Attorneys in a state redistricting case Tuesday argued over whether or not the GOP’s top, now deceased mapmaker’s personal and sensitive documents should be inspected by everyone or filtered out altogether.
More details were also brought to light during the hearing about how the late Thomas Hofeller’s daughter came to produce his hard drives and thumb drives to the plaintiffs in Common Cause v. Lewis.
Attorneys for the plaintiffs, Common Cause, the North Carolina Democratic Party and several individual voters, sent a subpoena to Hofeller’s estate after his death asking for his work related to 2011 and 2017 redistricting in North Carolina. The estate did not have any responsive documents, and Lizon later reached out directly to the plaintiffs.
“[She said] her desire to make these materials available was also shared by her mother, who is Dr. Hofeller’s widow,” said Stanton Jones, an attorney with Arnold & Porter, representing the plaintiffs.
The hearing Tuesday was telephonic — Judge Paul Ridgeway was there presiding, but Judges Alma Hinton and Joseph Crosswhite, as well as the attorneys involved with the case, called in to the courtroom at the Wake County Courthouse.
An initial inventory of the 75,000+ documents Lizon turned over showed that 1,0001 appeared to be sensitive, having to do with Hofeller’s medical, tax or personal family information. The plaintiffs asked the court to filter those documents out to ensure Hofeller’s privacy before making copies to the state and legislative defendants.
The state defendants did not object, but the legislative defendants and interveners in the case did.
“We have a concern that there’s not just personal information in these 76,000 files, but there are likely attorney client workload products,” said Phil Strach, attorney for the lawmakers in the case. “The plaintiffs frankly should not be viewing or even looking at [them].”
Strach also raised a red flag about Lizon coming into possession of the documents and questioned if it was legal. He told the court he would like all the documents to be returned to Hofeller’s estate to protect his interests.
He later explained that Lizon and Hofeller were estranged and said he understood his widow to be institutionalized and there to be ongoing litigation related to her competency.
Jones responded that the widow was specifically not declared incompetent and said it was entirely speculative for anyone to suggest there is anything improper about Hofeller’s daughter’s possession of his documents. He added that if parties in the case had concerns about it, they should have raised them when they were notified that she would be subpoenaed, or when they were notified she responded to the subpoena — both occurrences took place in February and March.
“We made an attempt to be sensitive in these issues and our treatment in all of these materials,” Jones added.
Exactly what the hard drives and thumb drives contain was not made clear at the hearing, other than Strach mentioning a couple times that they included “Hofeller’s privileged work from many, many states over years and years.”
Other issues the court took up were whether Strach was properly responding to plaintiff requests for discovery and whether the legislative defendants should be granted a two-week extension to file expert reports. All matters were taken under advisement by the three-judge panel for a later decision. The trial is set for July 15.