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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

ANNE POPE; WANDA WILLINGHAM; SAMUEL J. COLEMAN; GERALDINE BELL; and LEE PINCKNEY, III; , Plaintiffs, v. COUNTY OF ALBANY and ALBANY COUNTY BOARD OF ELECTIONS, Defendants.

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

APPEARANCES: GIBSON, DUNN & CRUTCHER LLP Attorney for Plaintiffs 200 Park Avenue New York, New York 10166-0193

OF COUNSEL: MITCHELL A. KARLAN, ESQ. CHRISTOPHER A. MULLER, ESQ. MOLLY M. CLAFLIN, ESQ. SAPNA DESAI, ESQ. ARIC H. WU, ESQ. BRENDON SIPE FLEMING, ESQ. JEANA MARIE BISNAR MAUTE, ESQ. TERESA REIMERI KUNG, ESQ. PAUL DerOHANNESIAN II, ESQ.

DerOHANNESIAN & DerOHANNESIAN Attorney for Plaintiffs Suite 202 677 Broadway Albany, New York 12207-2985 BURNS, BARBER & MURPHY, LLP Attorney for Defendant County of Albany 226 Great Oaks Boulevard Albany, New York 12203 THOMAS MARCELLE, ESQ. Attorney for Defendant Board of Elections Albany County Attorney Department of Law Suite 1010 112 State Street Albany, New York 12207

PETER G. BARBER, ESQ. CATHERINE A. BARBER, ESQ.

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DAVID R. HOMER U.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 denied 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.) (Pope I). That decision was affirmed by the Second Circuit Court of Appeals in a decision filed May 29, 2012. See Pope v. County of Albany, F.3d , 2012 WL 1918523 (2d Cir. May 29, 2012). Familiarity with those decisions is assumed. 2

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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,2 the parties proceeded with discovery. See Dkt. No. 83 (Uniform Pretrial 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. 3

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on the issue of whether the County adequately addressed minority concerns in its redistricting plan. Pls. Mem. of Law (dkt. No. 135) at 1-2. To establish their entitlement to such relief, plaintiffs must demonstrate 1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense . Chin v. Port Auth. of N.Y. & N.J., F.3d , 2012 WL 2760776, at *20 (2d Cir. July 10,

2012) (internal quotation marks omitted) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)). The County does not dispute that it was obliged to preserve documents relevant to this action but denies either that any documents were destroyed with a culpable state of mind or that any relevant documents were destroyed.

A. Culpable State of Mind Plaintiffs contend that because the County failed to institute a formal litigation hold at an appropriate time, such failure constitutes gross negligence as a matter of law. See Pls. Reply Mem. of Law (Dkt. No. 148) at 3; see also Pls. Mem. of Law at 18-19 (quoting Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 473 (S.D.N.Y. 2010). However, the Second Circuit recently rejected this argument. In Chin, one of the plaintiffs alleging discrimination in promotions sought sanctions against his former employer for failing to issue a formal litigation hold to preserve promotion folders until over one year after the law suit was commenced. 2012 WL 2760776, at *21. The 4

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district court denied sanctions and the employee appealed. Id. On appeal, the Second Circuit affirmed the denial of sanctions as follows: We reject the notion that a failure to institute a litigation hold constitutes gross negligence per se. Contra Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 46465 (S.D.N.Y. 2010). Rather, we agree that the better approach is to consider [the failure to adopt good preservation practices] as one factor in the determination of whether discovery sanctions should issue. . . . Even if we assume arguendo both that the Port Authority was grossly negligent and that the documents here were relevant, we have repeatedly held that a case-by-case approach to the failure to produce relevant evidence, at the discretion of the district court, is appropriate. . . . Id. (internal quotation marks and citations omitted). Thus, the fact alone that the County failed to institute a formal litigation hold does not suffice to meet plaintiffs burden of demonstrating that the County acted with a culpable state of mind when it destroyed documents.3 Rather, the absence of a formal litigation hold is but one factor to be considered in determining whether the County acted with the requisite state of mind. Here, the record establishes first that during the period after this action was commenced on June 29, 2011 and the evidentiary hearing on plaintiffs motion for a preliminary injunction on August 3, 2011, limited discovery was granted and the County contacted the heads of County departments and agencies, including its information

Plaintiffs also contend that New York law required the county to preserve documents. See Pls. Mem. of Law at 15-16. The County denies that it violated any such obligation. Defs. Mem. of Law at 13-14. The applicability of state law is immaterial here. First, there is no dispute that the County was obliged to preserve relevant documents for use in this action. A separate obligation to do so under state law neither increased nor diminished that obligation. Second, remedies for any violations of state law lie under the remedial procedures of those laws, not in this action. Accordingly, the applicability of state law on this motion need not be addressed. 5

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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 6

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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, 7

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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 (7th Cir. 1982); Marlow v. 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 8

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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 passage of that law was a function of the County Legislature. The absence of original documents in the County Executives Office would, thus, not appear unusual. 9

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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 10

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Executives Office contained no demonstrably relevant information not provided to plaintiffs from originating sources. In light of these facts and that plaintiffs were able to take the oral depositions of individuals involved in creating, receiving, and destroying these documents, the absence of any proof, or any factual basis for a reasonable inference, that any destroyed documents contained relevant information compels the conclusion that they did not. Thus, plaintiffs have offered no basis for concluding that any destroyed document was relevant to any matter at issue in this case beyond mere speculation and conjecture. Accordingly, in the alternative, plaintiffs motion for sanctions is denied on this ground as well.

III. Deposition of Marcelle Marcelle, counsel of record in this action for the County Board of Elections, served at all times material herein as Minority Counsel for the Albany County Legislature.5 In that position, he actively participated in the efforts of the bipartisan Redistricting Commission to develop the redistricting plan eventually enacted. Plaintiffs subpoenaed Marcelle to take his oral deposition concerning his knowledge of proceedings leading to the enactment of the redistricting plan and the advice and direction he provided the Countys two expert witnesses in this action. The County declined to obey the subpoena, plaintiffs moved to compel compliance, and the court directed that the matter be deferred until the end of discovery. With the deadline for completion of discovery approaching, plaintiffs have now
5

Marcelle has since been appointed the Albany County Attorney. Marcelle Aff. at 11

1.

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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 and circumstances to determine whether the proposed deposition would entail an inappropriate burden or hardship. Such considerations may include the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of 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 Deposition and 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 12

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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 Census6 and was designated to 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, 281 F. Supp. 2d 436 (N.D.N.Y. 2003). 13

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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 14

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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 the government context. It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice. Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business. Abrogating the 15

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privilege undermines that culture and thereby impairs the public interest. 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 16

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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 not only what is permissible but also what is desirable. And it is in the ... public interest that the lawyer should regard himself as more than [a] predicter of legal consequences. His duty to society as well as to his client involves many relevant social, economic, political and philosophical considerations. And the privilege of nondisclosure is not lost merely because relevant nonlegal considerations are expressly stated in a communication which 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 17

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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 attorneyclient privilege and the work product doctrine is substantial. As to Marcelles communications with Merrill and Gaddie in this action, plaintiffs 18

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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 the partys attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, 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 provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the partys attorney provided and that the expert relied on in forming the opinions to be expressed. 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 19

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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 20

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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,
7

Plaintiffs also enjoyed the discovery benefits of the evidentiary hearing held at the outset of this action on their motion for a preliminary injunction. 21

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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 22

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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, 23

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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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3. The requests of both plaintiffs and the County for awards of costs and attorneys fees in connection with these motions are DENIED in all respects.

IT IS SO ORDERED.

DATED: July 31, 2012 Albany, New York

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