UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ALVIN BALDUS, CINDY BARBERA, CARLENE BECHEN, RONALD BIENDSEIL, RON BOONE, VERA BOONE, ELVIRA BUMPUS, EVANJELINA CLEEREMAN, SHEILA COCHRAN, LESLIE W. DAVIS III, BRETT ECKSTEIN, MAXINE HOUGH, CLARENCE JOHNSON, RICHARD KRESBACH, RICHARD LANGE, GLADYS MANZANET, ROCHELLE MOORE, AMY RISSEEUW, JUDY ROBSON, GLORIA ROGERS, JEANNE SANCHEZBELL, CECELIA SCHLIEPP, TRAVIS THYSSEN, Civil Action File No. 11-CV-562 Plaintiffs, TAMMY BALDWIN, GWENDOLYNNE MOORE and RONALD KIND, Three-judge panel 28 U.S.C. § 2284 Intervenor-Plaintiffs, v. Members of the Wisconsin Government Accountability Board, each only in his official capacity: MICHAEL BRENNAN, DAVID DEININGER, GERALD NICHOL, THOMAS CANE, THOMAS BARLAND, and TIMOTHY VOCKE, and KEVIN KENNEDY, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants, F. JAMES SENSENBRENNER, JR., THOMAS E. PETRI, PAUL D. RYAN, JR., REID J. RIBBLE, and SEAN P. DUFFY, Intervenor-Defendants. (caption continued on next page) DECLARATION OF DOUGLAS M. POLAND IN SUPPORT OF PLAINTIFFS’ RESPONSE TO MOTION FOR REVIEW BY THREE-JUDGE COURT OF ORDERS OF DECEMBER 8, 2011, AND DECEMBER 20, 2011 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 1 of 6 Document 89 VOCES DE LA FRONTERA, INC., RAMIRO VARA, OLGA WARA, JOSE PEREZ, and ERICA RAMIREZ, Plaintiffs, Case No. 11-CV-1011 JPS-DPW-RMD v. Members of the Wisconsin Government Accountability Board, each only in his official capacity: MICHAEL BRENNAN, DAVID DEININGER, GERALD NICHOL, THOMAS CANE, THOMAS BARLAND, and TIMOTHY VOCKE, and KEVIN KENNEDY, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants. I, Douglas M. Poland, declare, under penalty of perjury and pursuant to 28 U.S.C. § 1746, that the following is true and correct: 1. I am an attorney with the law firm of Godfrey & Kahn, S.C., and I am admitted to practice in the State of Wisconsin and in the U.S. District Court for the Eastern District of Wisconsin. I represent plaintiffs in the above-captioned matter. I make this declaration based on my personal knowledge and in support of plaintiffs’ response to the “Motion for Review by Three-Judge Court of Orders of December 8, 2011, and December 20, 2011” (Dkt. 84). 2. Pursuant to the Court’s Scheduling and Discovery Order (Dkt. 35) and Federal Rule of Civil Procedure 26(a), plaintiffs exchanged initial disclosures with defendants— members of the Wisconsin Government Accountability Board (“GAB”), each named in his official capacity—on November 16, 2011. A true and correct copy of plaintiffs’ initial disclosures is attached as Exhibit 1; a true and correct copy of defendants’ initial disclosures is attached as Exhibit 2. 2 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 2 of 6 Document 89 3. Because defendants’ disclosures listed categories of individuals without supplying names as required by Rule 26(a), plaintiffs filed a motion to compel (Dkt. 50) on November 21, 2011. On November 25, defendants served plaintiffs via e-mail with their Amended Initial Rule 26(a) Disclosures, a true and correct copy of which is attached as Exhibit 3. Four additional names were listed in the amended disclosures: Joe Handrick, Adam Foltz, Tad Ottman, and Ronald Keith Gaddie. 4. On November 22, 2011, plaintiffs issued subpoenas for Messrs. Handrick, Foltz, and Ottman, true and correct copies of which are attached as Exhibit 4. Mr. Handrick’s deposition was noticed for December 1 at 10:00 a.m.; Mr. Foltz’s deposition was noticed for December 2 at 9:00 a.m.; and Mr. Ottman’s deposition was noticed for December 2 at 1:00 p.m. The subpoenas also required documents to be produced. 5. Process servers attempted to effect service starting November 23, 2011. David Moyer accepted service on Mr. Foltz’s behalf at the Capitol on November 23. Mr. Handrick was personally served on November 28. Following multiple attempts to serve Mr. Ottman, at the Capitol and at possible home addresses, plaintiffs recalled Mr. Ottman’s subpoena on November 30, without Mr. Ottman having been served. Mr. Ottman’s subpoena was reissued on November 30 for deposition on December 7 at 1:00 p.m; a true and correct copy of the reissued subpoena is attached as Exhibit 5. After two failed service attempts, Mr. Ottman was personally served on December 4 at a residential address. 6. The legislature moved on November 30, 2011, to quash the subpoena of Mr. Handrick (Dkt. 63), and on December 6 to quash the subpoena of Mr. Ottman (Dkt. 72). On December 1, the legislature served plaintiffs with an objection to the subpoena of Mr. Foltz, a true and correct copy of which is attached to this declaration as Exhibit 6. Plaintiffs filed an 3 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 3 of 6 Document 89 opposition to the motion to quash the subpoena of Mr. Handrick on December 6 (Dkt. 71). The Court issued an order denying both motions to quash on December 8 (Dkt. 74). 7. Mr. Foltz’s subpoena was reissued on December 5, 2011, for deposition on December 9 at 9:00 a.m.; a true and correct copy of the reissued subpoena is attached as Exhibit 7. Multiple attempts were made on December 5, 6, and 7 to serve Mr. Foltz at the Capitol and a residential address; none were successful. 8. Following the Court’s December 8 order, counsel for the legislature agreed to accept service on behalf of all three witnesses. The subpoenas were reissued and their depositions were re-noticed for December 20, 21, and 22. Copies of the reissued subpoenas are attached as Exhibit 8. 9. On December 13, 2011, the legislature filed a motion for clarification of the Court’s December 8 order (Dkt. 77). Plaintiffs responded to the motion on December 16 (Dkt. 80). 10. Mr. Handrick was deposed at the Madison offices of Godfrey & Kahn, S.C., on Tuesday, December 20, 2011. I attended the deposition and conducted much of the examination. A true and correct copy of the complete transcript of that deposition is attached as Exhibit 9. 11. Mr. Handrick was instructed not to answer a total of 45 questions. Eric McLeod, an attorney with Michael Best & Friedrich LLP, the law firm representing the legislature and the witness, instructed Mr. Handrick not to answer 11 questions. Those exchanges appear in the deposition transcript attached as Exhibit 9 on the following pages: 89; 119; 122-23; 133-34; 134; 134; 134-35; 181; 182; 183; 185-86. Dan Kelly, an attorney with Reinhart Boerner Van Deuren S.C., the law firm representing defendants, instructed Mr. Handrick not to answer 34 questions. Those exchanges appear in the deposition transcript attached as Exhibit 9 on the following pages: 79; 82-83; 83; 89-90; 92; 93; 94; 95; 98; 99; 99-100; 101-102; 102; 103; 106; 4 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 4 of 6 Document 89 107; 109; 113; 114-15; 120; 120-21; 126-27; 128-29; 130-31; 137; 191-92; 193; 195; 196; 198-99; 201-202; 213-14; 217-18; 250-51. 12. On December 20, 2011, the Court issued an order granting in part and denying in part the legislature’s motion for clarification (Dkt. 82). Counsel received the order via e-mail through the Court’s ECF system at approximately 2:50 p.m., as the deposition of Mr. Handrick was underway. The deposition was adjourned to allow counsel to review the order. 13. When the deposition was reconvened, a stipulation was entered on the record allowing counsel for the legislature and defendants to continue to assert objections and instruct the witness not to answer based on privilege, with the assumption that the legislature would pursue an appeal of the Court’s order by the end of the week. Counsel further agreed that, if no decision reversing the Court’s previous discovery orders or staying Mr. Handrick’s deposition was issued by December 30, that Mr. Handrick would be made available for a continuation of his deposition the first week of the new year. Plaintiffs agreed not to file any motion to compel related to these issues until the agreed-upon timeline had lapsed. This stipulation appears in the deposition transcript attached as Exhibit 9 at pages 186-88. 14. Mr. Foltz was deposed at the Madison offices of Godfrey & Kahn, S.C., on Wednesday, December 21, 2011. I attended the deposition and conducted much of the examination. A true and correct copy of the complete transcript of that deposition is attached as Exhibit 10. 15. Mr. McLeod instructed Mr. Foltz not to answer 12 questions. Those exchanges appear in the deposition transcript attached as Exhibit 10 on the following pages: 9-10; 21; 44-45; 63-64; 67-68; 79-80; 126-27; 145; 146; 149-50; 152; 234-35. 16. Mr. Foltz produced some documents in response to the document request included in the subpoena. He also withheld a number of responsive documents on the basis of privilege. 5 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 5 of 6 Document 89 A copy of the “privilege log” and objections asserted by Mr. McLeod in response to the subpoena issued to Mr. Foltz is attached as Exhibit 11. 17. Mr. Ottman was deposed at the Madison offices of Godfrey & Kahn, S.C., on Thursday, December 22, 2011. I attended the deposition and conducted much of the examination. A true and correct copy of the transcript of that deposition is attached as Exhibit 12. 18. Mr. McLeod instructed Mr. Ottman not to answer 15 questions. Those exchanges appear in the deposition transcript attached as Exhibit 12 on the following pages: 17; 38-39; 45; 50-51; 68-69; 74; 83; 89; 91; 108-109; 128; 172-73; 179-80; 193-94; 207. 19. Mr. Ottman produced some documents in response to the document request included in the subpoena. He also withheld a number of documents on the basis of privilege. A copy of the “privilege log” and objections asserted by Mr. McLeod in response to the subpoena issued to Mr. Ottman is attached as Exhibit 13. 20. Attached as Exhibits 14 and 15 are true and correct copies of documents included in Exhibit 33A from the deposition of Mr. Ottman. 21. Attached as Exhibit 16 is a true and correct copy of Exhibit 36 from the deposition of Mr. Ottman. I declare under penalty of perjury that the foregoing is true and correct. Dated: December 27, 2011. s/ Douglas M. Poland Douglas M. Poland State Bar No. 1055189 Godfrey & Kahn, S.C. One East Main Street, Suite 500 P.O. Box 2719 Madison, WI 53701-2719 608-257-3911 dpoland@gklaw.com 7275914_1 6 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 6 of 6 Document 89 EXHIBIT 1 Case Filed 12/27/11 Page 1 of 5 Document 89-1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ALVIN BALDUS, CARLENE BECHEN, ELVIRA BUMPU S, RONALD BIENDSEI, LESLIE W. DAVIS BRETT ECKSTEIN, GEORGIA ROGERS, RICHARD KRESBACH, ROCHELLE MOORE, AMY RISSEEUW, JUDY ROBSON, JEANNE BELL, CECELIA TRAVIS and CINDY BARBERRA, Civil Action Plaintiffs, File No. lleVw562 v. Three?j udge panel Members of the Wisconsin Government Accountability 28 .S.C. 2284 Board, each only in his of?cial capacity: MICHAEL BRENNAN, DAVID DEININGER, GERALD NICHOL, THOMAS CANE, THOMAS BARLAND, TIMOTHY VOCKE, and KEVIN KENNEDY, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants. RULE 26 DISCLOSURES Pursuant to Federal Rules of Civil Procedure 26(a)( l) and (2) and the scheduling and discovery stipulation between the parties, negotiated at the request of the Court and entered as an order by the Court on November 14, 2011, plaintiffs make the following initial disclosures: 1. Rule .. the name and address and telephone number of each individual likely to have discoverable information that the disclosing party may use: Case Filed 12/27/11 Page 2 of 5 Document 89-1 Name/A ddress Subject of information Hon. Peter Barca Room 201 West, State Capitol Madison, WI 53708 (608) 266?5504 Hon. Jeff Fitzgerald Room 211 West, State Capitol Madison, WI 53708 (608) 266-2540 Hon. Scott Fitzgerald Room 211 South, State Capitol Madison, WI 53707?7882 (608) 266?5660 Adam Foitz Room 21 1 West, State Capitol Madison, WI 53708 (608) 266?3387 Joe Handrick 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 (414) 298?1000 Kevin Kennedy Government Accountability Board 212 East Washington, 3ml Floor Madison, WI 53703 (608) 266?8005 Hon. Mary Lazich Room 8 South, State Capitol Madison, WI 53707?7882 (608) 266-6400 David Obey 3920 36?? Street North Arlington, VA 22207?5312 (703) 525?1694 Tad Room 211 South, State Capitol Madison, WI 53707 (608) 266-5660 Effects of redistricting/political drafting and enactment process for Acts 43/44/ minority participation Political drafting and enactment process for Acts 43/44 Political drafting and enactment process for Acts 43/44 Political drafting process for Acts 43/44 goals and factors Political drafting and enactment process for Acts and factors History of redistricting/campaign and election process and deadlines/applicability of district lines Boundaries for recall elections Historical data and patterns/Congressional district constituencies/communities of interest Political drafting process for Acts and factors 2 Case Filed 12/27/11 Page 3 of 5 Document 89-1 Judy Robson Legislative districts/voting history/disenfranchisernent 241 1 East Ridge Road of state senate voters Beloit, WI 53511 (608) 362?8338 Plaintiffs reserve the right to identify any additional witness disclosed in any of the documents produced in this litigation by defendants or third parties. 2. Rule - a copy or a description of all documents that may be used to support plaintiffs? claims. All of the documents or other materials subject -to this Rule that the plaintiffs may use are public recordsv?including census data and legislative proposals or if not public records, are not in plaintiffs? ?possession, custody or control? and, therefore, not subject to the Rule. Rather, they are in the possession, custody or control of defendants or third parties, which are subject to the discovery process. The only exception to this disclosure is the privileged work product of plaintiffs? expert witnesses. 3. Rule .. a computation of each category of damages sought by the plaintiffs. Plaintiffs do not seek monetary damages; rather, they seek only declaratory and injunctive relief and, upon the entry of an appropriate order, an award of attorneys? fees and costs pursuant to federal law. 4. Rule .. any insurance agreement that may be relevant. Plaintiffs are aware of none. 5. Rule 26(a)(2) the identity of any witnesses who may be used at trial to present evidence under Federal Rules of Evidence 702, 703 or 705. a, .3 Case Filed 12/27/11 Page 4 of 5 Document 89-1 Plaintiffs? expert witness will be Ken Mayer, 7105 Longmeadow, Madison, Wisconsin 53717. The report required by Rule will be submitted pursuant to the November 14, 2011 scheduling and discovery orderwthat is, no later than December 14, 2012. Plaintiffs make the Rule 26 disclosures based upon the knowledge and information now reasonably available to them. Accordingly, plaintiffs reserve the right to supplement this disclosure in accordance with the Federal Rules of Civil Procedure and the iocal rules of this Court, including the identi?cation of additional witnesses and experts in response to the defendants? Rule 26 disclosures. These initial disclosures are provided without prejudice to plaintiffs? right to introduce at a hearing or at trial any evidence that is subsequently discovered. Dated: November 16, 2011. GODFREY KAI-1N, sc. Refie 51a Kathry Mason State Bar No. 1055500 One East Main Street, Suite 500 PO. Box 2719 Madison, WI 53701-2719 608257-3911 Attorneys for Plaintiffs 7100613_i 4 Case Filed 12/27/11 Page 5 of 5 Document 89-1 EXHIBIT 2 Case Filed 12/27/11 Page 1 of 7 Document 89-2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN ALVIN BALDUS, CINDY BARBERA, CARLENE BECHEN, ELVIRA BUMPUS, RONALD BIENDSEI, LESLIE W. DAVIS, III, BRETT ECKSTEIN, GEORGIA ROGERS, RICHARD KRESBACH, ROCHELLE MOORE, AMY RISSEEUW, JUDY ROBSON, JEANNE SANCHEZ-BELL, CECELIA SCHLIEPP, and TRAVIS THYSSEN, Plaintiffs, Case No. 11-C-00562 (Three Judge Panel) v. Members of the Wisconsin Government Accountability Board, each only in his official capacity: MICHAEL BRENNAN, DAVID DEININGER, GERALD NICHOL, THOMAS CANE, THOMAS BARLAND, and TIMOTHY VOCKE, and KEVIN KENNEDY, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants. DEFENDANTS' INITIAL RULE 26(a) DISCLOSURES NOW COME the defendants by their attorneys, J.B. Van Hollen, Attorney General, and Maria S. Lazar, Assistant Attorney General, and make the following initial disclosures pursuant to Fed. R. Civ. P. Rule 26(a)(1): A. Individuals potentially having knowledge regarding this matter. Defendants assert that the Government Accountability Board ("GAB") did not prepare, edit, or in any other way draft the redistricting maps for the new boundaries which were passed by the Legislature on July 19 and 20, 2011 and signed into law (2011 Wisconsin Acts 43 and 44) Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 2 of 7 Document 89-2 by the Governor on August 9, 2011. GAB and the individual defendants have been sued because of their statutory responsibility to implement the districts that are now the law of the State. The defendants had no communications with the Legislature, prior to the enactment of the new redistricting maps on August 9, 2011, with respect to the boundaries of the new maps. Accordingly, the information and details provided in this Initial Rule 26(a) Disclosure are preliminary and to the best of the defendants' knowledge at this time. Defendants may amend this Disclosure as more discovery is completed. Based upon the foregoing, the defendants make the following initial disclosures in accordance with the Court's Scheduling Order dated November 14, 2011: 1. Defendant Kevin J. Kennedy (GAB Director and General Counsel), Nathaniel E. Robinson (GAB Division Administrator, Elections Division), and other staff members or contracted employees, including but not limited to, Ross Hein, Sarah Whitt, David Grassel, Ann Oberle, and David Meyer, with respect to the implementation of the new redistricting maps. 2. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature's behalf, who were involved in drawing the redistricting maps which were signed into law on August 9, 2011, including without limitation, those individuals who reviewed the 2010 decennial census and assisted in determining the appropriate, constitutional boundaries for the state and Congressional districts as memorialized in Acts 43 and 44. 3. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature's behalf, who were involved in reviewing census and population data 2 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 3 of 7 Document 89-2 from the 2010 decennial census to insure minimum population deviation for the new districts. 4. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature's behalf, who were involved in reviewing population and other data so as to preserve, to the extent possible and practicable, the core population of prior districts as well as communities of interest. 5. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature's behalf, who assisted the Legislature in insuring that the new redistricting maps, to the extent possible, kept wards and municipalities whole within legislative district boundaries and to the extent possible, recognized local government boundaries. 6. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature's behalf, who assisted the Legislature to insure that, if voters were shifted from odd to even senate districts, they were not unnecessarily and unconstitutionally disenfranchised by being deprived of the opportunity to vote. 7. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature's behalf, who reviewed the 2010 decennial census data and the previous districting maps to insure that the new districts were as geographically compact as practicable. 8. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature's behalf, who assisted the Legislature to prevent unnecessary and unconstitutional voter dilution of minority voters. Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 4 of 7 Document 89-2 9. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature's behalf, who assisted the Legislature to insure that the new districts reflected communities of interest along with race and that, where possible, minority citizens comprising a numerical majority of the citizen voting age population. 10. Individuals who reside in, or are familiar with, challenged districts and/or pre-existing districts with respect to facts about those districts that are relevant to the constitutionality of the new redistricting maps. 11. Experts retained on behalf of the Legislature, and/or its various bodies, who assisted in preparing the redistricting maps. 12. Experts to be retained on behalf of the defendants who will assist in defending against the allegations in the First Amended Complaint. 13. Other individuals whose identity will become known through further discovery. B. Potentially relevant documents. Defendants may use the following documents to support their defenses in this matter. 1. Documents in the possession of the GAB with respect to the implementation of the new redistricting maps. 2. The approved district maps which were created (by the Legislature or the Courts) each decade from 1970 through 2002. 3. The decennial census from 1970 through 2010. 4. Documents which detail population growth and changes from 1970 through 2010, including, but not limited to, historical, minority-based, social, and other community of interest breakdowns. 4 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 5 of 7 Document 89-2 5. Documents in the possession of the Legislature, and/or its various bodies, which were utilized to draft the 2011 redistricting maps. 6. Expert reports and analysis, if any, in the possession of the Legislature, and/or its various bodies, which were utilized to draft the 2011 redistricting maps. 7. The defendants reserve the right to supplement this response with any documents that become known through further discovery. All of the documents listed above, which are in the possession of counsel for defendants, have been made available for inspection by the other parties at a time and place mutually agreed upon by all parties. Any copies that are requested as a result of any inspection may be obtained at the expense of the requestor at the usual State copying rate. C. Calculation of damages. Monetary damages are not being sought in this action. Defendants reserve the right to present rebuttal evidence through their named fact and expert witnesses, as to any damages alleged by the plaintiffs. 5 Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 6 of 7 Document 89-2 D. Insurance agreements. The State of Wisconsin is self-insured. Dated this 16th day of November, 2011. J.B. VAN Attorne y G LEN auk__ MARIA S. LAZAR Assistant Attorney General State Bar #1017150 Attorneys for Defendants Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 267-3519 (608) 267-2223 (fax) lazarms@doj.state.wi. us Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 7 of 7 Document 89-2 EXHIBIT 3 Case Filed 12/27/11 Page 1 of 14 Document 89-3 IN THE UN STATES DISTRICT COURT OR THE EASTERN DISTRICT OF WISCONSIN ALVIN EALDUS, CARLENE EECHEN, ELVIRA BUMPUS, RONALD BIENDSEIL, LESLIE W. DAVIS, HE, BRETT ECKSTEIN, GLOREA ROGERS, RICHARD KRESEACH, ROCHELLE MOORE, AMY RISSEEUW, JUDY ROBSON, JEANNE CECELEA SCHLIEPP, TRAVIS CINDY BARBERA, RON BOONE, VERA BOONE, EVANIELINA CLEERMAN, SHEILA COCHFLAN, MAXINE- HOUGH, CLARENCE JOHNSON, RICHARD LANCE, and GLADYS MANZANET, Plaintiffs, TAMMY BALDWIN, GWENDOLYNNE MOORE and RONALD KIND, Intevenor~Plaintiffs, Members of the Wisconsin Government Accountability Board, each only in his of?cial capacity: MICHAEL BRENNAN, DAVID DEININ GER, GERALD NICHOL, THOMAS CANE, THOMAS BARLAND, and TIMOTHY VOCKE, and KEVIN KENNEDY, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants, F. JAMES SENSENBRENNER, JR, THOMAS E. PETRI, PAUL D. RYAN, JR, REID RIBBLE, and SEAN P. DUFFY. Intevenor?Defendants. VOCES DE LA FRONTERA, INC, RAMIRO VARA, OLGA VARA, Case Filed 12/27/11 Case No. IPS-DPW-RMD Page 2 of 14 Document 89-3 JOSE PEREZ, and ERICA RAMEREZ, Plaintiffs, V. Case No. JPS-DPW-RMD Members of the Wisconsin Government Accountability Board, each only in his official capacity: MICHAEL BRENNAN, DAVID GERALD NICHOL, THOMAS CANE, THOIVIAS BARLAND, TIMOTHY VOCKE, and KEVIN KENNEDY, Director and General Counsel for the Wisconsin Government Assauntability Board, Defendants, AMENDED INITIAL RULE 26(a) DISCLOSURES NOW COME the defendants by their attorneys, 1.1?3. Van Hollen, Attorney General, and Maria S. Lazar, Assistant Attorney General, and make the following amended initial disclosures pursuant to Fed. R. Civ. P. Rule A. Individuals potentially having knowledge that the defendants may use to support their claims or defenses. Defendants assert that the Government Accountability Board did not prepare, I I edit, or in any other way draft the redistricting maps for the new boundaries which were passed by the Legislature on July 19 and 20, 2011 and signed into law (2011 Wisconsin Acts 43 and 44) by the Governor on August 9, 2011. GAB and the individual defendants have been sued because of their statutory reSponsibility to implement the districts that are now the law of the State. The defendants had no communications with the Legislature, prior to the enactment of the new Case Filed 12/27/11 Page 3 of 14 Document 89-3 redistricting maps on August 9, 20ll, with reSpect to the boundaries of the new maps. Accordingly, the information and details provided in these Amended initial Rule 26(a) Disclosures are preliminary and to the best of the defendants? knowledge at this time. Defendants may amend these Disclosures as more discovery is completed. Based upon the foregoing, the defendants make the following amended initial disclosures in accordance with the Court?s Scheduling Order dated November 14, 20] l: 1. Defendant Kevin J. Kennedyr (GAB Director and General Counsel) Government Accountability Board 2l2 East Washington Avenue, 3rd Floor Madison, Wi 53703 (608) 266-8005 implementation of new redistricting maps (2011 Wisconsin Acts 43 and 44), other election administration, including but not limited to, election process, deadlines, past elections and historical information. Nathaniel E. Robinson (GAB Division Administrator, Elections Division) Government Accountability Board 212 East Washington Avenue, 3rd Floor Madison, WI 53703 (608) 266?8005 Implementation of new redistricting maps (2011 Wisconsin Acts 43 and 44), other election administration, including but not limited to, election process, deadlines, past elections and historical information. Ross Hein Government Accountability Board 212 East Washington Avenue, 3rd Floor Madison, WI 53703 (608) 266-8005 Implementation of new redistricting maps (20H Wisconsin Acts 43 and 44), other election administration, including but not limited to, election process, deadlines, and past elections. n, Case Filed 12/27/11 Page 4 of 14 Document 89-3 4. Sarah Whitt Government Accountability Board 232 East Washington Avenue, 3rd Floor Madison, W1 53703 (608) 266?8005 Implementation of new redistricting maps (2011 Wisconsin Acts 43 and 44-), other election administration, including but not limited to, election process, deadlines, and past elections. 5. David Grassel Government Accountability Board 212 East Washington Avenue, 3rd Floor Madison, WI 53703 (638) implementation of new redistricting maps (2011 Wisconsin Acts 43 and 44), other election administration, including but not limited to, election process, deadlines, and past elections. 6. Ann Oberle Government Accountability Board 212 East Washington Avenue, 3rd Floor Madison, WI 53703 (608) 266~8005 implementation of new redistricting maps (2011 Wisconsin Acts 43 and 44), other election administration, including but not limited to, election process, deadlines, and past elections. - David Meyer Government Accountability Board 212 East Washington Avenue, 3rd Floor Madison, WI 53703 (608) 266?8005 Implementation of new redistricting maps (2011 Wisconsin Acts 43 and 44), other election administration, including but not limited to, election process, deadlines, and past elections. - 4 Case Filed 12/27/11 Page 5 of 14 Document 89-3 8. Ronald Keith Gaddie, factual and expert testimony Professor of Political Science Titre University of Oklahoma 455 West Lindsey Street, Room 222 Norman, OK 730} 9~2002 (405) 325?4989 Professor Gaddie will provide testimony regarding the constitutional requirements of the legislative maps at issue including, but not limited to, contiguity, compactness, communities of interest, core district populations, population requirements, voting rights, municipal and county splits, pairings, potential disenfranchisement and the lack of impennissible political gerrymandering of districts. 9. Individuals from the Legislature or one of its agencies who can provide factual, population, census data and other historical information related to the constitutional requirements of legislative maps at issue, 10. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature?s behalf, who were involved in drawing the redistricting maps that were signed into law on August 9, 2011,including without limitation, those individuals who reviewed the 2010 decennial census and assisted in determining the appropriate, constitutional boundaries for the state and Congressional districts as memorialized in Acts 43 and 44: I Adam Foltz Room 211 West, State Capitol Madison, WI 53708 (608) 266-3387 Tad Ottman Room 211 South, State Capitol Madison, WI 53708 (608) 266?5660 Case Filed 12/27/11, Page 6 of 14 Document 89-3 Joe Hendrick Reinhart, Boemei?, Van Deuten, SC. 1000 North Water Street, Suite 2700 Milwaukee, W1 53202 (414) 2984000 ll, Individuals from the Legislature, and/or its various bodies, or these individuals on the Legislature?s behalf, who were involved in reviewing census and pepuletion data. from the 2010 decennial census to insure minimum population deviation for the new districts: Adam Foltz Room 21 .1 West, State Capitol Madison, Wl 53708 (608) 266-3387 Tad Ottman Room 211 South, State Capitol Madison, WI 53708 (608) 2666660 lee Handiiek Reinhait, Boemer, Van Deuren, SC. 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 (414) 298?3000 12. Individuals from the Legislature, and/or its various bodies, or those in?ividuals on the Legislature?s behalf, who were involVed in reviewing population and other data so as to preserve, to the extent possible and practicable, the core population of prior districts as well as communities of interest: Adam Foltz Room 211 West, State Capitol Madison, WI 53708 (608) 266?33 87 - 5 Case Filed 12/27/11 Page 7 of 14 Document 89-3 Tad Ottrnan Room Zil South, State Capitol Madison, WI 53 708 (608) 266?5660 Joe Hendrick Reinhart, Boemer, 'Vau Beaten, SC. 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 (414) 298-1000 13. Individuals from the Legisiature, and/or its various bodies, or those individuais oh the Legislature?s behalf, who assisted the Legislature in insuring that the new redistricting maps, to the extent possible, kept wards and municipalities whole Within legislative district boundaries and to the extent possible, recognized local government boundaries: Adam Foltz Room 211 West, State Capitol Madison, WI 53708 (608) 266?3387 Tad Ottman Room 211 South, State Capitol Madison, WI 53708 (608) 266?5660 Joe Hendrick Reinhart, Boemer, Van Deuren, SC. 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 (414) 298?1000 14. individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature?s behaif, who assisted the Legislature to insure that, if voters were shifted - 7 - Case Filed 12/27/11 Page 8 of 14 Document 89-3 from odd to even. senate districts, they were not unnecessarily disenfranchised by being deprived of the opportunity-to vote: Adam Feltz Room 211 West, State Capitol MadisOn, WI 53708 (608} 266?3387 Tad Ottmam Roem 211 South, State Capitol Madison, WI 53708 (608) 266-5660 }oe Hendrick Reinhart, Beemer, Van Deuten, SC. 1000 North Water Street, Suite E700 Milwaukee, WI 53202 (414) 298?1000 15. the Legislature, and/or its various bodies, or those individuals on the Legislature?s behalf, who reviewed the 2010 decennial census data and the previous distrieting maps to insure that the new districts wereas geographically compact as practicable: Adam Foltz Room 211 West, State Capitol Madison, WI 53 708 (608) 266-3387 Tad Ottman Room 211 South, State Capitol Madison, WI 53708 (608) 266?5660 Joe Handrick . Reinhart, Boemer, Van Deuren, SC. 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 (414) 298?1000 .. Case Filed 12/27/11 Page 9 of 14 Document 89-3 i6. le?ividuals from the Legislature, and/or its various bodies, or those individuals on the Legislature?s behalf, who assisted the Legislature to prevent unnecessary and unconstitutionai voter dilution of minority voters: Adam Foltz Room 211 West, State Capitol Madison, WI 53708 (608) 266-3387 Tad Ottman South, State Capitol Madison, Wt 53708 (608) 2666660 Joe Hendrick Reinhazt, Boomer, Van Deuren, SC. 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 (414) 298?1000 17. Individuals from the Legislature, and/or its various bodies, or those individuals on the Legislature?s behal? who assisted the Legislature to insure that the new distticts re?ected communities of interest: Adam Foltz Room 211 West, State Capitol Madison, WI 53708 (608) 266-3387 Tad Ottman Room 211 South: State Capitol Madison, WI 53708 (608) 266-5660 Joe Hendrick Reinhart, Boomer, Van Deuren, SC. 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 (414) 2984000 w9w Case Filed 12/27/11 Page 10 of 14 Document 89-3 18. lndividuais who reside in, or are familiar with, challenged districts and/or preexisting districts with reapect to facts about those districts that are relevant to the constitutionality of the new redistricting maps. 29. Experts retained on behalf of the Legislature, and-?or its various bodies, who assisted in preparing the redistricting maps. 20. Experts retained, or to be retained, on behalf of the defendants who will assist in defending against the allegations in the Second Amended Complaint Ronald Keith Gaddie, factual and expert testimony i?rofessor of Political Science The University of Oklahoma 455 West Lindsey Street, Room 222 Norman, OK 73019?2001 (405) 325?4989 Professor Gaddie will provide testimony regarding the constitutional requirements of the iegislative maps at issue including, but not limited to, contiguity, compactness, communities of interest, core district populations, population requirements, voting rights, municipal and county splits, pairings, potential disen?'anchisement and the lack of impermissible political gerrymandering of districts. 21. Other individuals Whose identity will become known through further discovery. Pursuant to Fed. R. Civ. the parties are to provide ?the name, and if known, the address and telephone nurnber? of each. individual likely to have discoverahle information?along with the subjects of that informationgthat the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.? Accordingly, the names listed above consist of the individuals, presently known to the defendants, who the defendants may use to support their claims or defenses. Glack v. Ansett Australia Ltd, 204 F.R.D. 217 (BBC, 2001) (plaintiff challenging defendants 26(a) disclosures required to show 10 - Case Filed 12/27/11 Page 11 of 14 Document 89-3 that defendant intended to use undisclosed individuals at trial); A Traveler v. CSX Tramp, Inc, No. 2006 WL 205}. 732 (July 20, 2006, NB. End). Federal Rule of Civil Procedure 26, 2000 Notes of Advisory Committee, it?) party is no longer obligated to disclose Witnesses or documents, whether favorable or unfavorable, that it does not intend to use. . . . As case preparation continues, a party must supplement its disclosures when it determines that it may use a witness or document that it did not previously intend to use?); Crease Certage Co. v. Naz?! Warehouse luv. Co, No 2003 2l2546l7 (SD. ind. April 30, 2003) {challenge to 26(21) disclosures failed to clear ?high hurdle? cit-demonstrating intent to use undisclosed witness). Moreover, the matter at issue in this case is the constitutionality of Acts 43 and 44. Several of the individuals listed by the plaintiffswaside from their expert?appear to be relevant only to the intent of the Legislature when it enacted theseActs. The Wisconsin State Supreme Court has expressly noted that legislative intent is determined by the language of a statute, not the subjective views of individual legislators who may have supported a bill. ?it is the enacted law, not the unenacted intent, that is binding on the public.? State ex rel. Kala! v. Circuit Court, 2004 Wl 58, ?l 44, 271 Wis. 2d 633,4 681 110. While there may be some inquiry into the action taken by the Legislature, ?[g]overnmental action only fails rational basis scrutiny if no sound reason for the action can be hypothesized.? Board of Trustees v. Garrett, 531 US. 356, 367 (2001). :kFinally, it is quite dif?cult, if not nearly impossible to determine legislative intent. Edwards v. Aguillard, 482 US. 578, 636?37 (1987) (J. Scalia, dissenting) (?discerning the subjective motivation of those enacting statutes is, to be honest, almost always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed ?nite . . . To look for the sole purpose of even a single legislator is probably to look for something that does - 11 - Case Filed 12/27/11 Page 12 of 14 Document 89-3 not exist?) Indeed, if the trial in this case will delve into subjective motivations, it will not be completed within the four days allotted'.~ Therefore, some of the individuals identi?edin the plaintiffs? Initial Disclosures are not relevant to this challenge, and, are appiepiiately not identi?ed by the defendants. B. Potentially relevant documents. Defendants may use the following documents to suppoit their defenses in this matter. 1. Documents in the possession of the GAB with respect to the implementation of the legislative maps at issue. 2. The: approved legiSiative maps which were created (by the Legislature or the Courts) each decade from 1970 through 2002. 3. The decennial census from 1970 through 4. Documents which detail population growth and changes from 1970 through 2010, including, but not limited to, historical, minority~based, social, and other community of interest breakdowns. 5. Historical documents and information relating to the constitutional requirements for the legislative maps at issue, including, but not limited to, contiguity, compactness, communities of interest, core district populations, population requirements, voting rights, municipal and county splits, pairings, and potential disenfranchisement. 6. Documents in the possession of the Legislature, and/or its various bodies, that were utilized to draft the 2011 legislative maps at issue. 7. Expert reports and analysis, if any, in the possession of the Legislature, and/or its various bodies, that were utilized to draft the 2011 legislative maps at issue. - 12 Case Filed 12/27/11 Page 13 of 14 Document 89-3 8. The defendants reserve the right to further supplement this response with any accuments that become known through further discovery. Any of the documents listed above which are in the possession of defendants will he made availahie for inspection by the other paities at a timeand place mutually agreed upon by all parties. Any copies that are requested as a result of any inspection may he obtained at the expense of the requester at the usual State copying rate. Calculation of damages, Monetary damages are not being sought in this action. Defendants reserve the right to present rebuttal evidence through their named fact and expert witnesses, as to any damages alleged by the plaintiffs. D. Insurance agreements. The State of Wisconsin is self~insured. Dated this 25th day of November, 2011. MARIA S. LAZAR Assistant Attorney Generai State Bar #1017150 - Attorneys for Defendants - Wisconsin Department of Justice Post Of?ce Box 7857 Madison, Wisconsin 53707-7857 (608) 2676519 (608) 2612223 (fax) wt. as 13 Case Filed 12/27/11 Page ?14 of 14 Document 89-3 EXHIBIT 4 Case Filed 12/27/11 Page 1 of 13 Document 89-4 KAHN 8.8. ONE EAST MAIN STREET, SUITE 500 - POST OFFICE BOX 2719 MADISON, WISCONSIN 53701-2719 TEL0 608.257.3911 FAX- 608.257.0609 - GKLAW.COM Direct: 414?287-951 2 rmason@gklaw.com November 22, 2011 VIA PROCESS SERVER Joe Handrick 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 RE: Baldus et al. v. Brennan et at. Eastern District of Wisconsin Case No. 11-CV-562 Dear Mr. Handrick: Enclosed and served upon you is a Subpoena requiring you to appear for a deposition scheduled for December 1, 2011 beginning at 10:00 am. at the law offices of Godfrey Kahn, S.C., 780 N. Water Street, Milwaukee, Wisconsin 53202. The subpoena also requires that you produce at the deposition any and all documents used by you or members of the Legislature to draw the 2011 redistricting maps enacted as Act 43 and Act 44. Please call me at (414) 287-9512 with any questions. GODFREY KAHN, S.C. i Rebecca Mason RKM :js Enclosures 7139945_1 OFFICES IN MILWAUKEE, MADISON, WAUKESHA, GREEN BAY AND APPLETON, WISCONSIN AND WASHINGTON, DC. GODFREY KAHN, S.C. IS A MEMBER OF A WORLDWIDE NETWORK OF INDEPENDENT LAW FIRMS. Case Filed 12/27/11 Page 2 of 13 Document 89-4 i~ "v'i Issued by the UNITED STATES DISTRICT COURT Eastern District of Wisconsin ALVIN BALDUSI 9? at SUBPOENA IN A CIVIL CASE V. Members of the Wisconsin Government Accountability Board, each only in his official capacity: MICHAEL BRENNAN, et al. Case Number:? 1 PS TO: Joe Handrick 1000 North Water Street, Suite 1700 Milwaukee, WI 53202 El YOU ARE COMMANDED to appear in the United States District court at the place, date, and time speci?ed below to testify in the above case. PLACE OF TESTIMONY COURTROOM DATE AND TIME YOU ARE COMMANDED to appear at the place, date, and time speci?ed below to testify at the taking of a deposition in the above case. PLACE OF DEPOSITION GODFREY KAHN, 8.0., 780 N. Water Street DATE AND TIME Milwaukee, WI 53202, PH: 414-273-3500 12/1/2011 10:00 am YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time speci?ed below (list documents or objects): Provide any and all documents used by you or members of the Legislature to draw the 2011 redistricting maps enacted as Act 43 and Act 44. PLACE See address listed above. DATE AND TIME 12/1/2011 10:00 am YOU ARE COMMANDED to permit inspection of the following premises at the date and time speci?ed below. PREMISES DATE AND TIME Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more of?cers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rule of Civil Procedure IsswE SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE 1 1/22/201 1 are. jfbr?tl/ 1G- p/9?47?7f/f IssU'IllG OFFICER-LS NAME, ADDRESS AND Attorney Rebecca Mason, GODFREY KAHN, 8.0., 780 N. Water Street, Milwaukee, WI 53202, Telephone: 414-273?3500, Email: (See Federal Rule of Civil oncedure 45 and on next page) 1 if action is pending in district other than district of issuance, state district under case number. Case Filed 12/27/11 Page 3 of 13 Document 89-4 A088 (Rev 1397] 2) PROOF OF SERVICE DATE PLACE SERVED SERVED ON (PRINT NAME) MANNER OF SERVICE SERVED BY (PRINT NAME) TITLE DECLARATION OF SERVER I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on DATE SIGNATURE OF SERVER ADDRESS OF SERVER Federal Rule of Civil Procedure 45 and as amended on December 1, 2007 PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction which may include lost earnings and reasonable attorney's fees on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, ortangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises or to producing electronically stored information in the form or forms requested, The objection must be served before the earlier of the time speci?ed for compliance or 14 days after the subpoena is served lfan objection is made, the following rules apply: At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from signi?cant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: fails to allow a reasonable time to comply; (ii) requires a person who is neither a party not a party's of?cer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person except that, subject to Rule the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: disclosing a trade secret or other con?dential research, development, or commercial information; (ii) disclosing an unrctained expert's opinion or information that does not describe speci?c occurrences in dispute and results from the expert's study that was not requested by a party; or a person who is neither a party nor a party?s of?cer to incur substantial expense to travel more than 100 miles to attend trial (C) Specifying Conditions as an Alternative. In the circumstances described in Rule the court may, instead of quashing or modifying a subpoena, order appearance or production under speci?ed conditions if the serving party: shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. Dumas IN RESPONDING TO A SUBPOENA. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organiae and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Speci?ed. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) lnaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identi?es as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information ofthe claim and the basis for it. After being noti?ed, a party must return, sequester, or destroy the speci?ed information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being noti?ed; and may present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. CONTEMPT. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule Case Filed 12/27/11 Page 4 of 13 Document 89-4 Godfrey Kahn, 8.0 One East Main Street 11-22-2011 HANDRICK, JOE 53783 0 5 3 7 8 3 Madison, WI 53703 DATE INVOICE CLIENT MATTER GL DESCRIPTION AMOUNT 11?22-11 11112262 010175-0001 FEE 42.00 GOdfrey 8? Ka_hn, S-C- DETACH AND RETAIN THIS STATEMENT 53783 0 5 3 7 8 3 One East Mam Street THE ATTACHED CHECK IS IN PAYMENT OF ITEMS DESCRIBED BELOW. Madison WI 53703 IF NOT CORRECT, PLEASE NOTIFY us NO RECEIPT DESIRED, IN VOICE If GL DESCRIPTION 11-22?11 11112262 010175-0001 FEE 42.00 THE BACK OF THIS DOCUMENT CONTAINS AN ARTIFICIAL WATEFIMAFIK - AT AN ANGLE VIEW GODFREY 053783 One East Main Street MARSHALL ILSLEY BANK Madison, WI 53703 MILWAUKEE, WI 53202 123 750 VOID AFTER 90 DAYS PAY FORTY-TWO AND 00/100 DATE AMOUNT To 11-22-2011 42.00 THE ORDER JOE HANDRICK OF 1000 NORTH WATER STREET, SUITE 1700 MILWAUKEE, WI 53202 1; Case Pied??i?i?? Pa?ela'of 13 Document 89-4 ONE EAST MAIN STREET, SUITE 500 POST OFFICE BOX 2719 MADISON, WISCONSIN 53701-2719 TEL- 608.257.3911 FAX- 608.257.0609 - GKLAW COM Direct: 414?287-951 2 rmason@gklaw.com November 22., 2011 VIA PROCESS SERVER Adam Foltz Wisconsin State Capitol 2 East Main Street, Room 211 West Madison WI, 53707 RE: Baldus et al. v. Brennan et aI. Eastern District of Wisconsin Case No. Dear Mr. Foltz: Enclosed and served upon you is a Subpoena requiring you to appear for a deposition scheduled for December 2, 2011 beginning at 9:00 am. at the law offices of Godfrey Kahn, 8.0., One East Main Street, Suite 500, Wisconsin 53703. The subpoena alse requires that you produce at the deposition any and all documents used by you or members of the Legislature to draw the 2011 redistricting maps enacted as Act 43 and Act 44. Please call me at (608) 257?3911 with any questions. GODFREY KAHN, S.C. Air-w- Rebecca Mason RKM :js Enclosures 7140045_1 OFFICES IN MILWAUKEE, MADISON, WAUKESHA, GREEN BAY AND APPLETON, WISCONSIN AND WASHINGTON, D.C. GODFREY KAHN, 8.0. IS A MEMBER OF A WORLDWIDE NETWORK OF INDEPENDENT LAW FIRMS Case Filed 12/27/11 Page 6 of 13 Document 89-4 88 17ti?1=' Issued by the UNITED STATES DISTRICT COURT Eastern District of Wisconsin 6* al- SUBPOENA IN A CIVIL CASE V. Members of the Wisconsin Government Accountability Board, each only in his of?cial capacity: MICHAEL BRENNAN, et al. Case Number:? TO: Adam Foltz Wisconsin State Capitol, 2 East Main Street, Room 211 West Madison WI, 53707 El YOU ARE COMMANDED to appear in the United States District court at the place, date, and time speci?ed below to testify in the above case. PLACE OF TESTIMONY COURTROOM DATE AND TIME El YOU ARE COMMANDED to appear at the place, date, and time speci?ed below to testify at the taking of a deposition in the above case. PLACE OF DEPOSITION GODFREY KAHN, 3.0., One East Main Street, Suite 500 DATE AND TIME Madison, WI 53703, PH: 608-257-3911 12/2/2011 9:00 am YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time speci?ed below (list documents or objects): Provide any and all documents used by you or members of the Legislature to draw the 2011 redistricting maps enacted as Act 43 and Act 44. PLACE See address listed above. DATE AND TIME 12/2/2011 9:00 am YOU ARE COMMANDED to permit inspection of the following premises at the date and time speci?ed below. PREMISES DATE AND TIME Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more of?cers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rule of Civil Procedure SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE 4am ?ctive/3k?, 11/22/2011 Issiliitfd ADDR?iiss AND PHONE NUMBER I Attorney Rebecca Mason, GODFREY KAHN, 8.0., One East Main Street, Suite 500, Madison, WI 53703, Telephone: (608) 257-3911, Email: rmason@gklaw.com (See Federal Rule of Civil Procedure 45 and on next page) If action is pending in district other than district of issuance, state district under case number. Case Filed 12/27/11 Page 7 of 13 Document 89-4 ?333 13:1,: 5L banana In a Civil Case {Page 2: PROOF OF SERVICE DATE PLACE SERVED SERVED ON (PRINT NAME) MANNER OF SERVICE SERVED BY (PRINT NAME) TITLE DECLARATION OF SERVER I declare under penalty ofperj ury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on DATE SIGNATURE OF SERVER ADDRESS OF SERVER Federal Rule of Civil Procedure 45 and as amended on December 1, 2007: PROTECTING A PERSON SUBJECT To A SUBPOENA. (I) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction which may include lost earnings and reasonable attorney's fees on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless atso commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time speci?ed for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's of?cer from signi?cant expense resulting from compliance. (3) Quashing or Modifying a Subpoena, (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party's of?cer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person except that, subject to Rule the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: disclosing a trade secret or other con?dential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information that does not describe speci?c occurrences in dispute and results from the expert's study that was not requested by a party; or a person who is neither a party nor a party's of?cer to incur substantial expense to travel more than 100 miles to attend trial (C) Specifying Conditions as an Alternative. In the circumstances described in Rule the court may, instead of quashing or modifying a subpoena, order appearance or production under speci?ed conditions if the sewing party: shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. DUTres IN RESPONDING To A SUBPOENA. (I) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Speci?ed. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) lnaccessible Electronically Stored Information. Eire person responding need not provide discovery of electronically stored information from sources that the person identi?es as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being noti?ed, a party must return, sequester, or destroy the speci?ed information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being noti?ed; and may present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. CONTEMPT. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty?s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule Case Filed 12/27/11 Page 8 of 13 Document 89-4 Godfrey Kahn, S.One East Main Street 11-22-2011 FOLTZ, ADAM 53782 Madison, WI 53703 INVOICE MATTER GL AMOUNT DATE 11-22-11 11112261 010175-0001 FEE 42.00 Godfrey 8? Kahn, 30- DBTACH AND RETAIN THIS STATEMENT 53732 One East Main Street THE ATTACHED CHECK IS IN PAYMENT OF ITEMS DESCRIBED BELOWMadison, WI 53703 IF NOT CORRECT, PLEASE NOTIFY US NO RECEIPT DESIRED. INVOICE I DESCRIPTION AMOUNT 11-22-11 11112261 010175-0001 FEE 42.00 THE BACK OF THIS DOCUMENT CONTAINS AN ARTIFICIAL WATEHMAFIK HOLD AT AN ANGLE TO VIEW GODFREY KAHNSIJ. 053782 One East Main Street MARSHALL ILSLEY BANK Madison, WI 53703 MILWAUKEE, WI 53202 12 5 750 VOID AFTER 90 DAYS PAY FORTY-TWO AND 00/100 DATE AMOUNT T0 11-22-2011 42.00 THE ORDER ADAM FOLTZ 0F WESCONSIN STATE CAPITOL 2 EAST MAIN STREET MADISON, 53702 {If Case 13 Document 89-4 ONE EAST MAIN STREET, SUITE 500 - POST OFFICE BOX 2719 MADISONI WISCONSIN 53701-2719 TEL- 608.257.3911 FAX- 608.257.0609 - GKLAW.COM Direct: 414?287-9512 ranason@gklaw.com November 22, 2011 VIA PROCESS Tad Ottman Wisconsin State Capitol 2 East Main Street, Room 212 West Madison WI, 53707 RE: Baldus et al. v. Brennan et at. Eastern District of Wisconsin Case No. 11-CV-562 Dear Mr. Ottman: Enclosed and served upon you is a Subpoena requiring you to appear for a deposition scheduled for December 2, 2011 beginning at 1:00 pm. at the law offices of Godfrey Kahn, 8.0, One East Main Street, Suite 500, Wisconsin 53703. The subpoena also requires that you produce at the deposition any and all documents used by you or members of the Legislature to draw the 2011 redistricting maps enacted as Act 43 and Act 44. Please call me at (608) 257-3911 with any questions. GODFREY KAHN, 8.0. if r" ?ay 4 44.9. Rebecca Mason Enclosures 7140107_1 OFFICES lN MILWAUKEE, MADISONI WAUKESHA. GREEN BAY AND APPLETON, WISCONSIN AND WASHINGTON, DC. GODFREY KAHN. 8.0. Is A MEMBER OF TERRALEXP A WORLDWIDE NETWORK OF INDEPENDENT LAW FIRMS. Case Filed 12/27/11 Page 10 of 13 Document 89-4 {Egg a Elvil Case Issued by the UNITED STATES DISTRICT COURT Eastern District of Wisconsin 9* at SUBPOENA IN A CASE V. Members Of the Wisconsin Government Accountability Board, each only in his official capacity: MICHAEL BRENNAN, et al. Case Number:? 11-CV-562-J PS T0: Tad Ottman Wisconsin State Capitol, 2 East Main Street, Room 212 West Madison WI, 53707 YOU ARE COMMANDED to appear in the United States District court at the place, date, and time speci?ed below to testify in the above case. PLACE OF TESTIMONY COURTROOM DATE AND TIME YOU ARE COMMANDED to appear at the place, date, and time speci?ed below to testify at the taking of a deposition in the above case. PLACE OF DEPOSITION GODFREY KAHN, 3.0., One East Main Street, Suite 500 DATE AND TIME Madison, WI 53703, PH: 608-257?3911 12/2/2011 1:00 pm YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time speci?ed below (list documents or objects): Provide any and all documents used by you or members of the Legislature to draw the 2011 redistricting maps enacted as Act 43 and Act 44. PLACE See address listed above. DATE AND TIME 12/2/2011 1:00 pm El YOU ARE COMMANDED to permit inspection of the following premises at the date and time speci?ed below. PREMISES DATE AND TIME Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more Of?cers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rule of Civil Procedure ISSU SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF 0R DEFENDANT) DATE 1 1/22/ 201 'l 5% {fawn I Af?rm?! 74\ ?/aun?ft% l' NAME, ADDRESS AND PHONE NUMBER Attorney Rebecca Mason, GODFREY KAHN, S.C., One East Main Street, Suite 500, Madison, WI 53703, Telephone: (608) 257-3911, Email: rmason@gklaw.com (See Federal Rule of Civil Procedure 45 and on next page) If action is pending in district other than district of issuance, state district under case number. Case Filed 12/27/11 Page 11 Of 13 Document 89-4 PROOF OF SERVICE DATE PLACE SERVED SERVED ON (PRINT NAME) MANNER or SERVICE SERVED BY (PRINT NAME) TITLE DECLARATION OF SERVER I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof ofService is true and correct. Executed on DATE SIGNATURE OF SERVER ADDRESS OF SERVER Federal Rule of Civil Procedure 45 and as amended on December 1, 2007: (C) PROTECTING A PERSON SUBJECT TO A SUBPOENA. Avoiding Undue Burden or Expense; Sanctions. A party or attomey responsible for issuing and sewing a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction A which may include lost earnings and reasonable attorney's fees on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time speci?ed for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: At any time, on notice to the commanded person, the sensing party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's of?cer from signi?cant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (1) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party not a party's of?cer to travel more than 100 miles from where that person resides, is employed, or regularly uansacts business in person 1 except that, subject to Rule the person may he commanded to attend a trial by traveling from any such place within the state where the trial is held; requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden, (B) When Permitted, To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena ifit requires: disclosing a trade secret or other con?dential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information that does not describe speci?c occurrences in dispute and results from the expert's study that was not requested by a party; or a person who is neither a party not a party's of?cer to incur substantial expense to travel more than 100 miles to attend trial (C) Specifying Conditions as an Alternative. In the circumstances described in Rule the court may, instead of quashing or modifying a subpoena, order appearance or production under speci?ed conditions if the sewing party: shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. EUTIES IN RESPONDING TO A SUBPOENA. Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Speci?ed. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identi?es as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must Show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in amanner that, without revealing information itselfprivileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information ofthe claim and the basis for it. After being notified, a party must return, sequester, or destroy the speci?ed information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being noti?ed; and may present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. CONTEMPT. The issuing court may hold in contempt a person who, having been served, fails wrthout adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule Case Filed 12/27/11 Page 12 of 13 Document 89-4 Fey 3? 53734 053784 One East Main Street 11-22-2011 OTTIVEAN, TAD Madison, WI 53703 DATE INVOICE CLIENT MATTER GL DESCRIPTION AMOUNT 11-22?11 11112260 010175-0001 FEE 42.00 Godfre Kahn, SC. 53784 OneEg?stMamsmet ANDRETEM 053784 Madison WI 53703 IF NOT CORRECT. PLEASE NOTIFY US NO RECEIPT DESIRED, I DATE INVOICE I MATTER GL It I DESCRIPTION AMUUNT 11-22-11 11112260 010175-0001 FEE 42.00 THE BACK OF THIS DOCUMENT CONTAINS AN ARTIFICIAL WATEHMAFIK HOLD AT AN ANGLE TO VIEW GODFREY 053784 One East Main Street MARSHALL ILSLEY BANK Madison, WI 53703 MILWAUKEE, 532? 12-5 75?0 VOID AFTER 90 DAYS PAY FORTY-TWO AND 00/100 DATE AMOUNT TO 11-22-2011 42.00 033%]; TAD OTTMAN OF WISCONSIN STATE CAPITOL 2 EAST MAIN STREET WI 53702 AUTHORIZEDSIGNATURE Case FIFeleQ/Bilii' EPHQE '13 of 13 Document 89-4 EXHIBIT 5 Case Filed 12/27/11 Page 1 of 6 Document 89-5 ’ GODFREY-’,"KAHN .o. ONE EAST MAIN STREET, SUITE 500 ¯ POST OFFICE BOX 2719 MADISON, WISCONSIN 53701-2719 TEL. 608.257.3911 FAX- 608.257.0609 WWWo GKLAW.COM Direct: 414-287-9512 rmason(~gklaw.com November 30, 2011 VIA PROCESS SERVER Tad Ottman Wisconsin State Capitol 2 East Main Street, Room 211 South Madison WI, 53707 RE: Baldus et al. v. Brennan et al. Eastern District of Wisconsin Case No. 11-CV-562 Dear Mr. Ottman: Enclosed and served upon you is a Subpoena requiring you to appear for a deposition scheduled for December 7, 2011 beginning at 1:00 p.m. at the law offices of Godfrey & Kahn, S°C., 780 N. Water St., Milwaukee, WI 53202. The subpoena also requires that you produce at the deposition any and all documents, electronically stored information, and tangible things used by you or members of the Legislature to draw the 2011 redistricting maps enacted as Act 43 and Act 44. Please call me at (608) 257-3911 with any questions. GODFREY & KAHN, SIC. Rebecca Kathryn Mason RKM:js Enclosures 7161889_1 OFFICES IN MILWAUKEE, MADISON, WAUKESHA, GREEN BAY AND APPLETON, WISCONSIN AND WASHINGTON, D.C. GODFREY & KAHN, S.C. IS A MEMBER OF TERRALEX,~ A WORLDWIDE NETWORK OF INDEPENDENT LAW FIRMS Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 2 of 6 Document 89-5 ~AO88 (Rev. 12/07) Subooena in a Civil Case Issued by the UNITED STATES DISTRICT COURT Eastern District of Wisconsin ALVIN BALDUS, et al. SUBPOENA IN A CIVIL CASE V. Members of the Wisconsin Government Accountability Board, each only in his official capacity: MICHAEL BRENNAN, et al. TO: [] Case Number:1 11-CV-562-JPS Tad Ottman Wisconsin State Capitol, 2 East Main Street, Room 211 South Madison WI, 53707 PH: 608-266-5660 YOU ARE COMMANDED to appear in the United States District .court at the place, date, and time specified below to testify in the above case. PLACE OF TESTIMONY I COURTROOM IDATE AND TIME I 1~" YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. PLACE OF DEPOSITION GODFREY & KAHN, S.C., 780 N. Water St., Milwaukee, Wl 53202. The I DATE AND TIME 12/7/2011 1:00 pm deposition will be recorded by stenographic and audiovisual means. I I~" YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects): Provide any and all documents, electronically stored information, and tangible things used by you or members of the Legislature to draw the 2011 redistricting maps enacted as Act 43 and Act 44. PLACE See address listed TIME IDATE AND12/712011 1:00 pm above. [] YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. PREMISES ] DATE AND TIME I Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rule of Civil Procedure 30(b)(6). ISSUIN.O’I:~FICER’S SIGNA~ AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) ] DATE ISS’UING OFFICER’S NAME, ADDRESS AND PHONE NUMBER/ Attorney Rebecca Kathryn Mason, GODFREY & KAHN, S.C., One East Main Street, Suite 500, Madison, WI 53703, Telephone: (608) 257-3911, Email: rmason@gklaw.com (See Federal Rule of Civil Procedure 45 (c), (d), and (e), on next page) ~ If action is pending in district other than district of issuance, state district under case number Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 3 of 6 Document 89-5 AO88 (Rev 12/07) Subnoena in a Civil Case (Pa~e 2) PROOF OF SERVICE DATE PLACE SERVED SERVED ON (PRINT NAME) MANNER OF SERVICE SERVED BY (PRINT NAME) TITLE DECLARATION OF SERVER I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on DATE SIGNATURE OF SERVER ADDRESS OF SERVER Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December l, 2007: (¢) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction -- which may include lost earnings and reasonable attorney’s fees -- on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the in spection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the patty or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises-- or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time speci fled for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer flora significant expense resulting fiom compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party’s officer to travel more than t00 miles fi-om where that person resides, is employed, or regularly transacts business in person -- except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Perlmtted To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results fi’om the expert’s study that was not requested by a party; or (iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (d) DUTIES IN RESPONDING TO A SUBPOENA. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information flom sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. ff that showing is made, the court may nonetheless order discovery fi-om such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C)~ The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (e) CONTEMPT. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty’s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii). Case 2:11-cv-00562-JPS-DPW-RMD Filed 12/27/11 Page 4 of 6 Document 89-5 ?gmw Case -O-0562 JPS- DPW- RMD Filed 12/27/11 Page 5 of 6 Document 89- 5 pwab