The battle over deceased GOP mapmaker Thomas Hofeller’s digital files is heating up, and a three-judge panel will hear arguments today about why they should put the kibosh on plaintiffs’s possession of them in a state partisan gerrymandering case.
Geographic Strategies, a political consulting firm Hofeller co-founded, filed a motion in June in Common Cause v. Lewis claiming to be the true custodian and owner of many “highly confidential and privileged electronic files” produced without its knowledge by the mapmaker’s daughter, Stephanie Lizon Hofeller.
“Those files contain research and analysis that Geographic Strategies performed for its clients,” the motion states. “In addition, the documents reveal Geographic Strategies’ proprietary methods for analyzing and constructing redistricting maps that the company considers its trade secrets.”
The company asked the court to designate the entirety of the “Hofeller files” as “highly confidential” under an existing protective order to protect the confidentiality of its business records.
“The designation, if given promptly, would prohibit the plaintiffs and those in privity with them from continuing to publish Geographic Strategies’ confidential trade secrets to the world through leaking this data to the media,” the document states.
It should be noted that none of the Hofeller files have actually been made available “to the world.” The plaintiffs filed one document in Wake County Superior Court that alleged the files revealed lawmakers lied to a federal court during redistricting proceedings and misled the public about the process. But, the files themselves were not published, and lawmakers have said the plaintiffs are bluffing.
The plaintiffs did file some documents in an unrelated Census case that showed Hofeller secretly orchestrated the Trump Administration’s addition of a citizenship question on the 2020 Census. But, the information directly contested the Administration’s testimony at the U.S. Supreme Court in a case over the legality of the question.
Hofeller’s co-founder, Dalton Lamar Oldham, filed an affidavit with the court that states he is now the sole owner of Geographic Strategies. Oldham, an attorney from South Carolina, said he has a nationwide clientele of legislators, political parties, organizations and candidates whom he represents in the realm of election law.
The consulting firm was founded in 2011 — Oldham was president and Hofeller was treasurer. Representing clients in redistricting litigation, “a very fact intensive area of the law,” would not be possible without the assistance of a highly-skilled demographic expert and Oldham said he considers almost all of Hofeller’s work and files to be either attorney work product privileged, First Amendment protected or both.
“Dr. Hofeller’s files could and likely do contain hundreds of redistricting plans, emails, expert reports, commissioned studies for clients other than those concerned with the North Carolina redistricting case at issue in this case,” the affidavit states. “Although I am informed attorneys for the plaintiffs had issued a subpoena for Geographic Strategies, LLC prior to this controversy, I have never been served with the subpoena to produce documents in this case, was never provided the opportunity to undertake a review, and never consented to the production of any of its documents.”
If the court does not deem the Hofeller files highly confidential, Geographic Strategies asks in its motion to be declared the producing party of the documents so that it can designate which files should not be seen or shared.
It anticipates an argument from the plaintiffs that they should identify particular documents that constitute confidential trade secrets, privileged communications or work product, but says that would be frivolous because they don’t have access to the documents.
“Had Ms. [Lizon] Hofeller broken into the Geographic Strategies offices and stolen its documents to deliver to plaintiffs, no court would entertain an objection that the company could not specifically identify the precise documents that were stolen,” states a footnote in the motion. “This situation is no different.”
Lizon Hofeller reported getting her father’s documents from her mother and reached out to Common Cause NC to offer them up for the court case. Attorneys subsequently filed a subpoena to get the documents, which none of the defendants objected to at the time.
The three-judge panel today will also hear a motion from the legislative defendants asking to exclude filed and materials produced by Lizon Hofeller, though that court document has not yet been made available to the public. They will also hear a motion from the plaintiffs asking for direction from the court in the case.
Read the full Geographic Strategies motion below and Oldham’s affidavit. Follow reporter Melissa Boughton on Twitter for live updates from the hearing, which starts at 10 a.m.