the two members who are in disagreement and so we have no information on them. Rule 1.13 rules of professional comment - rule on scope of - different balance between maintaining confidentiality when public interest is involved. We are not talking about a private person, but a public body and its need for advice and the public’s need . Questions.?
Matthews: No
Stone: I join what Ms Wells presented. Mr. Singer mischaracterizes my words. Mr. Singer threatened us to move to Federal Court concern with lack of collaboration between the parties., so we do think the in camera review.
Matthews: Mr. Brena
Brena: You asked the question if decisions are made on advice of counsel, I think the answer to your question is heck yeah. Of course you can. All through this process Singer was offering advice on all sorts of decision. Specifically Valdez. For example appendix A p59, Mr. Singer issues of Matsu and Valdez paired on compactness. His interpretation of prior cases is central???
2. If opposing counsel is using too broad a scope, it cannot be remedied at trial. We have 6.5 hours in trial. It goes to whether they have to produce the information they were asked to produce. Memo from Torkelson to Marcum, subject matter: challenges and pathway to a plan. Singer is not even copied on this. Completely blacked out and redacted
Matthews: If what is redacted is the advice from counsel.
Brena: This is what we’re getting showing page after black pages. I want the judge to call balls and strikes. There is no choice but to ask you to go through those emails. The standard he suggested for in camera review. We had witness who relied on notes and refused to show us on advice from counsel. We ask this from the beginning. This is an abuse - showing blacked out pages.
Review of VRA - direct you to brief Ex A p.29 - Ex A p 38 they come out of ES and say had extensive discussion of VRA experts. Now we’ll hear from legal counsel who will summarize their finding. He goes on for five pages. Talks about the district - why summarizing five pages. Summary VRA does not have problem with plan, at least as the plan is now considering tem?. There’s a specific process under Hickel rule whether pre-approval is required or not. You can’t talk about five pages of what was in the VRA report. We need to know if Mr. Singer’s summary is complete. Email exchange - numbers - between Mr. Torkelson and Bruce Adelson that was summarized in multiple pages after ES. Mr. T suggests - Mr. Adelson lists risks if he is an expert witness, they have no confidentiality rights. Mr. Adelson did an extensive report that is summarized extensively. I think purest case I’ve seen of waiver of a privilege. Can’t come out of ES with five pages of summary and then say the report itself is privileged. As soon as you make aspects public, you open it . You can’t reveal the parts you want to reveal and hide the parts that you don’t want to reveal. You should order this report. Important not because go to Federal court or not. They did precisely what the Hickel plan says not to. The planner say you start with these districts. Once you start with VRA aspects - ignore VRA and do them in the end. Took Fairbanks out of play then they wanted a Doyon and Ahtna District.
Matthews: Don’t want to cut you off, but
Brena: VRA report was waived and regard to emails, I’ve showed you the redacted pages. Nothing has counsels notes.
Is the constitution a deliberative process of the board and the basis of its decision should be before us or not. If we cannot gain insight, we can not make a proper record to go to the SC. Should the deliberate process be made in public or not.?
Matthews: Alright folks. Lots to unpack. I’ll get a decision as soon as I can. Singer’s issue?
Singer: The VRA report is in the Proclamation Plan. We didn’t get Mr. Brena’s expert until this morning. Mat-Su and East Anchorage. Calista want more days.
Baxter: We don’t have documents from Brena and we’re asking court to ask plaintiffs to produce.
Brena: I wan’t completely prepared to have this conversation now
Matthews: Just a timing questions
Brena: With regard to shape files no problem, just trying to get them out. We asked the same things - all communications to the Board and haven’t had opportunity to meet with Board. As I understand how this is playing. They plan to say ac privilege while asking us to produce it. It is a timing issue, see it as burdens on, but happy to get the shape files out the door to evaluate our maps.
Wells: Let court know we did get it to them Saturday when it was due. Some objections about cope, but a significant /// we think is responsive.
Singer: If there’s a withholding on ac privilege there should be a log
Wells: I will look and talk to the board about that.
Matthews: Timing on depositions
Brena: Yesterday was a heck of a day.
Baxter: We have ????? No ac issues
Wells: Witness being deposed 19th
Baxter: Wed, Thursday, Calista on Saturday
Brena: My request complied with - took D’s two weeks ago and still don’t have a reply
Singer: Think Brena is making
Matthews: Hold up, let’s not go there Mr Singer
Singer: He’s saying because Board members explain why plan is constitutional that that is a waiver, no discovery before the court
Matthews: Docs on privilege log?
Brena: don’t know the answer but don’t believe so. Like all of us giving documents of our communications, we’re asking them to produce documents….. Data request not responded to. Went through five depositions without the data.
Matthews: I think I heard extensive argument with counsel
Stone: We are in process in doing this but got delayed having to review the privilege log
Gardner? We need clarification from Mr. Baxter
Baxter: To Skagway, Valdez, and Mat-So, not to Calista
Matthews: Expert receive with enough time before Wednesday. I’ll be addressing the ac privilege shortly.
Brena: Getting expert’s disclosures, just haven’t gotten it yet.
Matthews: I know all are stretched - time is something you don’t have. I’m on same schedule as all of you. All on the same life raft.
Brena: Does your honor have the email?
Matthews: No, but Mr. Singer has them and will get them to me if I ask.
Depositions…
Singer: Does court want transcript or video?
Mathews: both
Brena: We got them… ??
Matthews: Court reported sent us and e???
Brena: yes, that’s what we're doing, searchable.
Matthews: Better if sent notes directly to redistricting email because that follows me.
Gardner: 3 small things 1. Confirm next scheduled hearing - still Wed 8am
Singer: Can we change it to Tuesday we have depositions Tuesday.
Matthew: Can set late onWednesday. We’d like your stuff first.
Singer: Two on Wednesday, but after 2pm Thursday. Hard to do two depositions and court hearing.
Gardner: We could take break from depositions on Wednesday.
Singer: If can’t break ask court to do something?? On Saturday. Time before the court.
Matthew: If going at 9 and 1, either , how about Wed at 4pm. Hopefully got the depositions done. Rather do it Wednesday. You’ll all be in better position and don’t want to do it day before trial. Wed at 4
Gardner: 2 cleared just now 3. Several witnesses are living in RuralAlaska - internet access and travel unreliable - need to have deadline for cross examination decisions.
Singer: We can’t have a deadline. I don’t want to ?? To anyone. If we review affidavit and decide not to call . Ms Gardner when I raised the two week requirement for our witness, she said, that’s what they signed up for. Same process for both parties. In each case when providing Boad testimony.
Scheduled to go 3rd in lineup. A difference here. Board facing five different lawsuits. Here you have the direct testimony and just a courtesy - does not seem unreasonable to ask who you intend to cross.
Singer: I haven’t read them. Not hiding the ball, I respect Ms Gardner and Schecter and if there are any witnesses. It might be I’m disinclined to call, but then it doesn’t turn out that way. Gardner: I’m dismayed that Mr. Singer hasn’t read them. I’ve talked to him about these issues and he insisted on no extension unless the Board gets extension. Mr. Singer can’t be bothered to spend half and hour for multiple flights and life disruptions.
Brena: Done a number of reptile d Just a courtesy, but not that it can’t be changed. I would ask that all parties indicate who they intend to cross by Wed that could be changed.
Wells: Housekeeping - we did provide 1300 pages, not ac privilege
Matthews: Witness issue. Ms Gardner you did raise before - internet and travel issues. It is fair to find specific days people are going to testify. Hard to tell when going to be called, most likely day just looking you’re #3 in group
Brena is number 4
Matthews: - then early the following week. Ought to be able as this progresses we can narrow when they will be called. Word from Mr. Singer before the weekend.
Matthews: fair not to wait until that day
Singer: I have a number of points I want to establish from the witnesses. If have to make today, I’d say both. If we know we don’t need them, I’ll tell you. But we get to cross the witnesses
Matthews: Ought to plan on taking them on second Monday. Mr. Singer every courtesy you can when you know you have a final decisions. Pick a day folks when should be available so they don’t have to make last minute travel arrangements. May have to be in town the day before.
Other housekeeping matters? Thank you for doing this on a Sunday. Longer than intended (4pm now)
4pm on Wednesday. I’ll be working on getting these decisions.
Singer: Brena can we talk.
Brena: Do not intend to depose TJ tomorrow. Does anyone intend to cross TJ tomorrow
Gardner: I do have about five sessions
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