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7/31/2019 Homer Shred Decision

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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORK

ANNE POPE; WANDA WILLINGHAM;

SAMUEL J. COLEMAN; GERALDINE BELL;and LEE PINCKNEY, III; ,Plaintiffs,

v. No. 11-CV-736(LEK/DRH)

COUNTY OF ALBANY and ALBANYCOUNTY BOARD OF ELECTIONS,

Defendants.

APPEARANCES: OF COUNSEL:

GIBSON, DUNN & CRUTCHER LLP MITCHELL A. KARLAN, ESQ.Attorney for Plaintiffs CHRISTOPHER A. MULLER, ESQ.200 Park Avenue MOLLY M. CLAFLIN, ESQ.New York, New York 10166-0193 SAPNA DESAI, ESQ.

ARIC H. WU, ESQ.BRENDON SIPE FLEMING, ESQ.JEANA MARIE BISNAR MAUTE, ESQ.TERESA REIMERI KUNG, ESQ.

DerOHANNESIAN & DerOHANNESIAN PAUL DerOHANNESIAN II, ESQ.

Attorney for PlaintiffsSuite 202677 Broadway

Albany, New York 12207-2985

BURNS, BARBER & MURPHY, LLP PETER G. BARBER, ESQ.Attorney for Defendant County of Albany CATHERINE A. BARBER, ESQ.226 Great Oaks Boulevard

Albany, New York 12203

THOMAS MARCELLE, ESQ.

Attorney for Defendant Board of ElectionsAlbany County AttorneyDepartment of LawSuite 1010112 State Street

Albany, New York 12207

Case 1:11-cv-00736-LEK-DRH Document 157 Filed 07/31/12 Page 1 of 25


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DAVID R. HOMERU.S. MAGISTRATE JUDGE

MEMORANDUM-DECISION AND ORDER

Presently pending are the motions of plaintiffs Anne Pope, Janis Gonzalez, Wanda

Willingham, Samuel J. Coleman, Geraldine Bell, and Lee Pinckney, III (collectively

plaintiffs) for orders (1) imposing sanctions on defendants County of Albany and the

Albany County Board of Elections (collectively County) for discovery abuses (Dkt. No.

134), and (2) compelling Thomas Marcelle, Esq. (Marcelle), the attorney for the Board of

Elections in this action, to appear for an oral deposition (Dkt. No. 138). The County

opposes both motions. Dkt. Nos. 143, 144. For the reasons which follow, plaintiffs motions

are denied.

I. Background1

On May 23, 2011, the County Legislature passed Local Law C reapportioning the

thirty-nine legislative districts according to 2010 Census data and on June 5, 2011, the

County Executive signed it into law. Am. Compl. (Dkt. No. 100) at 18, 20. The

redistricting plan, as enacted, contained four districts containing a majority of minorities,

known as majority minority districts. Pope I at 1-2. Plaintiffs commenced this action on

June 29, 2011 alleging that the redistricting plan violated the Voting Rights Act of 1965, as

Plaintiffs previously moved for a preliminary injunction and that motion was denied1

in a decision filed August 18, 2011. Dkt. No. 76; see also Pope v. County of Albany, No.1:11-CV-736 (LEK/DRH), 2011 WL 3651114 (N.D.N.Y. Aug. 18, 2011) (Kahn, J.) (PopeI). That decision was affirmed by the Second Circuit Court of Appeals in a decision filedMay 29, 2012. See Pope v. County of Albany, F.3d , 2012 WL 1918523 (2d Cir. May29, 2012). Familiarity with those decisions is assumed.

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amended, 42 U.S.C. 1973, by failing to include a fifth majority minority district. Am.

Compl. at 80-88. Plaintiffs seek an order declaring the redistricting plan unlawful and

requiring the County to adopt a plan containing a fifth majority minority district. Id. at 16-17.

The County has answered, denying that its redistricting plan violated the Voting Rights Act

and opposing the relief sought by plaintiffs. Ans. (Dkt. No. 102).

Following an evidentiary hearing and decision on plaintiffs motion for a preliminary

injunction, the parties proceeded with discovery. See Dkt. No. 83 (Uniform Pretrial2

Scheduling Order filed September 16, 2011). With the extended period for discovery about

to end, plaintiffs brought these motions to resolve outstanding issues. See Dkt. No. 133

(extending discovery deadline to August 1, 2012 and granting plaintiffs leave to file the

instant motions pursuant to N.D.N.Y.L.R. 7.1(b)(2)).

II. Discovery Sanctions

Plaintiffs contend that the County failed to preserve and destroyed relevant evidence

in this case before it could be produced to plaintiffs. Dkt. No. 134. Plaintiffs seek an order

directing that (1) the County produce certain of its officials for oral deposition concerning

document destruction, (2) plaintiffs computer forensic expert examine the Countys

computer systems to determine if any unproduced documents can be retrieved, (3) the

County reimburse plaintiffs for all costs and fees incurred in connection with the document

destruction, and (4) plaintiffs are entitled to an adverse inference instruction at trial that the

destroyed documents would have been helpful to plaintiffs case and hurtful to the Countys

See note 1 supra.2

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technology (IT) department, to gather all documents and electronically stored information

(ESI) related to the redistricting plan. See Barber Aff. (Dkt. No. 144-1) at 11; Diegel Aff.

(Dkt. No. 144-5) at 2. This effort led to the production to plaintiffs of all documents and

ESI gathered in this process, including minutes, hearing transcripts, and reports, all data

used in preparing Local Law C, and two bound volumes of election results. See Defs.

Response to Pls. Request for Production of Documents (Dkt. No. 144-2) at 2-6.

Second, following the preliminary injunction hearing, the County responded to

plaintiffs subpoenas duces tecum to the thirty-nine County legislators and members of the

commission which drafted the redistricting plan. See Dkt. No. 136-25 at 1-124. The County

now asserts that after repeated contacts with County officials to obtain responsive

documents and ESI and without asserting objections to plaintiffs demands which they

contend could have been asserted, the County has now fully complied with its discovery

obligations to produce documents relevant to plaintiffs demands and that their responses

have included thousands of pages of documents dating back over three decades. Barber

Aff. at 27.

Plaintiffs contend, however, that notwithstanding such production, relevant

documents were destroyed by the County before production to plaintiffs which the County

should have taken steps to preserve. Plaintiffs contend that the Countys culpable state of

mind is demonstrated in several ways. First, plaintiffs contend principally that the absence

of a litigation hold demonstrates gross negligence and bad faith. Certainly, a formal written

litigation hold is the preferred and usual practice both to provide notice to recordholders and

to provide proof of preservation efforts. However, Chin has now resolved that the absence

of a formal litigation hold is only one factor to be considered in determining the sufficiency of

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document production.

Although no formal written litigation hold was instituted by the County here, the

undisputed record makes clear that the attorneys hired by the County to represent it in this

action communicated to affected County officials and employees the need to gather

documents and ESI to respond to plaintiffs discovery demands, the attorneys did so on

multiple occasions, county officials and employees provided documents and ESI for what

they deemed relevant documents, and the County repeated this process when plaintiffs

complained about document production or sought additional disclosures. See Barber Aff. at

11, 17 - 19; Marcelle Aff. (Dkt. No. 144-3) at 5; Diegel Aff. at 2. Plaintiffs also took

the oral depositions of those County officials and employees they sought for deposition.

See Marcelle Aff., Exs. A - D (transcripts of depositions of various County officials).

Therefore, while the County did not issue a formal written litigation hold, it took reasonable

steps when this action was commenced to preserve and gather documents and ESI to

respond to plaintiffs discovery demands.

Plaintiffs further contend that the then County Attorney, Eugenia Condon, Esq.,

demonstrated bad faith when she failed to direct a county-wide litigation hold at any point.

However, responsibility for representing the County in this action was quickly assigned to

outside counsel, who, as noted, contacted County officials and employees to preserve and

gather relevant documents and ESI. Whether the County Attorney or, as here, outside

counsel assumed responsibility for preservation and production of documents and ESI is

immaterial to the central issue of whether reasonable and appropriate steps were taken to

preserve and produce.

Plaintiffs also contend that bad faith was demonstrated when Thomas Scarff,

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Secretary of the Countys Redistricting Commission, destroyed his written notes of public

meetings after the notes were used to prepare minutes of those meetings. The notes

apparently contained a list of those members of the Commission in attendance, a summary

of any public comments, and the names, if provided, of speakers. Certain meetings were

videotaped and transcribed. See Barber Aff. at 4. The minutes were made publicly

available on the Commissions website.

In these circumstances, it is difficult to discern a culpable state of mind in the

destruction of Scarffs notes. No credible motive appears from the record for their

destruction, particularly where there existed minutes prepared from the notes, where others

both from the County and the public were present at the meetings and could testify about

them, and where certain of the meetings were videotaped and transcribed. In the absence

of a demonstrable bad motive and where discovery concerning all aspects of the meetings

was available from witnesses and other documents and things, the destruction of Scarffs

notes affords no basis for finding a culpable state of mind. See S.C. Johnson & Son, Inc. v.

Louisville & Nashville R.R. Co., Inc., 695 F.2d 253, 259 (7 Cir. 1982); Marlow v.th

Chesterfield County Sch. Bd., No. 3:10CV18-DWD, 2010 WL 4393909, at *3 (E.D. Va. Oct.

28, 2010); Field Day, LLC v. County of Suffolk, No. 04-2202, 2010 WL 1286622, at *8

(E.D.N.Y. Mar. 25, 2010); Hamilton v. Mt. Sinai Hosp., 528 F. Supp. 2d431, 444 (S.D.N.Y.

2007); Anderson v. Sothebys Inc. Severance Plan, No. o4 Civ. 8180, 2005 WL 2583715, at

*4-5 (S.D.N.Y. June 13, 2005).

Plaintiffs also cite Frank Commisso, the Legislatures Majority Leader, as destroying

documents. See Pls. Mem. of Law at 6. However, it appears from the record that

Commisso only discarded handouts concerning the redistricting plan given to all legislators

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at Legislature meetings after the plan was passed. Commisso Dep. Tr. (Dkt. No. 144-4) at

27, 30, 32). Copies of the handouts were produced to plaintiffs. Defs. Mem. of Law at 11.

Such destruction affords no evidence of a culpable state of mind.

Finally, plaintiffs contend that the County Executives Office destroyed documents

which should have been preserved for use in this action. Pls. Mem. of Law at 9-11.

Plaintiffs assert that on December 17, 2011, after this action was commenced and two

weeks before a new County Executive took office, the outgoing County Executive held a

shredding party which destroyed documents relevant to this action. Id. at 9 (citing

newspaper reports). A record of the categories of documents destroyed was filed. See Dkt

No. 136-33. There is no indication from the record of the destruction or from any other

source that any document destroyed related in any way to the redistricting plan. See id.

(listing records destroyed as, for example, personnel files, copys [sic] of resumes,

personnel records, litigation copies, and correspondence). Further, it appears that

whatever documents were possessed by the County Executives Office were copies of

documents originating elsewhere and that all such documents were provided in discovery

from the originating source. Defs. Mem. of Law at 13-14.4

Accordingly, while no formal written litigation hold was instituted by the County and

while documents were destroyed, the record on this motion amply refutes plaintiffs

contention that any such documents were destroyed with a culpable state of mind. See

Chin, 2012 WL 2760776, at *21. Therefore, plaintiffs have failed to meet their burden of

Although the County Executive signed the redistricting plan into law, the passage4

of that law was a function of the County Legislature. The absence of original documentsin the County Executives Office would, thus, not appear unusual.

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proof on this element of their motion and the motion is denied.

B. Relevance of Destroyed Evidence

Since Chin has obviated the argument that the failure to institute a written litigation

hold compels a finding of gross negligence in the destruction of any documents and a

presumption of the relevance of those documents, plaintiffs also bear the burden of

demonstrating that any documents destroyed were relevant to matters at issue in this

action. Plaintiffs assert that the documents destroyed by the County were relevant to a

reconstruction of the Redistricting Commissions actions, the consideration given to creating

a fifth majority minority district, and the consideration given to the views of the public. Pls.

Mem. of Law at 21-23. The County denies that any destroyed documents were relevant to

any matters at issue in this case.

As to Scarffs notes of meetings, plaintiffs speculate that those notes would have

addressed most directly how the Redistricting Commission arrived at its proposed plan.

First, however, there exist the minutes of those meetings prepared by Scarff which he

asserts incorporated his notes. Second, certain of those meetings were videotaped and

transcribed. Third, Scarff and other members were subject to discovery and available as

sources of information on these matters. Thus, Scarffs notes here were cumulative of

other available discovery information and plaintiffs have failed to demonstrate any material

information denied to them by destruction of the notes.

As to Commissos records, as noted, the record reflects that the documents he

destroyed were provided to plaintiffs from other sources since they consisted solely of

handouts given to all other legislators. Similarly, the documents destroyed by the County

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renewed their motion for an order compelling Marcelle to appear for an oral deposition. Dkt.

No. 138, 139, 147. The County opposes the motion. Dkt. No. 143.

The deposition of an attorney appearing in a case burdens the adversary process

and is disfavored. See In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70-71 (2d

Cir. 2003). While a lawyer is not insulated from an oral deposition by virtue of his or her

status as a lawyer in a case, concerns for the burdens attending such depositions mandate

a heightened but flexible approach when the deposition of an attorney is sought. Id. at 71.

Thus, where a lawyer deposition is sought, the court must

takes into consideration all of the relevant facts andcircumstances to determine whether the proposed depositionwould entail an inappropriate burden or hardship. Suchconsiderations may include the need to depose the lawyer, thelawyer's role in connection with the matter on which discovery issought and in relation to the pending litigation, the risk ofencountering privilege and work-product issues, and the extentof discovery already conducted.

Id. (emphasis added); see also In re Chevron Corp., 749 F. Supp. 2d 141, 162 (S.D.N.Y.

2010); Tailored Lighting, Inc. v. Osram Sylvania Prods., Inc., 255 F.R.D. 340, 344

(W.D.N.Y. 2009); Tow Intl, Inc. v. Pontin, 246 F.R.D. 421, 424-25 (E.D.N.Y. 2007).

A. Need for Depositionand Marcelles Role

Plaintiffs assert that they need to depose Marcelle regarding (1) his participation in

and knowledge of the activities of the Redistricting Commission leading to the enactment of

the redistricting plan, and (2) his communications with the Countys two expert witnesses in

this action in their preparation of expert witness reports.

As to the Redistricting Commission, it appears undisputed that Marcelle played a

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central role in advising the Commission. Marcelle had been intimately involved in litigation

regarding the Countys redistricting plan after the 2000 Census and was designated to6

assist the Commission in its efforts. Marcelle thus possesses knowledge of the

Commissions consideration of a fifth majority minority district, its consideration of the views

of opinions offered by the public, the assumptions underlying the plan adopted by the

Commission, and all other matters related to the Commissions activities. McCoy Dep. Tr.

(Dkt. No. 14-3) at 3-4, 78; Benedict Dep. Tr. (Dkt. No. 140-4) at 3-4; Morse Dep. Tr. (Dkt.

No. 140-5) at 6-12; Merrill Dep. Tr. (Dkt. No. 140-6) at 915. Marcelles central and active

role in the activities of the Commission make his testimony relevant and, therefore,

necessary.

As to the expert witnesses, the County has offered the opinion testimony of two

experts in this action. John E. Merrill, who prepared the plan eventually adopted by the

Redistricting Commission and enacted into law, has been identified by the County as its

expert witness on the redistricting plan. In preparing his expert witness report, as with the

preparation of the plan itself, Merrill communicated with Marcelle on significant issues.

Merrill Report (Dkt. No. 140-16); Merrill Dep. Tr. at 9-15. This included receiving direction

from Marcelle on significant issues such as the definition of minority and the percentage of

minorities residing in a legislative district sufficient to constitute a majority. As to the

definition issue, it was necessary to determine for the plan, for example, whether minority

included only those who self-identified only as black or whether the definition included those

who identified themselves in multiple categories, such as black and white or black and

See, e.g., Arbor Hill concerned Citizens Neighborhood Assn v. County of Albany,6

281 F. Supp. 2d 436 (N.D.N.Y. 2003).

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Hispanic. Merrill was directed by Marcelle to utilize the single-race definition for minority.

Id. at 9. Marcelle also instructed Merrill to use 55% as the minimum percentage of a

minority group residing in a majority minority district sufficient to insure proper

representation. Id. The County also submitted an expert witness opinion from Dr. Ronald

Keith Gaddie to the effect that the redistricting plan did not dilute the minority vote within the

meaning of the Voting Rights Act. Gaddie Dep. Tr. (Dkt. No. 140-17). Marcelle directed

Gaddie to research certain past elections in preparing his report. Id. at 5-11.

Thus, the record demonstrates that Marcelle was significantly involved with both

Merrill and Dr. Gaddie in their preparations of expert witness reports and opinions, including

dictating critical assumptions underlying those opinions and directing them to particular data

to consider. This involvement makes Marcelles testimony as to these witnesses relevant

and, therefore, necessary.

B. Risk of Privilege and Work-Product Issues

Plaintiffs contend that Marcelles communications with the Redistricting Commission

and the County Legislature before the plan was enacted were not protected by any privilege

because no attorney-client relationship existed between Marcelle and any of the involved

individuals at that time. Pls. Mem. of Law at 15-18; Pls. Reply Mem. of Law at 3-7.

Plaintiffs contend that Marcelles communications with Merrill and Gaddie are also not

protected because communications to expert witnesses concerning the subject matter of

their opinions must be disclosed to the other parties. Pls. Mem. of Law at 14-15. The

County opposes both contentions. Defs. Mem. of Law (Dkt. No. 143) at3-6.

The attorney-client privilege protects confidential communications between client

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and counsel made for the purpose of obtaining or providing legal assistance. In re County

of Erie, 473 F.3d 413, 418 (2d Cir. 2007) (citing United States v. Const. Prod. Research,

Inc., 73 F.3d 464, 473 (2d Cir. 1996)). The work product doctrine protects an attorney's

mental impressions, opinions or legal theories concerning specific litigation from disclosure.

Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 12 (2d Cir. 1989) (internal quotation marks

and citations omitted). Both privileges require the existence of an attorney-client

relationship and the County, as the party asserting the existence of an attorney-client

relationship, bears the burden of demonstrating its existence. See United States v. Int'l

Brotherhood of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997). Such protections serve to

encourage attorneys and their clients to communicate fully and frankly and thereby to

promote broader public interests in the observance of law and administration of justice.

County of Erie, 473 F.3d at 418 (internal quotation marks omitted) (quoting Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981)).

Where, as here, a civil suit is brought between private litigants and government

agencies, the attorney-client privilege protects most confidential communications between

government counsel and their clients that are made for the purpose of obtaining or providing

legal assistance. County of Erie, 473 F.3d at 418. In such circumstances, the client may

be a public officer or entity. Id. As the Second Circuit has previously stated:

We believe that, if anything, the traditional rationale for the[attorney-client] privilege applies with special force in thegovernment context. It is crucial that government officials, whoare expected to uphold and execute the law and who may facecriminal prosecution for failing to do so, be encouraged to seekout and receive fully informed legal advice. Upholding theprivilege furthers a culture in which consultation with governmentlawyers is accepted as a normal, desirable, and evenindispensable part of conducting public business. Abrogating the

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privilege undermines that culture and thereby impairs the publicinterest.

In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005).

Here, as to Marcelles communications with members of the Redistricting

Commission and the Legislature prior to enactment of the redistricting plan, plaintiffs assert

that while Marcelle was counsel to the Republican minority in the Legislature, he had no

formalized relationship with the Commission or Legislature that would protect his

communications with them about the redistricting plan. Plaintiffs point to the absence of

any formal retainer agreement, separate compensation, or other written record of an

attorney-client relationship. It appears from the record that at all relevant times, Marcelle

was employed as Minority Counsel for the Legislature. The Redistricting Commission was

formed by the Legislature as a bipartisan group to propose the redistricting plan to conform

to the 2010 Census. Marcelle had participated in the litigation following enactment of the

redistricting plan after the 2000 Census and was asked or assigned by the Legislature to

work with the Commission. For at least three reasons, the County has satisfied its burden

of demonstrating that an attorney-client relationship existed between Marcelle and the

Commission and Legislature members with whom he worked on the redistricting plan.

First, Marcelle was employed as an attorney for the Legislature and was designated

to work with the Redistricting Commission. This designation was not attended by the

formalities characteristic of attorney hiring in the private sector, such as retainer

agreements, specified compensation, description of legal work to be performed, and the

like. As with the employment of many government attorneys, Marcelles work for his

employing entity, the Legislature, required him to receive information and convey legal

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advice to Legislature members and employees in a variety of circumstances, including

those arising with subordinate entities such as the Redistricting Commission. Thus, the

absence of a retainer agreement, separate compensation, or other such indicia of private

sector attorney-client relationships does not obviate the fact here that Marcelle functioned

as a lawyer for the Legislature and its Redistricting Commission in developing the

redistricting plan.

Second, the determination of the existence of an attorney-client relationship must

consider the nature of the communications at issue. Fundamentally, legal advice involves

the interpretation and application of legal principles to guide future conduct or to assess

past conduct. County of Erie, 473 F.3d at 419.

The modern lawyer almost invariably advises his client upon notonly what is permissible but also what is desirable. And it is inthe ... public interest that the lawyer should regard himself asmore than [a] predicter of legal consequences. His duty tosociety as well as to his client involves many relevant social,economic, political and philosophical considerations. And theprivilege of nondisclosure is not lost merely because relevantnonlegal considerations are expressly stated in a communicationwhich also includes legal advice.

United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 359 (D .Mass. 1950) (quoted

with approval in County of Erie, 473 F.3d at 420). The communications at issue here fall

well within the scope of legal advice given the nature of the redistricting plan undertaking.

Third, Marcelle was understood by those involved in the Legislatures redistricting

process to be functioning as an attorney. Plaintiffs cite to portions of depositions of

Legislature members and employees to support its contention that many did not view

Marcelle as an attorney for developing a redistricting plan. Pls. Mem. of Law at 8, 16.

These questions and answers from depositions, taken out of context and in isolation, are

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refuted by other sections of the depositions in which the Legislature members and

employees declare their understanding that Marcelle was functioning as the attorney in the

Legislatures redistricting process. See McCoy Dep. Tr. at 3-4; (Q. Did you have any

understanding of what was involved in the 2003 lawsuit? A. No. Thats why I brought on

Tom Marcelle . . .); Morse Dep. Tr. at 6 (Q. Okay. When? A. Well, Tom, the reason he was

on the commission because he had a vast knowledge of the lawsuit. Thats why we put him

there.)]; Benedict Dep. Tr. at 6 (Q. And who appointed Mr. Marcelle to be the attorney for

the Redistricting Commission? A. To the best of my knowledge, Chairman McCoy and

Chairman Morse. . . . Q. Was he the attorney for someone else during that time period? A.

For are you referring to the Redistricting Committee? Q. Yes. You said that he was the

attorney for the Redistricting Commission? A. He was.); see also Breslin Dep. Tr. (Dkt. No.

14-11) at 3 (testimony of then County Executive that Marcelle was a lawyer, who at that

point was the counsel to the redistricting commission I believe as well as the counsel to the

Republican minority and Q. So, your understanding was that on June 2nd 2011, Mr.

Marcelle represented the Republican minority in the legislature? A. And I think he

represented the legislature in respect to the legislative redistricting commission.).

Thus, the record amply demonstrates that during the redistricting process leading to

enactment of the Countys plan, an attorney-client relationship existed between Marcelle

and those from the Legislature involved in that process. Given the frequency, importance,

and nature of the communications between Marcelle and those involved in the redistricting

process for the Legislature, the risk that those communications will implicate the attorney-

client privilege and the work product doctrine is substantial.

As to Marcelles communications with Merrill and Gaddie in this action, plaintiffs

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correctly assert, and the County does not dispute, that communications between Marcelle,

as an attorney for the County in this action, and the countys expert witnesses are not

protected from disclosure. Pls. Mem. of Law at 14-15; Defs. Mem. of Law at 9. The scope

of the protection afforded to such communications is defined in Fed. R. Civ. P. 26(b)(4)(C),

which provides:

Rules 26(b)(3)(A) and (B) protect communications between thepartys attorney and any witness required to provide a reportunder Rule 26(a)(2)(B), regardless of the form of thecommunications, except to the extent that the communications:

(i) relate to compensation for the experts study or

testimony;

(ii) identify facts or data that the partys attorney providedand that the expert considered in forming the opinions tobe expressed; or

(iii) identify assumptions that the partys attorney providedand that the expert relied on in forming the opinions to beexpressed.

Thus, plaintiffs are entitled under this rule to question Merrill and Gaddie about their

communications with Marcelle which fall in these categories and have done so without

objection. See Pls. Mem. of Law at 9 (acknowledging that Merrill disclosed at his deposition

the assumptions and methodologies provided by Marcelle and that Dr. Gaddie

acknowledged at his deposition receiving direction from Marcelle on data he should

consider).

However, plaintiffs assert a need to depose Marcelle regarding why he gave such

assumptions and directions to Merrill and Gaddie. See Pls. Mem. of Law at 14-15 (Indeed,

to the extent these experts are merely parroting Marcelles opinions rather than formulating

their own, it is Marcelle who should be considered the Rule 26 expert in this action, and his

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qualifications, data and methodologies, should be assessed according to the standards

applicable to such experts.). Given this, there exists a substantial risk that a deposition of

Marcelle will implicate issues of attorney-client privilege and work product doctrine where

plaintiffs intend to inquire into those with whom Marcelle communicated in developing the

assumptions he communicated to Merrill and the data to which he directed Dr. Gaddie.

More significantly, it also likely would implicate Marcelles thought processes in developing

those assumptions and data.

D. Discovery Already Conducted

Wide-ranging discovery has already been completed. Plaintiffs have obtained

voluminous documents and have deposed numerous witnesses, including the County

Executive, the Deputy County Executive, the County Attorney, the majority and minority

leaders of the Legislature and other members involved in the redistricting process,

Legislature staff, and the Countys two expert witnesses. See, e.g., Karlan Decl. (Dkt. No.

140) (listing certain of the depositions taken by plaintiffs). As to the attorney-client privilege,

it thus appears that plaintiffs have deposed, or could have deposed, all who had any

communications with Marcelle which might be at issue in this action. As to the work product

doctrine, plaintiffs have made no challenge to the undersigned concerning any claim of

privilege asserted by the County and the record fails to indicate any document withheld from

plaintiffs by a claim under that doctrine. Thus, other than Marcelles thought processes

underlying the assumptions employed in the redistricting plan and by Merrill and the

reasons for directions Marcelle gave others at different times, the discovery in this action

appears to have been thorough and complete, and Marcelles testimony on those

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communications would be cumulative.7

E. Consideration of Factors

As to Marcelles involvement in events leading to the enactment of the redistricting

plan, there is no question that given his active role, Marcelle possesses relevant evidence

concerning the development and enactment of that plan. His communications with County

legislators and employees in this process are likely to raise significant issues of the

attorney-client privilege and, given plaintiffs principal desire in deposing Marcelle to probe

his thought processes in the creation of the redistricting plan, such inquiries are also likely to

raise significant issues regarding the Countys work product privilege. Moreover, it appears

that virtually everyone of significance who was involved in creating the redistricting plan with

Marcelle has now been deposed and, other than Marcelles thought processes, there

appears no subject matter for the deposition of Marcelle which has not been addressed with

other County witnesses and multiple times.

As to Marcelles communications and interactions with Merrill and Dr. Gaddie, it

appears here as well that Marcelle assumed an active and central role in providing both

expert witnesses with information and assumptions in the preparation of their expert reports

Marcelle thus possesses relevant information in that respect. Marcelles communications

with Merrill and Dr. Gaddie are unlikely to raise any significant issues implicating the

attorney-client privilege since those communications which are material should already have

been disclosed by Merrill and Dr. Gaddie in accordance with Rule 26(b)(4)(C). However,

Plaintiffs also enjoyed the discovery benefits of the evidentiary hearing held at the7

outset of this action on their motion for a preliminary injunction.

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Marcelles thought processes underlying his communications to Merrill and Dr. Gaddie, the

central motivation for plaintiffs motion here, would likely raise significant issues under the

work product doctrine.

In weighing these factors, it thus appears as to Marcelles involvement in both the

proceedings leading to the enactment of the redistricting plan and his interactions with

Merrill and Dr. Gaddie, Marcelles communications with others have been thoroughly

explored by plaintiffs with others involved in those communications and that no need exists

to determine from yet another witness, Marcelle, what was said in these communications.

Were the content of these communications the only issue for Marcelles deposition, then,

the answer appears self-evident that marcelles testimony would be superfluous and

cumulative of other witnesses and should not be compelled. However, it is not Marcelles

actions or communications in developing the redistricting plan or directing the preparation of

the reports by Merrill and Dr. Gaddie which plaintiffs seek here but Marcelles thoughts and

intentions as he engaged in those actions. See, e.g., Pls. Mem. of Law at 15 (arguing that

given the extent and nature of Marcelles interactions with Merrill and Dr. Gaddie, Marcelle

should be subject to an examination as would any other expert witness).

This contention that Marcelle should be subject to examination concerning thought

processes, methodologies, assumptions, qualifications, data considered, and the like fail for

at least two reasons. First, plaintiffs have had unfettered discovery from both those

involved in the development and enactment of the redistricting plan as well as Merrill and

Dr. Gaddie as to what considerations and assumptions they made in their experts opinions.

Why they considered certain factors and made certain assumptions may or may not be

relevant in weighing their testimony, but the factors considered and assumptions made by

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Marcelle as their counsel, and the reasons therefor, are not. If those factors and

assumptions are established by the evidence in the case, then they may be credited by the

fact-finder and given such weight as the fact-finder concludes is deserved. If not, then the

weight and probative value of such evidence may be diminished or even precluded. See,

e.g., Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1123-24 (5th Cir. 1988)

(court within discretion excluding expert's testimony where expert never examined plaintiff

but relied on other expert's examinations and such testimony as to cause of death was

pure speculation); ,Berk v. St. Vincent's Hosp. and Medical Center, 380 F. Supp. 2d 334,

353 ( S.D.N.Y. 2005) (holding that experts opinion may be excluded at trial if the

assumptions for that opinion are not supported by the evidence).

Second, Marcelles roles in the redistricting plan and preparation of the experts

opinions have already been discovered and do not appear to be in dispute. Why Marcelle

took certain actions or made certain statements would invade matters protected by the work

product doctrine. See Fed. R. Civ. P. 26 advisory committee notes to 2010 amendments

(explaining that Rule 26(b)(4)(C) is designed to protect counsel's work product and ensure

that lawyers may interact with retained experts without fear of exposing those

communications to searching discovery.); see also In re Prods. Liability Litig. (No. VI), No.

MDL 875, 2011 WL 6181334, at *6 (E.D. Pa. Dec. 13, 2011) (holding that discovery of

communications between attorney and expert witness is limited to facts or data or

assumptions that the party's attorney provided and on which the expert relied in forming his

or her opinion). The fact that the County may have incorporated certain of Marcelles

assumptions in its redistricting plan and that Merrill and Dr. Gaddie may have done likewise

in rendering their opinions may afford a basis for plaintiffs to impeach the plan and opinions

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but it does not afford a basis for deposing Marcelle about the reasons for his assumptions

or directions any more than it would afford a basis for deposing those upon whom Marcelle

may have relied in forming those assumptions. It is the thought processes and

methodologies of those who enacted the plan and rendered expert opinions that are at

issue, not the processes of those upon whom such witnesses chose to rely .

Thus, in weighing these factors, the Court finds that the fact that the matters about

which plaintiffs seek to depose Marcelle are largely protected from disclosure by the work

product doctrine, the factual matters about which Marcelle could testify have already been

the subject of discovery from numerous other witnesses, and Marcelles thought processes

in the counsel and direction he provided to those involved in preparing the redistricting plan

and preparing expert opinions is likely irrelevant to and of little or no probative value on the

issue of the weight to be accorded the testimony of witnesses directly involved in the

redistricting process and the experts. From these findings, the conclusion is compelled that

plaintiffs motion to compel the deposition of Marcelle must be denied.

IV. Conclusion

For the reasons stated above, it is hereby

ORDERED that:

1. Plaintiffs motion for sanctions (Dkt. No. 134) is DENIED in all respects;

2. Plaintiffs motion for an order compelling Thomas Marcelle, Esq. to appear

for an oral deposition (Dkt. No. 138) is DENIED in all respects; and

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