Baldus et al v. Brennan et al

Filing 313

ORDER by Circuit Judge Diane P. Wood, District Judge J.P. Stadtmueller, and District Judge Robert M. Dow, Jr., on 4/30/13: denying 301 Plaintiffs' Motion requesting an award of interim payment of costs; and, granting 305 the Legislature's Motion for Leave to File Excess Pages. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALVIN BALDUS, CARLENE BECHEN, ELVIRA
BUMPUS, RONALD BIENDSEIL, LESLIE W DAVIS,
III, BRETT ECKSTEIN, GLORIA ROGERS, RICHARD
KRESBACH, ROCHELLE MOORE, AMY RISSEEUW,
JUDY ROBSON, JEANNE SANCHEZ-BELL,
CECELIA SCHLIEPP, TRAVIS THYSSEN, CINDY
BARBERA, RON BOONE, VERA BOONE,
EVANJELINA CLEERMAN, SHEILA COCHRAN,
MAXINE HOUGH, CLARENCE JOHNSON,
RICHARD LANGE, and GLADYS MANZANET

Case No. 11-CV-562
JPS-DPW-RMD

Plaintiffs,
TAMMY BALDWIN, GWENDOLYNNE MOORE and
RONALD KIND,
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.
VOCES DE LA FRONTERA, INC., RAMIRO VARA,
OLGA VARA, JOSE PEREZ, and ERICA RAMIREZ,
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.

Case No. 11-CV-1011
JPS-DPW-RMD

ORDER

April 30, 2013
Before WOOD, Circuit Judge, DOW, District Judge, and STADTMUELLER,
District Judge
This Court previously ordered that the plaintiffs be allowed to
conduct a thorough forensic examination of a number of computers used in
the redistricting process in order to determine whether relevant materials,
otherwise subject to pretrial discovery, had in fact been deleted from those
computers. (Docket #300). On April 18, 2013, the plaintiffs filed a motion
requesting that the Court require that some other entity or entities—be it the
Legislature; the Legislature’s prior counsel, Michael Best & Friedrich LLP
(“Michael Best”); the defendants; or another—be required to pay the costs
associated with the ongoing investigation. (Docket #301). To this point, the
investigation appears to confirm that many files were indeed deleted from
the computers, but has not yet conclusively turned up any evidence of bad
faith or established that relevant and important documents were improperly
withheld. (Docket #301, at 2–3). The investigation has been expensive, and is
likely to require substantial amounts of additional resources. (Docket #301,
at 3–4). Thus, the plaintiffs have requested that the Court shift the burden to
some other party to pay those expenses on an interim basis. (Docket #301, at
4). The Court has received responses from the Legislature and from Michael
Best, both of which object to the shifting of costs. (Docket #304, #306). Having
considered each of these submissions, the Court is obliged to deny the
plaintiffs’ motion.
Imposition of interim fees on any adverse party would be
inappropriate. While the Court is fully aware of and concerned with the
seemingly vast amount of file deletions that the plaintiffs’ investigation has
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uncovered, there has not yet been any showing that the files were either
deleted in bad faith or would otherwise have been pertinent to the fact
finding process in the underlying action. Thus, the Court is wary of requiring
any other party to foot the plaintiffs’ bill. To be sure, in the ordinary course
of litigation—which, admittedly, this is not—each party would bear its own
costs associated with its investigation and necessary experts and, as part of
evaluating its case, make a value judgment as to whether the potential
outcome justifies the costs associated with its investigation. Similarly, here,
the plaintiffs face the difficult choice of whether to accept what has been
uncovered thus far and file any final report and motions in reliance thereon
or to pay the additional costs required to continue their investigation in
hopes that some additional information is uncovered.
At the same time, it should be noted that the Court is not foreclosing
any future monetary award to the plaintiffs. Rather, at this juncture, the
Court is simply denying the plaintiffs’ motion to be granted interim costs.
After the parties have submitted their final report on the investigation
together with any additional motions—which remain due on May 10, 2013,
and May 24, 2013, respectively (Docket #300)—the Court will issue such
further orders as deemed appropriate.
Accordingly,
IT IS ORDERED that the plaintiffs’ motion requesting an award of
interim payment of costs (Docket #301) be and the same is hereby DENIED;
and
IT IS FURTHER ORDERED that, given the plaintiffs’ consent (Docket
#312), the Legislature’s motion for leave to file excess pages (Docket #305) be
and the same is hereby GRANTED.

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