1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. LAW OFFICES One Arizona Center, 400 E. Van Buren, Suite 1900 Phoenix, Arizona 85004-2202 602.382.6000 Brett W. Johnson (#021527) Sara J. Agne (#026950) Colin P. Ahler (#023879) Joy L. Isaacs (#030693) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren, Suite 1900 Phoenix, Arizona 85004-2202 Telephone: 602.382.6000 Facsimile: 602.382.6070 [email protected][email protected][email protected][email protected]Attorneys for Intervenor-Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Arizona Democratic Party, et al., Plaintiffs, v. Michele Reagan, et al., Defendants. No. CV-16-01065-PHX-DLR DEFENDANTS’ AND INTERVENOR-DEFENDANTS’ MOTION IN LIMINE ON PLAINTIFFS’ SPOLIATION OF ELECTRONIC EVIDENCE /// /// /// /// /// /// /// /// Case 2:16-cv-01065-DLR Document 352 Filed 09/18/17 Page 1 of 13
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Brett W. Johnson (#021527) Sara J. Agne (#026950) Colin P. Ahler (#023879) Joy L. Isaacs (#030693) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren, Suite 1900 Phoenix, Arizona 85004-2202 Telephone: 602.382.6000 Facsimile: 602.382.6070 [email protected][email protected][email protected][email protected] Attorneys for Intervenor-Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Arizona Democratic Party, et al.,
Plaintiffs,
v.
Michele Reagan, et al.,
Defendants.
No. CV-16-01065-PHX-DLR DEFENDANTS’ AND INTERVENOR-DEFENDANTS’ MOTION IN LIMINE ON PLAINTIFFS’ SPOLIATION OF ELECTRONIC EVIDENCE
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Pursuant to Fed. R. Civ. P. 37(e), the inherent power of this Court to sanction for
abusive litigation conduct, and the Court’s order dated July 31, 2017 (Doc. 334), State
Defendants and Intervenor-Defendants (collectively, “Defendants”) move for an adverse
inference due to Plaintiff Arizona Democratic Party’s (“ADP”) failure to preserve
electronically stored information in the form of emails and attachments (“the deleted
emails”). The emails may have included evidence reflecting that no voter requested
Plaintiffs’ assistance in collecting an early voted ballot or, if a voter did so, that there were
easy and convenient alternatives that would not violate applicable law. In any event, the
deleted emails should have been preserved in the conduct of litigation and, at the
minimum, the Court should have had an opportunity to conduct an in camera review of
them for relevancy in this matter. Plaintiffs failed to take reasonable steps to preserve the
deleted emails, and because they could not be restored or replaced, sanctions are
warranted. See Fed. R. Civ. P. 37(e). Moreover, several high-level ADP employees
deleted email accounts during the pendency of this case, and the former employee whose
own emails were offered as ineffectual replacements for those deleted admitted he was
unaware of any litigation hold or attempts to retrieve the deleted emails. This appears to
be not just a failure of preservation, but instead bad faith or at the very least gross
negligence. See Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1007 (D.
Ariz. 2011) (failure to suspend ongoing destruction of emails and preserve evidence
“constituted gross negligence”). As spoliation of this sort is considered “an abuse of the
judicial process,” the Court may also impose sanctions via its “inherent power to manage”
its own affairs to “achieve the orderly and expeditious disposition of cases.” See id. at
1008 (internal punctuation and citations omitted).
The remedy of an adverse inference sanction is particularly warranted, as
Plaintiffs’ intentional acts deprived both the Defendants and the Court of the opportunity
to review the information during this litigation. See Fed. R. Civ. P. 37(e)(2)(B) (upon
finding that party acted “with intent to deprive” court may presume “that the lost
information was unfavorable to the party”). Defendants have been prejudiced by the loss
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of the information, and the Court may remedy this. See Fed. R. Civ. P. 37(e)(1) (court
may order measures “necessary to cure the prejudice”).
Specifically, the email accounts of ADP’s Get-Out-the-Vote (“GOTV”) Director,
as well as four of ADP’s voter protection deputies, were closed and their entire contents
irretrievably deleted in the month following the November 2016 General Election. At that
time, Plaintiffs’ lawsuit had been pending for nearly seven months, yet the deputies’
supervisor, a 30(b)(6) designee of the ADP, testified in his deposition that he never
received any litigation hold related to this matter. When it was confirmed that ADP’s
culpable mindset and failure to preserve had resulted in the information being
permanently lost, the Court ordered the filing of this Motion, which is supported by the
following Memorandum of Points and Authorities.
I. BACKGROUND
Plaintiffs brought this action on April 15, 2016, roughly seven months before both
the November 2016 General Election and the ADP’s deletion of emails that followed that
election. Among other things, Plaintiffs alleged that H.B. 2023’s ban on ballot collection
would result in Plaintiffs and their members being “completely foreclosed from
associating with voters in this manner . . . .” (Doc. 233, Second Am. Compl., at ¶115; see
Doc. 12, First Am. Compl., at ¶134.) In Plaintiffs’ words, “associating with voters in this
manner” refers to “lawful efforts to assist voters in casting their ballots.” (Doc. 233, at
¶115.) As Plaintiff ADP testified in a Fed. R. Civ. P. 30(b)(6) deposition, it was ADP’s
voter protection deputies who would have had the direct “voter-facing” contact and who
would have engaged in the activities implicated by the above allegations. (Dep. of S.
Scharff (“Scharff Dep.”), June 6, 2017, at 116:19-117:23, 136:6-137:4, pertinent portions
attached as Exhibit A.)
On March 13, 2017, Plaintiffs responded to Intervenor-Defendants’ Requests for
Production and disclosed the spoliation at issue in this Motion for the first time. (Pls.’
Resps. to Intervenors’ Reqs. for Prod., March 13, 2017, at 2, pertinent portions attached as
Exhibit B.) Plaintiffs admitted that responsive electronically stored information was
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deleted nearly four months before; particularly, they noted that:
. . . although ADP had received a litigation hold in connection with this case, an ADP employee, on November 30, 2016, closed numerous email addresses that were no longer in use. While the vast majority of those accounts were highly unlikely to contain any responsive documents, four of the closed email accounts were the accounts of volunteer voter-protection deputies and would have contained responsive documents. The closing of those email accounts resulted in the deletion of the emails in the accounts, and Plaintiffs have been unable to retrieve those emails.
The ADP employee who closed these email accounts did so as part of the close-out of operations for the 2016 campaign and believes he was unaware of the litigation hold.
(Id. at 2-3, attached as Exhibit B (emphasis added).)
Four days later, in response to Requests for Production from the State Defendants,
Plaintiffs acknowledged a fifth deleted email account that had responsive documents,
using slightly different language to describe the mindset of the spoliators, who Plaintiffs
now admitted were not just one but several high-level ADP personnel:1
. . . ADP, during the period from November 11, 2016, to December 7, 2016, closed numerous email addresses that had been but no longer were in use. … [T]here are five accounts that likely would have been searched for and would have contained responsive documents: the accounts of four volunteer voter-protection deputies and the account of the GOTV director. The closing of those email accounts resulted in the deletion of the emails in the accounts, and Plaintiffs have been unable to retrieve those emails.[n.1]
The email accounts were closed as part of the close-out of operations for the 2016 campaign, and it is Plaintiffs’ understanding that the individual who directed the closing of the accounts was unaware of the litigation hold. . . . [n.1] Plaintiffs stated in their Responses and Objections to Intervenors’ Requests for Production that an ADP employee closed email accounts on November 30, 2016. Plaintiffs have determined that accounts that had been but no longer were in use were closed on other dates within the above-referenced period as well and that, while one employee directed the closing of the accounts, the accounts were closed out by several different
1 Plaintiffs have admitted that four apparently high-level personnel—Daniel Hernandez, Coordinated Campaign Director Stan Williams, GOTV Director Tom Reade, and Data Director Sam Almy—destroyed email accounts. (ADP’s Resps. to Intervenor-Defs’ First Interrs., May 19, 2017, at 5, pertinent portions attached as Exhibit D.)
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employees.
(Pls.’ Resps. to State Defendants’ First Reqs. for Prod., March 17, 2017, at 2-3, 3 n.1,
pertinent portions attached as Exhibit C (emphasis added).)
It is unknown how many email accounts the ADP deleted during the pendency of
this litigation. Plaintiff ADP objected on relevance and First Amendment grounds to
providing additional information about the numerous other email addresses that had been
but no longer were in use that were closed during that period as part of the close-out of
operations for the 2016 campaign. (ADP’s Resps. to Intervenor-Defs’ First Interrs., Ex. D,
at 5.) Plaintiff ADP admitted that one deleted email account was closed between
November 11 and December 7, 2016, “reopened on January 16, 2017, and then closed
again on January 17, 2017.” (Id. at 4.) Plaintiffs filed their Second Amended Complaint in
this matter on December 28, 2016 (Doc. 233), were aware that full discovery began on
December 15, 2016 (Doc. 231), and issued their first sets of discovery on January 6, 2017
(Docs. 237-38.) Plaintiffs have no explanation, even in response to this Court’s questions,
for why the deleted emails were not preserved and were intentionally deleted—twice,
even, for one account. As the Court previously noted, we were “in this litigation,” when
the emails were deleted. (Tr. of Hr’g, May 17, 2017, at 13:2, pertinent portions attached as
Exhibit E.) “Why were they deleting emails in November?” Id. at 13:2-3. That answer
remains unknown.
What is known is ADP has been unable to recover any of the deleted emails. (See
Ex. D, at 6-7; see also Tr. of Hr’g, June 12, 2017, at 3:14–4:5, pertinent portions attached
as Exhibit F (Plaintiffs’ counsel explaining inability to recover any emails and that they
“are at the end of the process in terms of trying to find additional e-mails”).) Spencer
Scharff, an attorney, was the ADP’s Voter Protection Director and supervised four of the
individuals whose responsive email account contents were spoliated. Mr. Scharff was
deposed as the ADP’s 30(b)(6) designee and in his personal capacity. He testified he was
unaware of efforts to retrieve the deleted emails. (Scharff Dep., Ex. A, 109:17–110:2.) He
also testified he did not know if a litigation hold ever issued, or if any direction was given
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that emails were to be preserved. (Id. at 110:10-22.)
Plaintiffs clearly failed in their duties of preservation under Rule 37(e), Fed. R. Civ.
P., and failed even to take reasonable steps toward that end. Given the number of high-
level ADP employees who directed the destruction of and destroyed email accounts
during the pendency of this litigation—including the GOTV Director, the Data Director,
and the Coordinated Campaign Director, among others—it is unclear Plaintiff ADP even
attempted to comply with its duty. (See Ex. D, at 5:1-7.) The federal civil rules and related
case law provide that such conduct warrants sanctions. See Fed. R. Civ. P. 37(e); see also
Surowiec, 790 F. Supp. 2d at 1010 (inherent powers sanctions warranted for bad faith;
Rule 37 sanctions appropriate in instances of willfulness, bad faith, or fault).
II. SANCTIONS ARE APPROPRIATE UNDER BOTH RULE 37(e) AND THE COURT’S INHERENT AUTHORITY.
Rule 37(e) provides for sanctions when “electronically stored information that
should have been preserved in the anticipation or conduct of litigation is lost because a
party failed to take reasonable steps to preserve it, and it cannot be restored or replaced
through additional discovery[.]” And under the inherent authority doctrine:2
A party seeking sanctions for spoliation of evidence must prove the following elements: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a “culpable state of mind;” and (3) the evidence that was destroyed or altered was “relevant” to the claims or defenses of the party that sought the discovery of the spoliated evidence.
2 Even after the 2015 amendments to the Federal Rules of Civil Procedure resulted in an amended Rule 37(e) dealing with failures to preserve electronic evidence, “courts have continued to recognize powers to sanction the destruction of evidence outside of Rule 37(e) because certain implied powers must necessarily result to our Courts of justice from the nature of their institution, powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.” See Ronnie Van Zant, Inc. v. Pyle, 2017 WL 3721777, **9-10 (S.D.N.Y. Aug. 28, 2017) (emphasis added) (internal punctuation omitted) (quoting CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 497 (S.D.N.Y. 2016) ((itself quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)) (also citing Hsueh v. State Dep’t of Fin. Servs., 15 Civ. 3401 (PAC), 2017 WL 1194706, *4 (S.D.N.Y. Mar. 31, 2017) (collecting cases)).
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Surowiec, 790 F. Supp. 2d at 1005. (internal punctuation and citations omitted).
When the evidence in a case, taken as a whole, would allow a reasonable fact
finder to conclude the missing evidence would have helped the requesting party support
its defenses, it may be a sufficient showing of both relevance and prejudice to make
sanctions appropriate. See Surowiec, 790 F. Supp. 2d at 1008-09. That standard is met
here. See id. (granting an adverse inference). The Court, then, has “particularly wide
latitude” and discretion to issue sanctions. See id. at 1011.
As discussed below, sanctions are warranted in this case, under either Rule 37(e) or
this Court’s inherent authority, or both. See Hsueh v. State Dep’t of Fin. Servs., 15 Civ.
3401 (PAC), 2017 WL 1194706, *5 (S.D.N.Y. March 31, 2017). Not only does it appear
that ADP “had improper systems3 in place to prevent the loss of the” emails, but multiple,
high-level ADP employees also “took specific action to delete” the emails. See id. at *4
(finding Fed. R. Civ. P. 37(e), inapplicable only because there was not a showing that a
party had improper preservation systems in place, but ordering sanctions under the court’s
inherent powers).
A. Plaintiffs had an existing duty to preserve the deleted emails.
“It is well established that the ‘duty to preserve arises when a party knows or
should know that certain evidence is relevant to pending or future litigation.’” See
Surowiec, 790 F. Supp. 2d at 1005. The duty is not owed to specific litigants, however,
“but to the judicial system.” Id. at 1007. The scope of the duty is generally coextensive
with disclosure obligations and available discovery under Fed. R. Civ. P. 26. See, e.g.,
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003); Young v.
Facebook, Inc., 2010 WL 3564847, at *1 (N.D. Cal. Sept. 13, 2010). The duty to preserve
3 ADP Rule 30(b)(6) deponent Mr. Scharff testified that he was unaware of any litigation hold or efforts to retrieve or, in fact, any direction to preserve emails (Ex. A, at 109:17-110:2, 10-22), and the emails were deleted by an unusually high number of high-level ADP employees for there to actually have been a litigation hold in place (Ex. D, at 5:1-7). If there actually were a litigation hold in place, then it appears not many ADP employees were aware of it. (Ex. D, at 5:1-7.)
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certainly extends to “key players,” like the multiple high-level ADP employees who
deleted the emails. See Zubulake, 220 F.R.D. at 218.
Plaintiffs brought their lawsuit roughly seven months before they deleted the email
accounts at issue in this motion. Litigation in this matter was clearly pending at the time.
Plaintiffs knew or should have known that those accounts, which belonged to voter-facing
personnel contained evidence relevant to that pending litigation. Specifically, the emails
likely reflected whether or not voters ever requested ballot collection services from
Plaintiffs and, if they did, whether other convenient accommodations under applicable law
were possible (and carried out). This satisfies the first prong necessary for sanctions to be
ordered. See Surowiec, 790 F. Supp. 2d at 1005.
Additionally, Plaintiff ADP eventually admitted to deleting the accounts over
several weeks (from November 11 to December 7, 2016) after the November 2016
General Election. (Ex. C, at 2-3.) While the parties and Court awaited a ruling or rulings
from the Ninth Circuit during that period, this Court’s order staying proceedings advised:
“Within 14 days of the 9th Circuit’s ruling on the appeal, the parties are directed to meet
and prepare a joint stipulation to amend briefing and Rule 26 compliance schedule, and
submit the same to the Court.” (Doc. 225, Minute Entry, Nov. 9, 2016.) Plaintiffs had a
clear duty of preservation under the Federal Rules of Civil Procedure. Id. Indeed, the
Court’s Order references compliance with Fed. R. Civ. P. 26, with which the scope of the
duty of preservation is coextensive. See, e.g., Zubulake, 220 F.R.D. at 217-18.
B. Plaintiffs destroyed the emails with a culpable state of mind.
“Courts have not been uniform in defining the level of culpability—be it
negligence, gross negligence, willfulness, or bad faith—that is required before sanctions
are appropriate.” Surowiec, 790 F. Supp. 2d, at 1006. An allegedly spoliating party’s
culpability must be determined case-by-case. Id. Importantly, bad faith is not required for
an adverse inference instruction so long as there is notice that the evidence is potentially
relevant to the litigation. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).
As noted above, Plaintiffs admitted the relevance of the deleted emails upon
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disclosing the spoliation, nearly four months after it occurred. (Ex. B, at 2-3; Ex. C, at 2-3;
Ex. D, at 5-6.) Plaintiffs have given only “unconvincing reasons” for the deletion of the
emails—that an employee or employees were possibly unaware of a litigation hold. See
Hsueh, 2017 WL 1194706, at *5 (finding unconvincing a party’s proffered reasons for
deleting electronic evidence during the pendency of a case she brought and concluding
therefore that the party “acted in bad faith in deleting” the evidence).
If Plaintiffs had acted promptly once full discovery began in this matter—or even
once they filed the Second Amended Complaint—the emails would have been retrieved,
to include clear evidence undermining Plaintiffs’ claims. (Ex. D, at 4 (citing an account
that was reopened briefly in January 2017, when discovery was in full swing, and then
promptly closed again, apparently without thought to preservation of evidence).) Instead,
Plaintiffs were willful in their destruction of the emails and an adverse inference is
warranted. See Hsueh, 2017 WL at *6 (“Under either Rule 37(e) and the Court’s inherent
authority, an adverse inference is the appropriate remedy in light of the Court’s findings.”)
C. The deleted emails were highly relevant to the claims and defenses in this action.
Even Plaintiffs understand the relevance and unique importance of what was lost
when at least the five email accounts were destroyed—these are accounts that “would
have contained responsive documents,” in Plaintiffs’ own words. (Ex. B, at 2; Ex. C, at 2.)
Thus, there is no dispute that the deleted emails “would have been relevant to the instant
matter.” See Ronnie Van Zant, Inc., 2017 WL 3721777, at *9-10 (presuming an adverse
inference against a party who allowed a non-party to delete text messages that were
indisputably relevant to the case). Just as in Ronnie Van Zant, Inc., Defendants “have tried
repeatedly—albeit unsuccessfully—throughout this expedited litigation to access” the
deleted emails. Id. at *9.
Beyond Plaintiffs’ clear admissions of the relevance of the deleted emails and their
responsiveness to Defendants’ discovery requests, deposition testimony and Plaintiffs’
pleadings (Doc. 233) show that the deleted emails were both relevant and irreplaceable.
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(See Ex. A, at 116:19–117:23, 136:6–137:4) (testimony of ADP 30(b)(6) deponent that
voter protection deputies would have been involved with voter-facing contact via email).
The deleted emails likely contained communications highly relevant to and supportive of
Defendants’ defenses regarding H.B. 2023 and out-of-precinct provisional voting,
particularly as the emails involved the November 2016 General Election—the only
general election for which H.B. 2023 has been in effect.4 That election would have been
an intense period of communication for those at ADP whose emails were deleted and is
also the only general election occurring during the pendency of this litigation. See
Surowiec, 790 F. Supp. 2d at 1008 (failure to preserve emails from “period of intense
communication and negotiation” resulted in “sufficient showing of both relevance and
prejudice” to warrant sanctions).
Though Plaintiffs attempted to offer the emails of 30(b)(6) deponent and Voter
Protection Director Mr. Scharff as a salve for the deleted emails’ destruction, he testified
in this matter that he may have no longer been copied on “important” emails from his
voter protection deputies—and he did not know whether he would have been copied on
any important emails of the GOTV director5—in the week leading up to the November
2016 General Election. (Scharff Dep., Ex. A, at 116:4-21.) The deleted emails were highly
relevant and probative, ADP inexplicably deleted them well after they brought this action,
Plaintiffs apparently did not attempt to retrieve them until responses to Defendants’ and
Intervenor-Defendants’ discovery requests were due (Exs. B-D), and they are simply
irreplaceable. Plaintiffs should be sanctioned, under Fed. R. Civ. P. 37(e), this Court’s
inherent authority, or both, for their failures to preserve the deleted emails and for the
deliberate actions that resulted in their deletion. See Hsueh, 2017 WL 1194706, at *4-6
4 H.B. 2023, the target of three of Plaintiffs’ claims, took effect on August 6, 2016. 5 The GOTV Director, Tom Reade, was involved in the destruction of email accounts during the pendency of this litigation, as was ADP’s Data Director, Sam Almy, who has been hiking the Appalachian Trail for several months, rendering him unavailable for deposition and trial testimony. (See Ex. D, at 5)
Case 2:16-cv-01065-DLR Document 352 Filed 09/18/17 Page 10 of 13
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(ordering an adverse inference and attorney’s fees and costs6 for deletion of electronic
evidence during the pendency of case).
III. LRCiv 7.2(l) CERTIFICATION
Pursuant to LRCiv 7.2(l), undersigned counsel certify that they in good faith
conferred on multiple occasions—including on April 6, 2017; May 15, 2017; and June 9,
2017—with Plaintiffs’ counsel in an effort to resolve the spoliation issues. When those
efforts proved unsuccessful, the issue was brought to the Court’s attention, including on
June 12, 2017, as noted above, and in its Minute Entry order dated July 31, 2017 (Doc.
334), the Court ordered the filing of this Motion.
IV. CONCLUSION
Plaintiffs’ failures and intentional acts severely prejudiced State Defendants and
Intervenor-Defendants. This Court should order an inference adverse to Plaintiffs’ case
and any other appropriate relief. See Fed. R. Civ. P. 37(e).
The Court should find that the email contents would support findings that Plaintiffs
have failed to meet their burdens to prove a discriminatory effect and a severe burden
from the challenged procedures, and, related to H.B. 2023, that Plaintiffs have further
proven neither a discriminatory purpose, nor that the statute was enacted with
discriminatory intent. Specifically, no voter sought the assistance of Plaintiffs in returning
an early ballot. The Court should grant the requested adverse inference and order such
other and further relief as it deems appropriate.
DATED this 18th day of September, 2017.
6 Defendants and Intervenor-Defendants do not herein affirmatively seek their reasonable attorneys’ fees and costs for pursuing the emails and bringing this Motion, but do note that that is a remedy available to the Court. See Hsueh, 2017 WL 1194706, at *4-6; see also Fed. R. Civ. P. 37(e)(1).
Case 2:16-cv-01065-DLR Document 352 Filed 09/18/17 Page 11 of 13
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Respectfully submitted,
SNELL & WILMER L.L.P.
By: /s/ Sara J. Agne Brett W. Johnson Sara J. Agne Colin P. Ahler Joy L. Isaacs One Arizona Center 400 E. Van Buren, Suite 1900 Phoenix, Arizona 85004-2202 Attorneys for Intervenor-Defendants Arizona Republican Party, Bill Gates, Suzanne Klapp, Debbie Lesko, and Tony Rivero MARK BRNOVICH ATTORNEY GENERAL
By /s/ Kara Karlson (w/permission) Kara Karlson (#029407) Karen J. Hartman-Tellez (#021121) Joseph La Rue (#031348) Assistant Attorney General 1275 W. Washington Street Phoenix, Arizona 85007 Attorneys for State Defendants
Case 2:16-cv-01065-DLR Document 352 Filed 09/18/17 Page 12 of 13
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CERTIFICATE OF SERVICE
I hereby certify that on September 18, 2017, I electronically transmitted the
foregoing document to the Clerk’s Office using the CM/ECF System for filing and
transmittal of a notice of electronic filing to the CM/ECF registrants.
/s/ Tracy Hobbs 4852-3388-9359
Case 2:16-cv-01065-DLR Document 352 Filed 09/18/17 Page 13 of 13
EXHIBIT A
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 1 of 32
UNITED STATES DISTRTCT COURT
DTSTRTCT OF ARÏZONA
Arízona Democrat.ic Part.Y,et âf. ,
)
)
)
)
)
)
)
)
)
)
cv- 1- 6 - 0 l- 06 5 - PHX-DLR
Plaintiffs,vs.
Michele Reagan, êL aI. ,
Defendants.
DEPOSTTTON OF SPENCER SCHARFF
(In his personal capacity and as a 30 (b) (6)
witness f or the Ari zor:'a Democratic Party)
June 6, 201-7Phoenix, ArizoÍ'La
9:30 a.m.
PREPARED FOR:
ATTORNEY AT LAW
(coPY)
REPORÎED BY:Mary Davis, RPRArízona CCR No . 5027]'
AZ Regístered Reporting Firm No. RL008
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 2 of 32
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them one at a time.
A. Their current roLes of the ADP or their
current roLes in life?
O. Their current rol-es personally.
A. .foel is a the executive director of AZAN.
O. What's AZAN?
A. The Ari zorra Advocacy Network.
O. OkaY.
A. I think Lhat's what it stands for, yeah.
O. Anna Chase?
A. I bel-ieve she's st,í]] an associate in a Law
firm in San Francisco.
O. The other two?
A. I do not know what Ameritha Nel-l-an is up to.
And the f ourth woul-d be she's an associate at a l-aw
firm in San Francisco.
O. On Line 26 of that document it reads rrThe
closing of those email- accounts resuLted in the
del-etion of the emails in the accounts, and Plaintíffs
have been unable to retrieve those email-s. "
Did I read that correctly?
A. You did.
O. Are you aware of any efforts personally that
were made to retrieve those e-maíls?
A. Am I personally aware?
6/6/2017 Spencer Scharff
orrMAR & AgsocrÀTEs 602-485-1488otfmaraggoc. com
t_09
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 3 of 32
6/6/20]-7 spencer Scharff
orrMAR & ASSOCTÀTES 602-485-L488ottmaraaEoc. com
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O. Correct.
A. No.
a. Turníng to the nexL page, Lop of page 3,
line 1 it reads "The ADP employee who closed these
email- accounts did so as part of the close-out
operations for the 201,6 campaign and believes he was
unaware of the 1ítigation hold. "
Did I read that correctlY?
A. Yes.
O. Were you a\^/are of a lit,igation hold ín this
matter whi1e you worked for the ADP?
A. I was not.
O. Did you have any understanding that e-mails
were to be preserved during the pendency of thís
1 ít igat ion?
A. Not that I recalL.
O. Do you know when this lítigation began?
A. Prior t.o Lhe general el-ection.
a. So you donrt have any personal- knowledge that
a litigation hold. was issued directing that e-mail-s be
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 4 of 32
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A. You did.
O. Does that remain your understanding?
A. That seems reasonabl-e, Yes.
O. And. when it says the deputies' practice was to
copy you on all important e-mails, whose definitíon of
il importanLrr is that?
A. I don't. know. Whose is it?
a.
you tel1
e -mail-s ?
you?
A.
Was it your d.ef inition of "importantrr? Díd
t.hem: I want to be copied on al-I important
or was it their discretion as to when to copy
The last week of el-ection, it was largely left
to their discretion.
But to be clear, I have a lot of confidence in
their discretion. These individuals, they're bright,
capable, thoughtful índividuaLs who, honestly, took a
lot of time to vol-unteer. And I remain extremely
appreciative of that time they gave.
O. Do you think that you woul-d have been copied'
on important. e-mail-s by Tom Reade?
A. I donrt know.
a. Did you ever give any direction to Tom Reade
to copy you on imPortant e-mails?
A. I would have asked Tom to include me on any
e-mail-s related to ínformation that was voter facing as
6/6/201,7 Spencer Scharff
orrMAR & ASSOCTATES 602-485-1488ottmaraaEoc. com
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Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 5 of 32
6/6/20L7 spencer Scharff
oTTMAR & ASSOCTATES 602-485-1488oÈtmarassoc. com
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I asked it was a general- bl-anket request amongst any
staffer or volunteer at the Party, the Arizona
Democratic Party, that they include me on any e-mails
that conLained information that were going to be sent
out or used t.o educate voters.
O. And. you described it a bit t'here at t,he end.
But when you Say trvoter facing," does that mean e-mails
that are going directlY to voters?
A. Yes. I wasnrL as precise as I should have
been with my language. Voter facing in that whatever
information was contaíned in an e-mail would have
eventually ended up being disseminated in some way
outside of the Part,Y to a voter.
a. So it may have started as an internal
communication, but eventually was intended to make its
v/ay to a voter outside the PartY?
A. And. to be cl-ear, not necessarily the e-mail,
but the language.
O. So some sorL of dírection to the vol-unteers as
to how to communicate with voters?
A. Exactly. Or something that included language
that. was going t.o be used in a social media post
rel-ated to vot.ing Procedures.
MS. AGNE: I'll have You mark another
exhibit, please.
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 6 of 32
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A. Never.
O. Was your direction to vol-unteer voter
protection deputies to ever remínd voters to vote a
cert.ain way?
A. Absol-utely not .
And to be cl-ear, in my rol-e as voter
protection director, I took the responsibility very
seriously. The one t.hing that I díd make clear and did
provide directions on t.o staff and volunteers, âs it
pertained to the mission of the voter protection
operation, was that \^/e were not concerned like the
campaigns were with whom who was the voter and who
they wanted to vote for, what party they were
affiliated with.
What we were concerned with was if someone
want.ed to vote, w€ were going to do what we could to
províde them with the information they needed to
exercise their franchise regardless of their party
affiliation, so that goes Lo voter registration. I
made cl-ear directions and reminded them not t.hat
they needed reminding, but I felt it, was important to
remind t,hem when doing voter registration, it doesn't
matter what the individual- registers for, that
registration form and that process and that education
provided to that voter should be the same regardless if
6/6/20L7 Spencer Scharff
orrMAR & ASSOCTATES 602-485-1488ottmarassoc. com
136
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 7 of 32
Spencer Scharff
orrrfÀR & ASSOCTATES 602-485-1488ottmaraEsoc. com
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they're checking an Ind.ependent , if they're checking
Republican, ot their checking Democrat because our goal
as the voter protection operation was to ensure that
anyone who wanted to vote coul-d vote.
O. Did LBJ maintain information on party
af f iliat.ion?
A. It did not, unless the voter provided it.
O. If the voter provided it, ít wouLd maintain
ir.A. Not necessarilY.
O. Would it maintain voters' addresses?
A. No. UnLess they províded it and it was
entered.
a. And vol-unteer voter protection deputíes wouLd
ent.er information into LBJ?
A. Yes.
O. Such as requests from voters?
A. PossíblY.
O. Requests for information or assistance?
A. Possibly, Yes.
O. Identifyíng characteristics?
A. Such as?
O. Just ín general?
A. I mean, I don't know what you mean by
" identifying characteristics . "
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 8 of 32
EXHIBIT B
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 9 of 32
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Daniel C. Barr (# 010149)Sarah R. Gonski (# 032567)PERKINS COIE LLP2901 North Central Avenue,Phoenix, Arizona 850 12-27 8
suite 20008
Teleohone:{ ..I,'acstmtle:
) 3s1648-
-8000
Marc E. Elias (WDC# 442007)*Bruce V. Spiva (WDC# 443754)*Elisabeth C. Froàt (WDC# 1007632)*Amanda R. Callais'(WDc# 1021944)*PERKINS COIE LLP700 Thirteenth Street NW, Suite 600
7000DB com
ie.com
w D.C.20005-3960654-6200
02) 6s 4-62t1com.com
com
B
Joshua L. Kaul (WI# 1067529)*PERKINS COIE LLPOne East Main Street, Suite 201Madison,'Wisconsin 53703Telephone: (608) 663-7 460Facsìmile: (608) 663-7 499JKaul @perkinscoie. com
Attorneys for Plaintffi*Admitted pro hac vice
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
ArizonaDemocratic PartY, et al.,
Plaintiffs,
V
Arizona Secretary of State's Office, et al.,
Defendants.
No. CV- 1 6-0 1065-PHX-DLR
PLAINTIFFS' RESPONSES ANDOBJECTIONS TOINTERVENORS' REQUESTSFOR PRODUCTION
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 10 of 32
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pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiffs the
Democratic National Committee ("DNC"), the DSCC, and the Arizona Democratic Parly
(,,ADp,,) (collectively, "Plaintiffs") provide the following written objections and responses
to Intervenor-Defendants' (o'Intervenors") Requests for Production served on February 9,
20t7.
PRELIMINARY STATEMENT
Discovery is ongoing, and Plaintiffs have not completed their investigations.
These objections and responses are based on the information and documents currently
available to Plaintiffs, and Plaintiffs reserve the right to alter, supplement, amend, or
otherwise modify these objections and responses in light of additional facts revealed
through subsequent inquirY.
Because Requests for Production 1, 2, and 4-10 are the same for each of the
plaintiffs, plaintiffs are responding and objecting jointly to those requests instead of
providing individual responses that would be duplicative of each other. Because Request
for production 3 to ADP is different from Request for Production 3 to the DNC and
DSCC, plaintiffs DNC and DSCC are responding and objecting jointly to their Request
for production 3, while Plaintiff ADP is responding and objecting to its Request for
Production 3; both of these responses and objections are included below.
As explained below, Plaintiffs, in response to most of the Requests for Production,
will produce responsive, non-privileged documents in their possession, custody, or control
that they are able to locate following a reasonable search. Plaintiffs note, however, that
although ADp had received a litigation hold in connection with this case, an ADP
employee, on November 30, 2016, closed numerous email addresses that were no longer
in use. While the vast majority of those accounts were highly unlikely to contain any
responsive documents, four of the closed email accounts were the accounts of volunteer
voter-protection deputies and would have contained responsive documents. The closing
of those email accounts resulted in the deletion of the emails in the accounts, and
Plaintiffs have been unable to retrieve those emails.
-2-
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 11 of 32
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The ADP employee who closed these email accounts did so as part of the close-out
of operations for the 2016 campaign and believes he was unaware of the litigation hold.
In addition, the four volunteer voter-protection deputies' email accounts were created less
than a month before the 2016 general election----one was created on October 10, two were
created on October 20, and one was created on October 2l-and those deputies worked
primarily at the direction of and in coordination with Spencer Scharff, ADP's Voter
Protection Director for the period leading up to the 2016 election. Plaintiffs will be
producing responsive, non-privileged documents from Mr. Scharff s ADP email account,
and Mr. Scharff believes that, until a week before the election, he would have been
included on all or most of the deputies' communications. Further, in the week before the
election, the deputies' practice was to copy Mr. Scharff on all important emails, which he
believes would have included any emails relating to out-of-precinct provisional voting or
ballot collection.
GENERAL OBJECTIONS
l. Nothing in these objections or responses can be taken as an admission that
plaintiffs agree with Intervenors' use or interpretation of terms. These objections and
responses are based on Plaintiffs'understanding of each individual request. To the extent
Intervenors assert an interpretation of any request that is inconsistent with Plaintiffs'
understanding, Plaintiffs reserve the right to supplement their objections and responses.
2. Plaintiffs object to Intervenors' requests to the extent that they purport to
impose obligations greater than those imposed by the applicable Federal Rules of Civil
procedure or the Local Rules of the United States District Court for the District of
Arizona.
3. Plaintiffs object to Intervenors' requests to the extent that they purport to
require Plaintiffs to search for and produce documents that are not in their possession,
custody, or control.
4. Plaintiffs object to the overly broad and unduly burdensome nature of
Intervenors' requests to the extent: (1) they seek information or documents obtainable
-3-
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 12 of 32
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doctrine, andlor constitutes trial preparation material within the meaning of Rule 26
andlor expert witness information that is not discoverable under Rule 26.
Subject to, expressly reserving, and without waiving these specifîc objections and
plaintiffs' General Objections above, Plaintiffs will produce any responsive, non-
privileged documents in their possession, custody, or control that they are able to locate
following a reasonable search.
Dated: March 13,2017 s/ Joshua L. Kaul
2901 North Central Avenue, Suite 2000Phoenix, Arizona 85012-2788
Marc E. Elias (WDC# 442007)*Bruce V. Spiva (WDC# 44375!): .
Elisabeth i. proàt (WDC# 1007632)*Amanda R. Callais'(WDc# 1021944)*PERKINS COIE LLP700 Thirteenth Street N.W., Suite 600Washington, D.C. 20005-3960
Joshua L. Kaul (WI# 1067529)*PERKINS COIE LLPOne East Main Street, Suite 201Madison, Wisconsin 53703
Attorneys for Plaintffi the ArizonaDemocratic Party, the DSCC, and the
Democratic National Committee
-t4-
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 13 of 32
E,XHIBIT C
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 14 of 32
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Daniel C. Barr (# 010149)Sarah R. Gonski (# 032567)PERKINS COIE LLP2901 North CentralPhoenix, Arizona I
Suite 20008
Avenue,s0t2-278
Marc E. Elias (WDC# 442007)*Bruce V. Spiva (WDC# 443754)*Elisabeth c. Froòt (wDC# 1007632)*Amanda R. Callais'(WDc# 1021944)*PERKINS COIE LLP
602
DB
700 ThirteenthD
T
Telenhone:Facslmile:
Teleohone:.l¡ .-
l'acstmtle:
) 3s 1-8000648-7000
comie.com
Street NW, Suite 600,c.20005-3960) 6s4-62006s4-6211)
BSpi.com
A kinscoie.com
Joshua L. Kaul (WI# 1067529)*PERKINS COIE LLPOne East Main Street, Suite 201Madison, Wisconsin 53703
) 663-7460663-7499
JKa com
Attorneys for Plaintffi*Admitted pro hac vice
Arizona Democrati c P arty, et al.,
Plaintiffs,
LTNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
V
Michele Reagan, et al.,
Defendants.
No. CV-l 6-0 1065-PIÐ(-DLR
PLAINTIF'F'S' RESPONSES ANDOBJECTIONS TO STATEDEFENDANTS' FIRST REQT]ESTF'OR PRODUCTION
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 15 of 32
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Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiffs the
Democratic National Committee ("DNC"), the DSCC, and the Arizona Democratic Party
("ADP") (collectively, "Plaintiffs") provide the following written objections and responses
to the State Defendants' ("Defendants") Requests for Production served on February 15,
20t7.
PRELIMINARY STATEMENT
Discovery is ongoing, and Plaintiffs have not completed their investigations.
These objections and responses are based on the information and documents currently
available to Plaintiffs, and Plaintiffs reserve the right to alter, supplement, amend, or
otherwise modify these objections and responses in light of additional facts revealed
through subsequent inquiry.
Plaintiffs also note that a number of responsive documents have already been filed
with the Court in this matter, and they are therefore equally available to Defendants and
Plaintifß. Plaintiffs do not intend to produce those documents that have already been
served on Defendants.
As explained below, Plaintiffs, in response to most of the Requests for Production,
have produced and will produce responsive, non-privileged documents in their possession,
custody, or control that they are able to locate following a reasonable search. Plaintiffs
note, however, that although ADP had received a litigation hold in connection with this
case, ADP, during the period from November 11,2016, to Decembet 7,2016, closed
numerous email addresses that had been but no longer were in use. While the vast
majority of those accounts were highly unlikely to contain any responsive documents,
there are fîve accounts that likely would have been searched for and would have contained
responsive documents: the accounts of four volunteer voter-protection deputies and the
account of the GOTV director. The closing of those email accounts resulted in the
-2-
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deletion of the emails in the accounts, and Plaintiffs have been unable to retrieve those
emails.l
The email accounts were closed as part of the close-out of operations for the 2016
campaign, and it is Plaintiffs' understanding that the individual who directed the closing
of the accounts was unaware of the litigation hold. In addition, the four volunteer voter-
protection deputies' email accounts were created less than a month before the 2016
general election-one was created on October 10, two were created on October 20, and
one was created on October 2l-and those deputies worked primarily at the direction of
and in coordination with Spencer Scharff, ADP's Voter Protection Director for the period
leading up to the 2016 election. Plaintiffs have produced and will be producing
responsive, non-privileged documents from Mr. Scharffs ADP email account, and Mr.
Scharff believes that, until a week before the election, he would have been included on all
or most of the deputies' communications. Further, in the week before the election, the
deputies' practice was to copy Mr. Scharff on all important emails, which he believes
would have included any emails relating to out-of-precinct provisional voting or ballot
collection. With respect to the account of the GOTV director, Plaintiffs note that he
worked for ADP from August2016 to November 2016. Moreover, decisions on issues
pertinent to this case would have been group decisions, and the GOTV director believes
that one or more individuals whose email accounts have been searched (e.g., Mr. Scharff)
would have been included on emails relating to such decisions.
GENERAL OBJECTIONS
1. Nothing in these objections or responses can be taken as an admission that
Plaintiffs agree with Defendants' use or interpretation of terms. These objections and
responses are based on Plaintifß' understanding of each individual request. To the extent
t Plaintiffs stated in their Responses and Objections to Intervenors' Reqgests^forProduction that an ADP employee closed email- accounts on November 30, 2016.Plaintiffs have determined tha^t aðcounts that had been but no longer were in use wereclosed on other dates within the above-referenced period as welf and that, while oneè¡¡óiov.. directed the closing of the accounts, the accounts were closed out by severaldifferdnt employees.
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extent it seeks information that is protected by the attorney-client privilege, the First
Amendment privilege, andlor the work-product doctrine, and/or constitutes trial
preparation material within the meaning of Rule 26 andlor expert witness information that
is not discoverable under Rule 26.
Subject to, expressly reserving, and without waiving these specific objections and
Plaintiffs' General Objections above, Plaintiffs will produce any responsive, non-
privileged documents in their possession, custody, or control that they are able to locate
following a reasonable search.
Dated: March 17,2017 s/ Joshua L. KaulDaniel C. Barr (# 010149)Sarah R. Gonski (# 032567)PERKINS COIE LLP2901 North Central Avenue, Suite 2000Phoenix, Arizona 85012-2788
Marc E. Elias (WDC# 442007)*Bruce V. Spiva (WDC# 443754)*Elisaberh i. rroit (wDC# 1007'632)*Amanda R. Callais'(WDc# 1021944)*PERKINS COIE LLP700 Thirteenth Street N.W., Suite 600Washington, D.C. 20005-3960
Joshua L. Kaul (WI# 1067529)*PERKINS COIE LLPOne East Main Street, Suite 201Madison, Wisconsin 53703
Attorneys for Plaintffi the ArizonaDemocratic Party, the DSCC, and the
Democratic National Committee
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EXHIBIT I)
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Daniel C. Barr (# 010149)Sarah R. Gonski (# 032567)PERKINS COIE LLP2901 North CentralPhoenix, Arizona 8TeleohoneFacsìmile:DB
70w
0 ThirteenthD
F
Avenue, Suite 20005012-2788
Marc E. Elias (WDC# 442007)*Bruce V. Spiva (WDC# 443754)*Elisabeth i. r'roàt (wDC# 1007632)*Amanda R. Callais'(WDc# 102t944)*PERKINS COIE LLP
-80007000
com.com
Street NW, Suite 600.c.20005-3960) 6s4-6200654-6211
MEliasB re.com
kinscoie.comA kinscoie.com
Joshua L. Kaul (WI# 1067529)*PERKINS COIE LLPOne East Main Street, Suite 201Madison, Wisconsin 53703Teleohone: (608) 663-7460Facsìmile: Gos)' 663 -7 499JKaul @perkinscoie. com
Attorneys þr Plaintffi
*Admitted pro hac vice
Arizona Democratic PartY, et al.,
Plaintiffs,
v
Michele Reagan, et al.,
Defendants.
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
No. CV-1 6-0 1065-PHX-DLR
PLAINTIF'F ARIZONADEMOCRATIC PARTY'SRESPONSES AND OBJECTIONSTO INTERVENOR.DEFENDANTS' FIRSTINTERROGATORIES TOPLAINTIFFS
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INTERROGATORY NO. 2: Were any other email accounts closed by ADP
during time periods relevant to this matter? If so, how many?
RESPONSE TO INTERROGATORY NO. 2: In addition to the general
objections set forth above, ADP objects to this interrogatory on the grounds that the
phrase ootime periods relevant to this matter" is vague. It also objects to this interrogatory
to the extent that it seeks information that falls within any relevant privilege including,
without limitation, the First Amendment privilege. Further, it objects to this interrogatory
to the extent that it seeks information that is not relevant to any party's claims or defenses
nor is reasonably likely to lead to such information and is not proportional to the needs of
the case.
Subject to, expressly reserving, and without waiving these general and specific
objections, ADP responds as follows. ADP is not aware of email accounts other than those
discussed in response to Interrogatory No. 1 and previously disclosed that were closed
during the time period from when this litigation was anticipated until the present. ADP
notes that one email account was closed within the timeframe described in Interrogatory
No. 1, reopened on January 16, 2017,and then closed againon January 17, 2017 .
INTERROGATORY NO. 3: Please identify (1) the ADP employee(s) that
directed the closing of each of the accounts, and (2) the ooseveral different" employees that
closed the accounts, as referenced in Plaintiffs' March 17, 2017, Responses and
Objections to the State Defendants' First Requests for Production.
RESPONSE TO INTERROGATO NO. 3: In addition to the general
objections set forth above, ADP objects to this interrogatory to the extent that it seeks
information that falls within any relevant privilege including, without limitation, the First
Amendment privilege, the attorney-client privilege, andlor the work-product doctrine.
Further, it objects to this interrogatory to the extent that it seeks information that is not
relevant to any party's claims or defenses nor is reasonably likely to lead to such
information.
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Subject to, expressly reserving, and without waiving these general and specific
objections, ADP responds as follows. As previously disclosed, Stan Williams directed the
closing of the five accounts that would have been searched for and likely would have
contained responsive documents. The accounts were closed by Daniel Hernandez. The
email addresses that would not have been searched that were closed during the time period
discussed in Interrogatory No. I were closed by: Stan Williams, Tom Reade, and Sam
Almy.
INTERROGATORY NO. 4: Please identify, by name and title, all remaining
persons associated with all of the remaining deleted email accounts, other than Joel
Edman, Anna Chase, Steve Micetic, Amrietha Nellan, and Tom Reade.
RESPONSE TO INTERROGATORY NO. 4. In addition to the general
objections set forth above, ADP objects to this interrogatory to the extent that it seeks
information that falls within any relevant privilege including, without limitation, the First
Amendment privilege. Further, it objects to this interrogatory to the extent it seeks
information that is not relevant to any party's claims or defenses nor is reasonably likely
to lead to such information.
Subject to, expressly reserving, and without waiving these general and specific
objections, as explained to Defendants previously, the individuals listed in Interrogatory
No. 4 are the individuals whose email accounts would have been searched for and likely
would have contained responsive documents. The other email accounts are not relevant
and would not have been searched because they primarily belonged to volunteers and
lower-level staff who did not have roles which would have generated or resulted in the
receipt of relevant or responsive emails that would not have been captured by the search
of other email accounts. ADP objects to providing additional information regarding other
closed email accounts on relevance grounds as well as under the First Amendment
privilege.
INTERROGATORY NO. 5: What steps did Plaintiffs take and what steps are
Plaintiffs taking to attempt to retrieve the deleted information and accounts?
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RESPONSE TO INTERROGATORY NO. 5: In addition to the general
objections set forth above, ADP objects to this interrogatory to the extent that it seeks
information that falls within any relevant privilege including, without limitation, the
attorney-client privilege, the work-product doctrine, and/or the First Amendment privilege.
Subject to, expressly reserving, and without waiving these general and specific
objections, ADP responds as follows. As previously disclosed, the ADP email accounts
that were closed were web-based Gmail accounts maintained by Google. In an attempt to
retrieve the information in the closed email accounts, ADP contacted Google to determine
whether the emails could be restored or retrieved. Google informed ADP that the emails
could not be restored or retrieved.
ADP is also attempting to obtain copies of any relevant emails andlor attachments
from the personal computers and phones of the fîve individuals whose closed ADP email
accounts would have been searched for and likely would have contained responsive
,documents. The five individuals in question did not use ADP devices while working
andlor volunteering for ADP. Rather, they used their personal devices and, as such, any
relevant documents are located on such devices and are not in the custody and control of
ADp. Nevertheless, ADP has collected all documents identified as potentially responsive
from three of these individuals, specifically, documents that these individuals downloaded
during their tenure volunteering for and/or working for ADP, and is in the process of
collecting documents from the remaining two individuals. ADP is reviewing these
materials and will produce any relevant, non-privileged documents collected from these
sources once that review is complete.
Additionally, as previously disclosed, counsel contacted experts in forensic
collection as well as counsel's internal e-discovery and IT department, which consulted
with additional experts in forensic collection. They communicated that forensic imaging
could capture some emails andlor attachments to emails but that it would do so only if
they were downloaded to the user's computer andlor phone. As discussed above, all five
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individuals have either provided arrdlor are in the process of providing ADP with any
documents that they downloaded. In no circumstance would forensic imaging capture
everything, and it is highly likely that in most circumstances it would capture very little
and rarely more than these individuals ate already providing voluntarily.
ADP is attempting to determine which, if any, of the five pertinent individuals are
willing to consent to having forensic imaging conducted on the device(s) that potentially
could contain emails andlor attachments from the closed ADP email accounts. At least
one individual has stated that he will not consent to forensic imaging due to the existence
of highly confidential materials related to his current job on both his laptop and phone.
Another individual has stated that she will not consent to forensic imaging of her phone
due to the existence of confîdential and privileged materials on her device from her
previous employment.
Beyond these efforts, all five individuals have been interviewed and have
confirmed that it is highly likely Spencer Scharff, ADP's Voter Protection Director for the
period leading up to the 2016 election, would have been copied on or would have been a
recipient or sender of all communications potentially responsive to this suit. Plaintiffs
have produced all responsive, non-privileged documents from Mr. Scharffs ADP email
account.
INTERROGAT oRY NO. 6: Please describe all conversations and
communications Plaintiffs had related to retrieving the deleted information and accounts.
RESPONSE TO INTERROGATORY NO. 6: In addition to the general
objections set forth above, ADP objects to this interrogatory to the extent that it seeks
information that falls within any relevant privilege including, without limitation, the First
Amendment privilege, the attorney-client privilege, and/or the work-product doctrine.
Subject to, expressly reserving, and without waiving these general and specific
objections, ADP refers ARP to its responses to Interrogatory No. 5.
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INTERROGATORY NO. 7: During the 2O-hour period when ballot collection was
legal between the time the Ninth Circuit Court of Appeals issued its order dated
November 4,20I6,until the U.S. Supreme Court issued its order dated November 5,2016,
who was the individual or individuals in charge of ballot collection efforts for the ADP?
RESPONSE TO INTERROGATORY NO. 7: The Ninth Circuit enjoined the
implementation of H.B. 2023 at approximately 12 p,m. on Friday, November 4,2016'
After the injunction was issued, ADP began working to create guidelines for field staff
and get-out-the-vote volunteers to follow when collecting ballots. Spencer Scharff was in
charge of this effort. All staff was alerted that, while they could collect ballots, there
would be no systematic collection of ballots until guidelines were in place so that ADP
could ensure that all ballots would be handled appropriately. ADP anticipated that it
would begin with full-scale collection on Saturday, November 5,2016, once its guidelines
were in place and staff and volunteers had been trained. On Saturday, November 5,2016,
at approximately I a.m., before such full-scale collection was able to begin, the United
States Supreme Court stayed the Ninth Circuit's injunction. ADP's understanding,
however, is that some of its volunteers and/or staff collected ballots in their individual
capacities.
Dated: l|r/;ay 19,2017
BarrSarah R. 7)PERKINS COIE2901 North Central Avenue, Suite 2000Phoenix, Arizona 85012-2788
Marc E. Elias (WDC# 442007)*Bruce V. Spiva fiVDC# 443754)*Elisabeth c. proèt (wDc# 1007632)*Amanda R. Callais'(WDc# 1021944)*PERKINS COIE LLP700 Thirteenth Street N.W., Suite 600Washington, D.C. 20005-3960
(# 032LLP
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E,XHIBIT E
Case 2:16-cv-01065-DLR Document 352-1 Filed 09/18/17 Page 26 of 32
