[UPDATED Dec 23, 2021: Here's a link to the 3rd Pretrial Court Order that came out of this meeting yesterday. Thanks to the Redistricting Board staff for getting this up quickly. Much harder to track these things through the Court system. And the Supreme Court has given the Superior Court two more weeks (to February 15) to make its decision.]
The Court met today from 10am Alaska Time to about 12pm (I'm a little confused as I track this in Pacific and Alaska time. I thought the judge said it was going on three hours. Did it start at 9am?) There are a number of questions about how to track what is being done. The YouTube channel I was checking didn't do anything even though it said it was starting today at 10am. I had the same thing in a different window and that one was already in session a few minutes after ten (eleven here in California.)
Basically, they debated and/or raised questions about::
1. What the Board has to turn over to the five plaintiffs - all the email and other records, or just the ones that the Board decides doesn't compromise attorney-client privilege and personal information like passwords. Should the Board be in charge of deciding what was privileged or should the plaintiffs? The compromise was to do it in stages which I'm not totally clear on. The Board will use search words to try to sort things out and give the rest to the plaintiffs, but the judge will make other decisions as the process continues. There was also debate about whether the Board was being overzealous in what it considered Attorney-client privilege give this is a public agency.
2. How many witnesses do the parties get? This was complicated by the question of how many witnesses the intervening party (Calista) gets. And it's complicated by the fact that some cases may overlap.
3. There was discussion about what was going to be live and what would be done in court. Depositions and affidavits will be take for direct testimony and live trial time will be devoted to cross-examinations, redirects, etc. And whether everything would be done via Zoom or whether there would be live in court time. It seems to be leaning toward all Zoom.
4. There will be weekly meetings with the judge and the judge told the plaintiffs and the defendant to have their own meetings to work out as much as they could.
It's still not clear to me whether those attorney meetings (without the judge) will be available for the public to view or how we keep track of changes that might come up. Or how the public will get to hear the direct testimony that is shared electronically, but when the trial is going on.
But right now my granddaughter wants to go biking along Venice Beach/Santa Monica bike trail. Don't feel too jealous, it's cloudy and cool (low 60s) and threatening to rain.
So I'm going to just give you these raw notes below. I reserve the right to clean them up a bit later after we bike. But thought I should get this up now. Mr. Brenna, representing Valdez, says his office will come up with transcripts for all these meetings.
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Rough Notes Dec 22, 2021 - Zoom meeting of plaintiffs, the Board, and Judge Matthews
About 10:05 am - Discussing whether the Board can give the plaintiffs (Brenna - for Valdez) a copy of the software so they can see how it was instructed to come up with the maps. Looking for plans they put out for public comment or finalized - the data, political parameters, the data they considered when they made the maps.
Matt Singer (ARB attorney) is arguing that for licensing reasons they can't share the data.
Holly Wells (attorney for Anchorage plaintiffs)- our office uses remote access to use computers. I'd suggest that instead the 9-4 office access we use remote access.
Brena: I asked for that if it's possible so people can review them wherever they are to do it.
Singer: No one suggested it. Easiest is Mr. Brenna's expert can contact us directly and we'll set it up.
Matthews: I'm going to assign remote access. All we can settle today
We have huge group of lawyers with lots of experience. Suggestion, need to meet and confer, is crucial in this case. In addition to weekly meetings with the court, I'm going to require a weekly meet and offer between the lawyers. Bring your experts. By Zoom or in the same room.
Matthews: Question of emails and communications on the record. I understand Mr. Singer's concern about how big a task this is.
Singer: Working on record for six weeks. Original paper filed before the board and proceedings. That's the record. Probably 50K emails. Most of it coordinating travel to distant meetings or coordinating Anchorage meetings. Going to be thousands of pages that have no bearing. More appropriate - let's do corporate discovery. Uploading all emails sent and received into data bases so we can do word searches. Brenna concerned about Valdez, we can get that communication to him unless advice of counsel. Use discovery, time and keyword descriptions. Give us everything approach - here's the password for the Alaska Airline - this should not be part of the public record that sits in the court records forever. Courts going to have to, 'give us everything' approach is going to take a while. Board deserves appropriate privacy. We need a manageable approach in light of limited time. In past, this was handled through discovery and not part of the record.
Privileged documents - different from identifying everything and 500 item privilege log. Not supported by rules of evidence or any case law. chilling effect on future counsel of the Board - every time I was advising my client I was telling the world. Invasion of attorney client privilege
Matthews: Who wants to speak for plaintiffs?
Brenna: Happy to defer to others
Wells: Think there's misunderstanding by Board. Talking about Attorney-Client privilege when talking about a government entity. We know when we send emails to public agencies, many of those are public record. Access to these records is important and something the Board should have prepared for from the beginning. Tells us Board will retain reading files, including emails.
Whether in record or in discovery, we get material due us from a body - one that is sued whenever formed - Board has no rights of privacy. Board is required to do things under Open Meetings. I want to see the Board understand its obligations as a public body.
Stacey ? Mr. Singer proposed a protective order. Extent to concern about firehouse opening - should err on side of protective order. If party finds a document that doesn't appear to be public, that can be pulled out.
Brenna: Board members have emails - I can tell you I've spent in multiparty cases, more than a month trying to determine what search is reasonable. We're asking all communications regarding Redistricting. Scheduling flights can be cut out, or not. Or we get them all and we exclude what isn't relevant. Yes, if they want to search for passwords or other things not related to redistricting. Send us the emails and let us take it from there. We're entitled to the communications. They did work of public, supposed to do it by consulting with the public. We have the right to know who they were doing it???? I can't imagine that many privileges that need to be asserted.
Singer: Board aware of public entity obligations. We anticipated litigation The lecture is posturing. We spent weeks of meetings at Wells office. Does not compel attorney-client communications. The privilege does apply. How can we do this in an unprecedented time crunch of five plaintiffs in 6 weeks. Do we throw out basic rights of Board's privilege or do what we normally do and ask for what are related to the case. Provide us your searches and we'll conduct them.
Binary choice - go for everything - then we won't complete the task in next weeks, or do something manageable. There aren't that many issues in the case. Valdez doesn't like not being with Richardson Highway. Matsu and Valdez cases the same. Overpopulated. Board decided that was the best solution. We should be able to conduct searches needed for the complaints. I suggest the Board move on to pretrial order. Say ten days to get responses fast. Two weeks have gone by and no one has said, "Give us this or that."
Brenna: First, redistricting is like a jigsaw puzzle. What's wrong with one piece goes on to other pieces. This process. They're going to have to conduct a search for protected emails anyway. It's going to work out ... These aren't narrow. They aren't going restrict 50K to 5K. Going to have to do the work anyway. Why do key word search and not even know if search done correctly.
Counsel keeps suggesting why don't we work it out. We've started that right out of the gate - ask about software from beginning, but no info coming our way. When you do legal research, you find something that leads to something else. We've done millions of documents, this is nothing. We find something that leads to something else. We need to start putting our case together immediately.
Singer: I have subpoena to State of Alaska, state has largest law firm in Alaska - 90 days out and still working on the response. Asking for all communications is ..... How do this on extraordinary timeframe. Refusing to work with us .... enormous taks. Only so many hours in the day.
Matthews: Two dif issues. 1. Request to expand to include all correspondence will unnecessarily gum up works for this courts review. 2. Discovery of those emails is entirely different. OK to ask for all correspondence that went into the decisions here. I'm not going to automatically expand the record, but give plaintiffs a chance to expand. 50K emails is a modest number. Time frame, but tight time frame. Board should have anticipated. Glad you started the process of downloading. That should continue. Turning it all over is a bit much, potentially private and client-attorney privilege. Board's job to call those out. Communications in this cycle are ....
Plaintiffs should come up with joint list of search words. Board should continue downloading everything. If time were no issue. Key topics and search terms short list.
Order: Continue doing download. If you want to assert privilege, do so. But if wholesale categories - won't make privilege log, but tell me base numbers and catalog is there is a challenge. some communications between the law firm and Board not privileged. Someone left a password - not individual .... Board can call those out. If you search for word password. 1000 emails where someone listed with password or mention of password. Or Matt space Singer, get attorney emails.
Plaintiffs as a group, you are all competent and should be able to come up with a list.
Brenna: so I'm clear? They're going to cull out info and give us what is left?
Matthews: Cull out attorney-client privilege. I'm anticipating a phased approach. Culling out will narrow down the process. Don't know how to determine if there is completely irrelevant material. I could determine later that all material turned over, but not making that decision today.
Brenna: If Board goes thru material and culls out client privilege docs. And they search for and take out private data, then why isn't the rest just being given to us?
Matthews: Will also include irrelevant material and privilege and private data. Not sure how that can be done quickly without individual review. Willing to put out protective order saying that info is not to be disclosed.
Brenna: Board set up specific accounts for work, not their businesses. So, we're happy to enter into a protective order that says we'll keep all of it protected. Most efficient, have them turn it over and then give them an opportunity to review it if we want to use it. But we're only get some leftovers? Then keyword searches on top of that?
Matthews
Wells: I do think scope of our motions - communication between Board members, whether on private computer or on Board computers, we would want to see all of that, because one thing we're trying to address is the decision making process we don't see in the video.
Brenna: Final thought. In terms of what's relevant to our case - that's our call, not opposing attorney's call. If we have protective order that addresses these issues. Trying to figure out why we are asking them to do keyword searches instead of us doing the keyword searches.
Matthews: If we pull out attorney-client privilege.
Singer: Normal expedited discovery - if court wants us to pull out attorney-privilege then there should be a callback provision, for things not caught. Just don't know how long it would take.
Brenna: Callback provision is something we see often. That helps address the issue. If we have an issue, we can ask your honor to address it. How will we be able to test that things are being properly protected, and can test the assertion of privilege.
Miss Dunn: There are relevant documents they would be automatically discoverable. One proposal I made that the Board produce members for discovery. We do anticipate we'll have their email discoveries before that. We need rapid actions. Your honor proposed, get protected order, Matthey Singer Schwabe. Need to move timeline in accelerated fashion.
Matthey: Mr. singer. I think the discovery needs to happen - clawbackand protective order appropriate. Parties should get that in as quick as possible. Point over testing privilege is a fair one but not one that needs to be addressed next week. May need to be litigated and will need to know what has been withheld. So 90% can be done quickly.
Singer: I have this notion because expedited that means we have to catalog so they can test the privilege is .... This is an agency appeal. Appreciate right to discovery, but idea that we should have anticipated and catalog every communication. Has the court ever seen that? Highly unusual. We will continue uploading each member's ....
Brenna: Talking about communications with law form, needs to be individual. Shouldn't be that many attorney-client memoranda. That privilege requires supplying supplemental advice.
Singer: That requires me to read everything to determine. Eyes of attorney. Need to make clients ready for deposition.
Matthews: We could spend hours here. I'm letting attorney-client privilege an be pulled out now, but we could change that later. Mr. Brenna you may be correct that only a few qualify.
Let's talk about time frames. Mr. singer, since much is falling on your shoulders. Taking several weeks ins't reasonable. A dump of those emails need to be ready by next week.
Singer: We'll do that, no later than one week from Friday. Strive to do it by that day. Make it a burst download to share file and provide all counsel.
Brenna: After we get info we have to go through it. Talked about a deposition schedule. We need to take deposition of Board members, need to review that info before it occurs. We aren't going to get a week or ten days to go through it.
Wells: One quick point. Doing affadavit, permitted to cross or redirect and redirect on documents that weren't available when we do depositions. Speak only for East Anchorage plaintiffs.
Brenna: Allowed three deposition witnesses. Affidavit file might speed things up. Can we deal with the six witnesses forefather process - preservation deposition takes more time than by affidavit.
Singer: Misgivings or doubts whether affidavits might be more efficient. Allocate time and track it carefully, Ms. Wells talks about redirecting. Might it not be better to let witnesses testify in standard flow.
Brenna: two things: 1. Having profiled direct testimony is routine, saves , only have so many hearing days. Preservation deposition take more time, but outside of limited hearing days. Logic Judge Morse used.
Matthews: two issues 1. providing disclosure to all of you will give more efficient process instead of waiting for trial days, more efficient, only so many days to complete case 2. Allow me to start work on understanding what the case is and do reading before trial. You all have staff members and I don't mean to whine, but you are all going to give me lots of info in advance gives me more time.
Time frame: All this is condensed. Trial start of Jan 18, getting your witness list. Would like to move it up a day, Don't know how much testimony we're looking at or how much overlap until I see the witness lists. I know it adds more work. At least the lay witnesses by 28th if you want the experts by 29th.
: What dates do you want for lay and expert witnesses. It was Dec. 29 and Jan 4 but don't have it
Matthews: By 30th december, intervenors by 4 January. I don't think you can wait any longer than those dates. Leave those deadlines in place. If Supreme Court comes back and gives us two more weeks, we can slip a little further. Still pretty condensed. Don't see how to start before Jan 18 and still looking at 12 trial days.
Amdur-Clark - Morse's order assumes the same plaintiffs and timing as defense.
Brenna: Discussed. Intervenors intervened - They were in with the Board. They were getting extra witnesses. That's between intervenors and the Board. They seem to be asking for more witnesses. That wasn't what Morse intended. Frankly, I would have objected to their intervention if I knew they wanted more witnesses.
Amdur-Clark - I don't agree with the characterization of Morse's remarks. We don't align completely with the Board. Forcing us to share witnesses. No point in having intervenors if they don't have a role to play.
Singer: The order already unfair, three witnesses per client, Matsu and Mr. Brown each get three = they get 15 witnesses and we get 7 witnesses and now saying that we have to share with intervener. We can live with the seven but intervenor should have it's own witnesses.
Brenna: 1. There's a difference of opinion of Judge Morse's conversation. Getting transcription 2. Mr. Singer's unfairness point. Skagway is entitled to seven witnesses. And Skagway's concerns are distinct from other plaintiffs. We have seven witness. Have opportunity to put 17 witnesses against us. Board gets twice as many witnesses to oppose Skagway as we have. We aren't a collective whole. Two are roughly aligned - Matsu and Valdez.
Seven affadavits and preservation depositions. Beendisagreement between our characterization of Judge Morse.
Amdur-Clark - He made my point. Our interests are different from the Boards. As he points out that Skagway has a case to make, we have to make arguments different from Valdez and Matsu's/
Matthews: To extent that there is a transcript. I could also go back and listen. I will listen to transcript. Judge Morse's order may not have spoken to number of witnesses, but elsewhere he seems to contemplate number of intervenors witnesses.
Brenna: That's the date we are supposed to file. That's the reason for the transcript.
Singer: We hear different things. We now have a permanent judge and it's your case.
Matthew: I kept you for longer than I anticipated. Let's talk about motion response time. I have motion to dismiss from Mr. Singer. Just saw it came in. Appears to be directed to discrete portions of four of the complaints. Realistic time frame to resolve. Mr. Brenna one is directed to one of your complaints. I need to be reasonable but I need your response.
Brenna: We can get a response by Monday.
Matthey: Reply, by 10am Wednesday.
Matthew: Next Wednesday's hearing won't deal with that.
Wells, Stacy Stone?, Brenna - missed this about dismissal and ability to go to SC there would be no way to remedy an injustice. . .
Matthews: Seems appropriate but allow Singer to reply.
Singer: Topic is one the redistricting board is required, the Board is required a second round of public hearings. Purely legal question. Not contested. Board did not have a second round of public hearings. Binary choice. Board is to issue plan get input then adopt the final plan. That was affirmed by the SC. Issue is resolved. Should waste limited trial time. Everyone should be permitted to put into the record what they want. But time limits are important.
Matthews: I'm not sure pure legal issue, that there are factual issues. What does it mean in this case. Disagree with Singer that it's neat and clear. Preview of argument to come, if there is an issue Ms Stone and Ms Wells, put that in your . . . Won't make ruling today. Appreciate your raising it today so I'm alerted.
Fairly well covers my list. At least weekly discussion hearings, motion practice. May need to be adjusted depending on SC - Next Wed 29 at 1pm then on Wed Jan 5 at 10 Monday and Wed 14th
Schechter: Number of witnesses - six plus expert or six including witness.
Brenna - five different complaints, not fair to put someone in position where Board gets twice as many witnesses plus intervenor and Valdez gets half. Match Valdez witnesses and Board witnesses. Morse put forward that each plaintiff has a day.
Matthews: Morse did anticipate each plaintiff has a day and Board gets 4 or 5 days. My understanding six witnesses - three by video - three would be plus experts Some for Board. We still have to consider how much time this requires.
Brenna: One more thing to considered. The way this is structured not clear - we have a day for case, but witnesses on video outside of the day or affidavit. So actually cross examination or redirect. Then Board gets 3-5. On Valdez' day what do we do if not direct. Have preservation deposition, nothing live but redirect. I interpret that he anticipates that the Board had 3-5 and plaintiffs one to do as they choose.
Amder-Clark - Singer is nodding, do you agree?
Singer: yes, we have to make choices about how much cross. I may not want to cross all of Mr Brenna's six witnesses. In past, played a bit like a chess match. Ended up with three minutes for closing argument.
Brenna: That one day, Mr. singer crossing my witnesses. That sort of chess match approach - did with Valdez case. Makes no sense to be on one particular day. I'll have to make choices like Singer does.
Singer: We'llknow wha days we can cross different witnesses.
Stone: Raised issue earlier about posing the Board - video depositions ahead of the trial, if Singer has profiled direct testimony. May expedite trial and give your honor more time to review.
Matthews: Want to deal with trial time, important for all I contemplate allocation of a day is basically clock management. Time for cross, redirect. someone takes 3 minutes to make an objection is 3 minutes off your clock. Helps if we know which witnesses and order and it could change based on witness availability.
Board depositions is fair question and needs to be addressed. Ms. Wells?
Wells: We agree with Ms. Stone. Our issues are specific to Senate pairings and not house districts. It could save a lot of time. We need to talk to all the parties including the Board.
Brenna: I agree and also two staff members of the Board.
Matthews: This kind of discovery planning, is prefect reason why we have meet and onfer, all together with calendars. Like to see results of that meet and confer by next meeting. Sorry to play Grinch, but that was given to me. I suspect Mr. Singer has depositions he may want to take.
Singer: To the degree that plaintiffs want depositions from Board, we certainly will cooperate.
Brenna: Judge Morse opened the opporunity for live and zoom and preservation depo, his concern if you have a map you want to be live. I've gone through many zoom trials and the maps can be done Zoom. This is going to be complicated if we have some live and some zoom. I would encourage everyone to just have this zoom and we know that and it helps focus our timing. If Board wants a live witnesses and main concern was not a problem in Zoom hearings. We can do that effectively with maps in Zoom.
Matthew: The concept yesterday that this would be Zoom trial. He seems to have felt it might not work for maps. Assuming this will be a Zoom trial. One thing if I'm here in court. If all of a sudden - just having all of you and teams means we have to move to the multimedia courtroom and there are other demands for that room. I'm assuming Zoom. I've done dozens of Zoom trials.
Clock management. I'm looking at the three hour mark coming quickly. We've covered a lot of ground coming quickly. Mr. Brenna if you want today's words transcribed, please send me a copy.
Brenna: Our intent to transcribe every hearing. Happy holidays
Matthews: Happy Holidays.
