Ca-00412 Case

IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA RENE ROMO, ET AL. CASE NO.: 2012-CA-00412 PLAINTIFFS, VS. KEN DETZNER AND PAM BONDI, DEFENDANTS. THE LEAGUE OF WOMEN VOTERS OF FLORIDA, ET AL., CASE NO.: 2012-CA-00490 PLAINTIFFS, VS. KEN DETZNER, ET AL., DEFENDANTS. COALITION PLAINTIFFS’ OPPOSITION TO NON-PARTIES’ MOTIONS FOR PROTECTIVE ORDER The Coalition Plaintiffs respectfully request this Court deny the Motion for Protective Order of Data Targeting, Inc., Pat Bainter, Matt Mitchell, and Michael Sheehan (together “Data Targeting”), and the Amended Motion for Protective Order of Frank Terraferma (“Terraferma”), as deficient efforts to delay and avoid proper discovery. I. INTRODUCTION These motions for protective order are the latest act in a play that has gone on far too long. Even putting aside the contemptuous conduct of Data Targeting – which is being addressed separately – the core issues raised by these motions have already been analyzed and rejected multiple times by this Court, and now also by the First District Court of Appeal.1 It is 1 The First District’s Order denying Data Targeting’s petition for writ of certiorari is attached as Exhibit A. Romo, et al. v. Detzner, et al. now beyond dispute in this case that the requested documents are relevant, and that production of those documents will not cause irreparable harm. There is simply nothing left to argue and the documents should be produced forthwith. Ironically, in this latest round of motions, Data Targeting and Terraferma attempt to drape themselves in the Constitution as a basis for refusing to produce their responsive documents. Their associational privilege, privacy and trade secret claims are entirely unfounded. But we suspect they already know this. First, this is nothing like cases where activist groups have shown discovery likely would squelch lawful association. Data Targeting and Terraferma, as well as other like-minded political consultants (collectively, “Political Operatives”), are in the lucrative business of ensuring that Republican candidates prevail in elections. They are political insiders, well known and well paid for promoting Republican causes, and enjoy close access and influence among Republican legislators and staff. They cannot show the discovery sought would discourage lawful efforts to petition the government. To the contrary, it is evident their secret work aided the Legislature in analyzing and preparing redistricting plans to secure partisan favoritism in violation of the Florida Constitution. To argue that this improper conduct should be protected from discovery under the associational privilege is absurd on its face. Second, their claim of privacy is no basis to preclude relevant discovery in civil litigation. The requested discovery is the most practical, and to date the only, means to discern the extent to which the Political Operatives’ secret work with legislative insiders injected partisan intent into the legislative redistricting process. Third, trade secret protection is inapplicable where, as here, the party seeking discovery is not a business competitor. Moreover, the information sought is not secret and does not relate to any formula, process, device or other business information that is kept confidential to maintain 2 Romo, et al. v. Detzner, et al. an advantage over competitors. In fact, the information at issue here was actually shared with other consultants who are Data Targeting’s competitors. It is also evident that the Political Operatives’ work entailed analyses of law and data compiled from government information, which the law does not consider trade secrets. Data Targeting’s trade secret claims, accordingly, provide no basis to avoid discovery. And in the end, Data Targeting has waived its privilege claims due to its contemptuous refusal to obey this Court’s discovery orders. II. BACKGROUND On November 2, 2010, voters approved Amendments 5 and 6 (codified as article III, sections 20 and 21) of the Florida Constitution, which set strict mandates on the Legislature’s redistricting plans. Among the mandates are that “(1) no apportionment plan or district shall be drawn with the intent to favor of disfavor a political party or an incumbent.” art. III, § 20. Accordingly, whether a redistricting plan is constitutional depends on if the Legislature prepared or adopted the plan with intent to favor (or disfavor) a political party or an incumbent. Critical to uncovering that issue is discovery into the involvement, activities, and communications of political insiders who took part in internal legislative efforts related to the Legislature’s redistricting plans. Data Targeting claims it is part of an “Association” with Terraferma, Marc Reichelderfer, Richard Heffley, and other Republican operatives, who worked together in “formulating a strategy for a particular outcome” in the redistricting process. (See Data Targeting’s Motion for Protective Order (“MPO”) at 12); (Data Targeting’s Amended Privilege Log at n.1) (identifying members of alleged “Association”). Data Targeting acknowledges “the potential relevance and value of a document provided to the Legislature or its staff for purposes of commenting on or contributing to the redistricting process,” and claims to have produced all such documents. (See Data Targeting MPO at 19). Yet it has withheld, as privileged and irrelevant, 1833 pages of 3 Romo, et al. v. Detzner, et al. “internal deliberations” of its self-declared “Association,” admittedly prepared “for or in relation to the Legislature’s redistricting actions.” (See id. at 12, 20). Terraferma has taken much the same position refusing to produce an undisclosed number of documents, but without going so far as to claim trade secret protection over his efforts. Limited discovery in this case reveals that key legislative staff including Alex Kelly (Staff Director of the House Redistricting Committee)2 and Chris Clark (staff member of Senator Gaetz, Chair of the Senate Redistricting Committee) privately met with Republican consultants, including the Political Operatives, to “brainstorm” about redistricting in early December 2010. See Exhibit 2 to Reichelderfer Dep. (attached hereto as Exhibit B). For instance, Reichelderfer confirmed in his deposition that Rich Heffley called, among others, Alex Kelly, Chris Clark, Reichelderfer, Terraferma, and Bainter (Data Targeting’s President) to a meeting on December 3, 2010 at the offices of the Republican Party of Florida, about which Reichelderfer gave the following testimony: Q: Tell me what you remember about that meeting. A: There was a specific conversation about going forward on the redistricting process on the issue of privilege, and what conversations would or would not be privileged, and how that would work. I think there was some discussion generally about that. And then there was going to be a follow-up on kind of, I think there were a list of questions. That is the one that sticks out. * * * Q: Right. You wanted to be able to participate in the process, you consultants, but you didn’t want anybody to know what you were saying or doing, right? 2 In its interrogatory answers, the House described Mr. Kelly’s role in redistricting as “the staff director responsible for managing the staff, coordinating the public hearings, presenting proposals to the committee, interacting with the public, creating proposals, interacting with Senate staff, and related tasks.” See House’s Responses and Objections to LOWV Plaintiffs’ First Request for Production of Documents and Interrogatories dated July 27, 2012. Notably absent from the House’s description is any mention of Mr. Kelly’s interaction with the Political Operatives. 4 Romo, et al. v. Detzner, et al. A: I suppose that would be a fair representation. (Reichelderfer Dep. at 64:20-23; 77:12-20; 89:5-9) (emphasis added).3 Reichelderfer’s testimony also uncovered that a key legislative staffer, Kirk Pepper, aide to then Speaker of the House Dean Cannon, provided Reichelderfer (and apparently others, including Heffley) with seven versions of the Legislature’s draft congressional redistricting maps weeks before they were made public, and asked for and received Reichelderfer’s and Heffley’s political advice and input: Q: So your friend, Mr. Kirk Pepper, evidently sent you those seven maps something like two weeks before the general public ever saw them, right? A: According to these documents. * * * Q: And you got them for a reason, isn’t that right? A: I assume it was for a reason. * * * Q: Well, you could determine how these maps performed, right – A: I could. Q: -- politically? A: I could have done that, yes, sir. * * * Q: So you are being exposed to a discussion about how the congressional plan is being formed, right? A: Appears to be, yes, sir. Q: But I thought that was something you weren’t supposed to be involved with? 3 A copy of the Reichelderfer deposition transcript is attached as Exhibit C. 5 Romo, et al. v. Detzner, et al. A: I don’t know. The e-mail says that I am. * * * Q: Okay. Then I show you, sir, Exhibit 33 in the chain. And Dean Cannon responds back to what you wrote on November 27, 2011, to both you and Mr. Pepper, right? A: Yes, sir. Q: And Mr. Reichelderfer, what he says is, quote, “Well as long as the Senate accommodates the concerns that you and Rich [Heffley] identified in the map that they put out tomorrow, then we are in fine shape. How confident are you that they are going to do that?” Is that what he said, sir? A: Yes, sir. Q: So evidently, you and Rich Heffley had identified in the maps that evidently the Senate was going to put out on the 28th some concerns, right? A: Apparently, yes sir. * * * Q: I mean, Dean Cannon was saying that if the Senate is okay with your concerns, your and Rich’s concerns, then we are going to be in fine shape. A: That’s what the Speaker says there.

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