Multiple Documents - Moritz College of Lawmoritzlaw.osu.edu/electionlaw/litigation/documents/LULACWiscDec...Multiple Documents Part Description ... Expedited Non-Dispositive Motion

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League of United Latin American Citizens (LULAC) of Wisconsin et al v. Deininger et al, Docket No. 2:12-cv-00185 (E.D. Wis. Feb

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

LEAGUE OF UNITED LATIN AMERICAN

CITIZENS (LULAC) OF WISCONSIN, et al.,

Plaintiffs,

v. Case No. 12-CV-0185

DAVID G. DEININGER, et al.,

Defendants.

DECLARATION OF DANIEL P. LENNINGTON

I, Daniel P. Lennington, pursuant to 28 U.S.C. § 1746, hereby declare as

follows:

1. I am one of Defendants’ attorneys in the above-captioned matter. I

make this Declaration based on my own personal knowledge and based upon the

sources described.

2. I make this Declaration in support of Defendants’ Civil Local Rule 7(h)

Expedited Non-Dispositive Motion to Exclude the Testimony of John R. Mas.

3. Attached hereto as Exhibit 1 is a true and correct copy of an e-mail

received from Charles G. Curtis, Jr., one of Plaintiffs’ attorneys, dated October 22,

2013, which attaches Plaintiffs’ Supplemental Disclosures Pursuant to

FRCP 26(e)(1)(A).

Case 2:12-cv-00185-LA Filed 10/31/13 Page 1 of 3 Document 96

- 2 -

4. Attached hereto as Exhibit 2 is a true and correct copy of an e-mail I

sent to Plaintiffs’ attorneys, wherein I requested copies of communications between

Leland Beatty and Ethnic Technologies.


communication between Leland Beatty and Karen Sinisi of Ethnic Technologies,

wherein on June 5, 2012, Mr. Leland inquires of information.



wherein on June 11, 2012, Mr. Beatty inquires of an expert witness.



wherein on June 13, 2012, Mr. Beatty again inquires of an expert witness.


communication between Leland Beatty and Candace Kennedy of

Ethnic Technologies, wherein on August 27, 2013, Mr. Beatty explains the

importance of an expert witness.


communication between Leland Beatty and Candace Kennedy of

Ethnic Technologies, wherein on September 30, 2013, Ms. Kennedy provides the

name John Mas.


communication between Carl S. Nader, one of Plaintiffs’ attorneys, and John Mas,

which includes the executed retainer agreement.


- 3 -

11. Attached hereto as Exhibit 9 is an excerpt of the unofficial draft of the

October 30, 2013, deposition of Leland Beatty.

12. I declare under penalty of perjury that the foregoing is true and

correct.

Dated this 31st day of October, 2013.

s/Daniel P. Lennington_____

DANIEL P. LENNINGTON


Lennington, Daniel P.

From: Sent: To:

Curtis, Jr., Charles G. [[email protected]] Tuesday, October 22, 2013 4:27 PM Kawski, Clayton P.

Cc: Lazar, MariaS.; Lennington, Daniel P.; Ulin, John C.; Nadler, CarlS.; Sean Young; [email protected]; [email protected]; [email protected]; Steiner, Neil; Laughlin McDonald; Dale Ho; Prine, Diane; [email protected]

Subject: Plaintiffs' Supplemental Disclosures-- No. 12-CV-185-LA Attachments: 64963966_1.pdf

Dear Mr. Kawski,

On behalf of the plaintiffs in No. 12-CV -185-LA, I enclose a document titled Plaintiffs' Supplemental Disclosures Pursuant to FRCP 26(e)(l)(A). As discussed in the enclosed document, all of the individuals disclosed in the document have already been identified in Plaintiffs' Civil L. R. 16(c) Pretrial Report or in the supplemental email that I sent to you on Oct. 19,2013, which identified two witnesses whose names had been inadvertently omitted from the Pretrial Report filed the previous day.

Sincerely,

Chuck Curtis

Charles G. Curtis, Jr.

Arnold & Porter LLP 16 North Carroll Street Suite 620 Madison, Wisconsin 53703

Madison Office Telephone: +I 608 257 1922 D.C. Office Telephone: +I 202 942 6462 Cell Phone:+ I 608 235 2651 [email protected] www.arnoldporter.com

------·--

lLS -; reasury Clrculnr 230 Notice

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i hrc-; cornn1unica1rott muy contwn irtformnUon l11at ts confidential or· exempt frorn disclosure_ If you ar·e not the intended recrp•crrt. please note that nny drssenw1ation. distr·tbution. or copying of thts stnctly pmhibitecL /.J.nyone who mceives this message in error should the sender imrnedrc~ioly by telephone or by mfurn c>moii a11d delete it from his or her computer·.

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1 EXHIBIT 1 Case 2:12-cv-00185-LA Filed 10/31/13 Page 1 of 6 Document 96-1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF WISCONSIN; CROSS LUTHERAN CHURCH; MILWAUKEE AREA LABOR COUNCIL, AFL-CIO; and WISCONSIN LEAGUE OF YOUNG VOTERS EDUCATION FUND;

Plaintiffs,

V. Case No. 12-CV-00185-LA

JUDGE DAVID G. DEININGER, JUDGE MICHAEL BRENNAN, JUDGE GERALD C. NICHOL, JUDGE THOMAS BARLAND, JUDGE THOMAS CANE, KEVIN J. KENNEDY, and NATHANIEL E. ROBINSON, all in their official capacities,

Defendants.

PLAINTIFFS' SUPPLEMENTAL DISCLOSURES PURSUANT TO FRCP 26(e)(l)(A)

Pursuant to Rule 26(e)(l)(A) of the Federal Rules of Civil Procedure, Plaintiffs League of

United Latin American Citizens (LULAC) of Wisconsin, Cross Lutheran Church, Milwaukee

Area Labor Council, AFL-CIO, and Wisconsin League of Young Voters Education Fund

(collectively, "Plaintiffs") make the following supplemental disclosures. All of the individuals

disclosed below have already been identified in Plaintiffs' Civil L. R. 16(c) Pretrial Report or in

the supplemental email from Charles Curtis to Clayton Kawski dated Oct. 19, 2013, which

identified two witnesses whose names had been inadvertently omitted from the Pretrial Report

filed the previous day. These supplemental disclosures are based on information reasonably

available to Plaintiffs at this time. Plaintiffs may further amend or supplement these disclosures

based upon their continuing investigation and discovery.

Case 2:12-cv-00185-LA Filed 10/31/13 Page 2 of 6 Document 96-1

i. Additional Individuals Likely to Have Discoverable Information

The following individuals have information about their own efforts to obtain the

identification required by Act 23 in order to vote and the burdens they have encountered in

seeking that identification; the substantial time and expense they have incurred in attempting to

obtain the forms of identification required to vote under Act 23; and the denial and abridgement

of these individuals' right to vote caused by Act 23:

I. Shamir Mahoney 3006 West Pierce St. Milwaukee, WI 53215

2. David Harris 2673 N. 29th St. Milwaukee, WI 53210

3. Rickey Davis 3017 W. Highland Blvd. Apt. 108 Milwaukee, WI 53208

4. Roberta Lyles 3432 N. 3rd Street Milwaukee, WI 53212

5. Shirley Grandberry 1649 35th St, #208 Milwaukee, WI 53215

6. Angela McClinton 9200 W. Burch Milwaukee, WI 53225

7. Lazaro Matheu 1028 S. 19'h ST Milwaukee, WI 53204

8. Orlando Martinez 828 S 19th St Apt 5 Milwaukee WI 53221

2 Case 2:12-cv-00185-LA Filed 10/31/13 Page 3 of 6 Document 96-1

9. Martha Spencer 2900 N 37th St Milwaukee, WI 53210

10. Tommy Wallace 3310 W McKinley Blvd Milwaukee, WI 53208

11. Abigail Martinez 2344 S 18th St Milwaukee, WI 53215

12. Carmencita Jackson 2749A North 25th St. Milwaukee, WI 53206

13. Gloria Moore 3278 N. 17th St. Milwaukee, WI 53206

14. Martine Guerrero c/o Charles Curtis Arnold & Porter LLP 16 N. Carroll St., Suite 620 Madison, WI 53703

In addition, the following individuals have information about their efforts to assist other

people to obtain the identification required by Act 23 in order to vote and the burdens

encountered in seeking that identification; their observations as to the substantial time and

expense that must be incurred by many people in attempting to obtain the forms of identification

required to vote under Act 23; the special burdens and challenges faced by voters of color in

attempting to obtain the identification required by Act 23 in order to vote; and the denial and

abridgement of the right to vote caused by Act 23:

15. Ray Sznewski 2487 South 99th St. Milwaukee, WI 53227


16. Sheryl Egan 9230 W. Park Hill Ave. Milwaukee, WI 53226

17. Reverend Willie E. Brisco President, MICAH 1927 N. 4th St. St. Francis Capuchin Center Milwaukee, WI 53212

18. Cannen Cabrera 1220 West Scott Street Milwaukee, WI 53204

19. Rep. JoCasta Zamarripa Room 320 West State Capitol P.O. Box 8953 Madison, WI 53708

20. Walter Garron 2001 N. Mayfair Road Milwaukee, WI 53226

Rep. Zamarripa also has knowledge about the passage of Act 23 and the information before the

legislature at the time of passage.

In addition, the following individual, a former employee of Ethnic Technologies, will

provide factual testimony as to the methods that Ethnic Technologies uses to categorize

individuals by ethnic background and the accuracy and market acceptance of Ethnic

Technologies' work:

21. John R. Mas 593 Belmont Ave. Haledon, NJ 07508

* * * *

Plaintiffs reserve the right to supplement this disclosure, if necessary, in accordance with

FRCP 26(e). Moreover, Plaintiffs expressly reserve all rights to object to the use, relevance or


admissibility into evidence of this disclosure and/or the testimony of any of the disclosed

potential witnesses on any proper ground. Plaintiffs do not waive or intend to waive, but rather

intend to preserve and do preserve their right to assert any objections to which they may be

entitled to assert under the Federal Rules of Evidence, the Federal Rules of Civil Procedure, or

any other privileges that may exist under federal or state statutory or common law, including, but

not limited to, the attorney-client privilege and the attorney work product doctrine.

Dated: October 22, 2013

Penda D. Hair James Eichner Denise D. Lieberman Leigh M. Chapman Advancement Project Suite 850 1220 L Street, N.W. Washington, D.C. 20005 Phone: (202) 728-9557 Email: [email protected] [email protected] [email protected] [email protected]

5

Respectfully submitted,

/s Charles G. Curtis Jr. Arnold & Porter LLP Suite 620 16 North Carroll Street Madison, Wisconsin 53703 Phone: (608) 257-1922 Email: [email protected]

John C. Ulin Arnold & Porter LLP 44th Floor 777 South Figuero Street Los Angeles, California 90017 Phone: (213) 243-4000 Email: [email protected]

CarlS. Nadler Arnold & Porter LLP 555 Twelfth Street, N.W. Washington, D.C. 20004 Phone: (202) 942-6130 Email: [email protected]



From: Sent: To: Cc: Subject:

Chuck and Nathan:

Lennington, Daniel P. Wednesday, October 23, 2013 12:04 PM Lennington, Daniel P.; 'Foster, Nathan D.'; 'Uiin, John C.' 'Curtis, Jr., Charles G.'; 'Nadler, CarlS.'; Kawski, Clayton P. RE: Beatty Depo

I have some additional requests now that I've reviewed Chuck's supplemental disclosure dated yesterday that lists Mr. John Mas of Ethnic Technologies. (Your 10/18 witness list did not identify him as an former Ethnic employee.)

I do not believe it is your intention, but please confirm that Mr. Mas will NOT be providing expert witness testimony at trial. The disclosure deadlines have long since passed.

Also, in light of Mr. Beatty's reliance on Ethnic, please provide:

1. Any and all communications between Mr. Beatty and Ethnic (including Mr. Mas) regarding this case (including what was provided to Ethnic, what was received, what work was requested);

2. Any and all communications between any lawyer on your side and Ethnic and/or Mr. Mas.

Please provide this information by 1:30 Central on Monday, 10/28.

Dan

DANIEL P. LENNINGTON Assistant Attorney General 17 West Main Street Madison, Wisconsin 53707-7857 Desk: 608.267.8901 Cell: 608.224.9837 Fax: 608.267-2223 [email protected]

From: Lennington, Daniel P. Sent: Wednesday, October 23, 2013 9:36AM To: 'Foster, Nathan D.'; Ulin, John C. Cc: Curtis, Jr., Charles G.; Nadler, Carl 5.; Kawski, Clayton P. Subject: RE: Beatty Depo

Thanks, Nathan. Do you have a contact at Dechert-Austin who might be able to recommend a court reporter? Also, since your phrase "by Monday (10/28)" is a little ambiguous, I'd like to request a copy of this updated report by 1:30pm Central time on Monday. This would be 48 hours before the deposition and I think that is fair, especially in light of the

significant changes in the numbers.

From: Foster, Nathan D. [mailto:[email protected]] Sent: Tuesday, October 22, 2013 12:16 PM To: Lennington, Daniel P.; Ulin, John C.


Cc: Curtis, Jr., Charles G.; Nadler, CarlS.; Foster, Tracy M.; Kawski, Clayton P. Subject: RE: Beatty Depo

Dan--

Regarding the Beatty Deposition on 10/30:

1) We would like to start the deposition at 1:30pm on 10/30. 2) For telephonic appearances we can use the following dial-in:

USA-dial-in: 866-802-1366 Participant passcode: 39416754

3) We anticipate the location will most likely be at Dechert's office in Austin (300 W 6th St #201 0, Austin, TX 78701) but are confirming.

4) Yes, we can commit to sending you the updated report by Monday (10/28), as you requested.

From: Lennington, Daniel P. [mailto:[email protected]] Sent: Monday, October 21, 2013 12:25 PM To: Lennington, Daniel P.; Ulin, John C. Cc: Foster, Nathan D.; Curtis, Jr., Charles G.; Nadler, Carl S.; Foster, Tracy M.; Kawski, Clayton P. Subject: RE: Beatty Depo

Plaintiffs- I still have not heard on this (3'' try):

(1) What is the time and location of the Beatty telephone deposition? And what is the call-in number?

(2) When will he send me his updated report?

Dan

From: Lennington, Daniel P. Sent: Thursday, October 17, 2013 10:20 AM To: Lennington, Daniel P.; '[email protected]' Cc: '[email protected]'; 'Curtis, Jr., Charles G.'; 'Nadler, Carl S.'; Foster, Tracy M.; Kawski, Clayton P. Subject: RE: Beatty Depo

Hello all: Haven't heard back on this. Can you let me know the time and location so I can send a court reporter? Also the

call-in information?

From: Lennington, Daniel P. Sent: Monday, October 14, 2013 3:36PM To: [email protected] Cc: '[email protected]'; Curtis, Jr., Charles G.; Nadler, Carl S.; Foster, Tracy M.; Kawski, Clayton P. Subject: Beatty Depo

Hello John-

I'm covering Leland Beatty's deposition on October 30"'. I've reviewed his prior deposition and expert report, and I think

that just a telephone deposition is necessary.

A few questions: Can we set this for 1:30pm Central Time? Can you please email me the location so I can send a court reporter? Can you provide the telephone number for the call-in, or if you'd like others to join in, a conference line? Finally, can I expect his expert disclosure a few days in advance (at least by Monday morning before)?


Thanks in advance,

DANIEL P. LENNINGTON

Assistant Attorney General 17 West Main Street Madison, Wisconsin 53707-7857 Desk: 608.267.8901 Cell: 608.224.9837 Fax: 608.267-2223 [email protected]


From: karen sinisi <[email protected]> Date: June 5, 201211:14:46AM COT To: Leland Beatty <[email protected]> Subject: Re: Wisconsin Ethnic IDs

Leland, I am reaching out to some higher powers here to see if I can get help for you, give me a bit over here,

Best, Karen

On 6/5/2012 11:24 AM, Leland Beatty wrote: The e-tech match helped us make our case, and now the legal process requires me to defend the accuracy of the match.

Do you have anything typically used by expert witnesses to explain why the Ethnic Technologies match reaches its high level accuracy?

Are there previous court cases where Ethnic Technologies matches have been accepted as evidence?

Thanks for your help.

Leland 512/619-8732

On Apr 11, 2012, at 8:21AM, karen sinisi wrote:

Hello Leland, Thanks for reaching out to us. We can certainly help you with the identification of ethnicity on this data.

Our process identifies ethnicity, language, Hispanic Country of Origin, religion and group (ie. Western European, South Asian etc.)

Cost is $12 per thousand records so for a file of this size the cost would be $4,322.00

Our process will flag over 95% of the records, close to 100% with nice clean data. What we need in order for the process to work is full first and last name, address, city, state and zip+4.

If all the records do not have the +4 we can append them, as long as street address and city are present,

EXHIBIT 3 Case 2:12-cv-00185-LA Filed 10/31/13 Page 1 of 3 Document 96-3

Lastly, our process takes 24 hours from receipt of data,

Let me know how else I can help!

Best, Karen Sinisi Ethnic Technologies, LLC

On 4/11/2012 9:05AM, Rachel Wilhoit wrote: Sent to info

-------- Original Message -------Subject: Wisconsin Ethnic IDs Date: Tue, 10 Apr 2012 16:40:54 -0500 From: Leland Beatty <[email protected]> To: [email protected]

A group of folks including the ACLU, LULAC and others are challenging the Wisconsin voter id law, and have retained me to match Wisconsin voters against the driver's license and state-issued ID databases.

After completing the match, I have a list of 360,167 voters that did not match the state dllid lists. Ethnicity is included in the dl/id file, but not in the voter registration file, so I need to find a way to append ethnicity to the 360,167 voters that did not match.

Is this something I can do with your service? Do you have an estimate for what that might cost? For each voter, I have the state voter id number, first name, last name, address broken into parts as well as aggregated into two lines, county and zip (no city, although I plan to geocode the file this evening and can include city).

I've got a court deadline at the end of the week, so time is somewhat important. If you can tell me if this is possible, and give me a general idea of what it would cost, I would greatly appreciate it.

Thanks.

Leland 512/619-8732


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From: karen sinisi <[email protected]> Date: June 13, 2012 10:11 :09 AM COT To: Leland Beatty <[email protected]> Subject: Re: Wisconsin Ethnic IDs

Leland, Our methodology is based on predictive analytics, not on any personally identifiable information. This is not something we have ever done, and quite frankly since it is predictive I am not sure if it would actually help the case. We stand by our methodology, but involvement in a case such as this is not something we would readily do. I think that referencing the data I have sent you would be the best route for you to take.

Hope that helps,

Best, Karen

On 6/11/2012 5:59PM, Leland Beatty wrote: The group I'm working with would like to engage the appropriate person at Ethnic Technologies as an expert witness, purely to explain your method for race matching, and to establish the reliability of that method, and will compensate for time.

Is this something you can help me with?

Thanks,

Leland 512/619-8732

On Jun 5, 2012, at 11:51 AM, karen sinisiwrote:

Leland, We have NDA's in place and 3rd party proprietary information in virtually all of the encoding jobs we do. I cannot say whether or not there were prior court cases where our process was used. I can simply refer you to our methodology information, which I have attached.

Please let me know if there is any other way I can be of help,

Best, Karen

On 6/5/2012 11 :24 AM, Leland Beatty wrote:


The e-tech match helped us make our case, and now the legal process requires me to defend the accuracy of the match.




Leland 512/619-8732

On Apr 11, 2012, at 8:21 AM, karen sinisi wrote:




Our process will flag over 95% of the records, close to 100% with nice clean data. What we need in order for the process to work is full first and last name, address, city, state and zip+4.






-------- Original Message --------


Subject: Wisconsin Ethnic IDs Date: Tue, 10 Apr 2012 16:40:54 -0500 From: Leland Beatty <[email protected]> To: [email protected]

A group of folks including the ACLU, LULAC and others are challenging the Wisconsin voter id law, and have retained me to match Wisconsin voters against the driver's license and state-issued ID databases.

After completing the match, I have a list of 360,167 voters that did not match the state dllid lists. Ethnicity is included in the dllid file, but not in the voter registration file, so I need to find a way to append ethnicity to the 360,167 voters that did not match.



Thanks.

Leland 512/619-8732

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From: karen sinisi <[email protected]> Date: June 13, 2012 2:02:43 PM COT To: Leland Beatty <[email protected]> Subject: Re: Wisconsin Ethnic IDs

Leland, I will speak with our CEO. If necessary can we call you on the phone you have listed below?

Best, Karen

On 6/13/2012 2:50PM, Leland Beatty wrote: We really need an expert witness who can establish the credibility of your analytics. We will pay. We don't expect the expert witness to take sides, only to establish the reliability of the data.

Is someone there who can establish that credibility?

The contracting organization would be The Advancement Project. Kumiki Gibson, who was AI Gore's general counsel while he was vice president, is leading this project. It is a credible effort. Again, we don't need anyone to take sides, just to establish the validity of the match.

As I understand the process, your advantage is in not only maintaining databases of race-specific last names, but also race-specific first names. Research has shown this is a highly reliable process. I'm pretty sure that's about all the expert would need to explain.

Please let me know if there is someone there who can help.

Thanks,

Leland 512/619-8732

On Jun 13, 2012, at 10:11 AM, karen sinisi wrote:

Leland, Our methodology is based on predictive analytics, not on any personally identifiable information. This is not something we have ever done, and quite frankly since it is predictive I am not sure if it would actually help the case. We stand by our methodology, but involvement in a case such as this is not something we would readily do. I think that referencing the data I have sent you would be the


best route for you to take.

Hope that helps,

Best, Karen

On 6/11/2012 5:59 PM, Leland Beatty wrote: The group I'm working with would like to engage the appropriate person at Ethnic Technologies as an expert witness, purely to explain your method for race matching, and to establish the reliability of that method, and will compensate for time.

Is this something you can help me with?

Thanks,

Leland 512/619-8732

On Jun 5, 2012, at 11:51 AM, karen sinisi wrote:

Leland, We have NDA's in place and 3rd party proprietary information in virtually all of the encoding jobs we do. I cannot say whether or not there were prior court cases where our process was used. I can simply refer you to our methodology information, which I have attached.

Please let me know if there is any other way I can be of help,

Best, Karen

On 6/5/2012 11:24 AM, Leland Beatty wrote: Thee-tech match helped us make our case, and now the legal process requires me to defend the accuracy of the match.





Leland 512/619-8732

On Apr 11, 2012, at 8:21 AM, karen sinisi wrote:




Our process will flag over 95% of the records, close to 100% with n1ce clean data. What we need in order for the process to work is full first and last name, address, city, state and zip+4.






--------Original Message -------Subject: Wisconsin Ethnic IDs Date: Tue, 10 Apr 2012 16:40:54-0500 From: Leland Beatty <[email protected]> To: [email protected]

A group of folks including the ACLU, LULAC and others are challenging


the Wisconsin voter id law, and have retained me to match Wisconsin voters against the driver's license and state-issued ID databases.

After completing the match, I have a list of 360,167 voters that did not match the state dl/id lists. Ethnicity is included in the dllid file, but not in the voter registration file, so I need to find a way to append ethnicity to the 360,167 voters that did not match.



Thanks.

Leland 512/619-8732

This e-mail may contain confidential, proprietary, and/or privileged information. If you are not the intended recipient, or have received this e-mail in error,please notify the sender immediately and destroy this e-maii.Any unauthorized copying, disclosure or distribution of the material in this e-mail is strictly forbidden. <karens.vcf>


This e-mail may contain confidential,proprietary,and/or privileged information. If you are not the intended recipient, or have received this e-mail in error, please notify the sender immediately and destroy this e-maii.Any unauthorized copying, disclosure or distribution of the material in this e-mail is strictly forbidden. <8 _ 0 _Release Letter.pdf><karens. vcf>

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This e-mail may contain confidential,proprietary,and/or privileged information. If you are not the intended recipient, or have received this e-mail in error, please notify the sender immediately and destroy this e-maii.Any unauthorized copying, disclosure or distribution of the material in this e-mail is strictly forbidden.


From: Candace Kennedy <[email protected]> Date: August 27, 2013 7:03:28 AM COT To: Leland Beatty <[email protected]> Subject: Re: Ethnic Technologies Encoding

Leland, Of course we can do the file encoding for you .. As far as the trial the company has not changed it's policy. An option would be I could offer you my expertise as a non E-Tech employee but do it a consultant ..

Candace

We're now approaching trial on the voter id matter, and I wanted to check in on your current policy. Expert validation from Ethnic Technologies would obviously be of great help, and we would expect to fully compensate for the expertise. If your policy is the same, I will likely do a telephone survey of a sample from the ethnicity-matched records, asking respondents to self-identify ethnicity, projecting accuracy by comparing the self-identification against the Ethnic Technologies match. If you know of a better method, or of an expert who can credibly address the accuracy of the match, your feedback would be greatly appreciated.

In any case, I should have the new Wisconsin voter and driver's license/id files within the next week, and after doing a new match, I will have a new unmatched list ready for to submit I would expect it to be fairly small, likely about 25,000 records, but I won't know until I've matched the two Wisconsin files. Should I work with you on that project?

Feel free to call any time.

Thanks.

Leland 512/619-8732

On Aug 26, 2013, at 12:36 PM, Candace Kennedy wrote: Leland, I was given your information by Karen Sinisi about a possible file encoding opportunity you may have.

My name is Candace Kennedy-Hess I'm a consultant working for Ethnic Technologies.

Please let me know the best time and number to contact you in reference to the phone message you left for Karen last week.


I look forward to speaking with you ..

Thank you, Candace

<39-E-Tech-Logo-5-09.gif>

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From: Candace Kennedy <[email protected]> Date: September 30, 2013 1 :01 :34 PM COT To: "Nadler, CarlS." <[email protected]>, Leland Beatty <[email protected]> Subject: Re: Wisconsin

Gentleman I do have someone who can step in and help you he was one of my employees and has written papers on the accuracy and methodologies of the data in question.

John Mas is his name

Phone: 973-341-4517

EM: John Mas: [email protected]>

I gave him a heads up as to our discussions.

Best Regards, Candace

On 9/30/2013 1:18 PM, Nadler, Carl S. wrote:

Candace,

Thanks. I'm so sorry to hear about both things.

Carl

From: Candace Kennedy [mailto:[email protected]] Sent: Monday, September 30, 2013 1:19 PMTo: Nadler, Carl S.Subject: Re: Wisconsin

Carl, I'm sorry I have not gotten back to you sooner, 2 things have consumed my time as of late one the founder of our company passed away suddenly and two my 29 year old daughter was diagnosed with stage 4 breast cancer and at present I do not have the time or energy to devote to any other issues or projects. I need to focus on her and my family right now ..


Best Regards, Candace

On 9/30/2013 12:51 PM, Nadler, CarlS. wrote:

Hi Candace,

Just checking in with you. Would love to finalize your retainer and

start working with you. Please let me know when we can go ahead

with that, ol<?

Best,

Carl

From: Nadler, Carl S. Sent: Monday, September 23, 2013 12:48 PMTo: 'Candace Kennedy'Subject: RE: Wisconsin

Hi Candace,

Just checking in with you on this retainer. Let me know if it is ok by

you (and if you have determined on a billing rate). I'm looking forward

to getting this finalized and working with you on the case!

Best,

Carl

From: Nadler, Carl S. Sent: Tuesday, September 17, 2013 4:45 PMTo: 'Candace Kennedy'Subject: RE: Wisconsin

Hi Candace,

Sorry to take so long in sending this, I have been traveling.

Here is a form retainer agreement. If anything concerns you, please let


me know. Otherwise, please let me know if your thinking on an hourly rate and I will fill that in, we can get it signed, and can get going.

Look forward to working with you on this!

Carl

From: Candace Kennedy [mailto:[email protected]] Sent: Wednesday, August 28, 2013 1:19 PMTo: Nadler, Carl S.Subject: Re: Wisconsin

Carl, Thank you .. I will need to put a CV together over the next few days, never had a need for one in the past.. Candace On 8/28/2013 10:29 AM, Nadler, Carl S. wrote:

Candace,

It was a pleasure speaking with you this morning. I will send a form retainer letter (probably tomorrow, as I'm out of the office today).

If it is not too much trouble, could you please forward a copy of your

CV?

Carl

Carl Nadler

Arnold & Porter LLP 555 Twelfth Street, NW Washington, DC 20004-1206


Telephone: +1202.942.6130

Cell Phone: +1 202.997.0024

Carl. Nadler@ a porter.com

www.arnoldporter.com

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This e-mail may contain confidential,proprietary,and/or privileged information. If you are not the intended recipient,or have received this e-mail in error, please notify the sender immediately and destroy this e-maii.Any unauthorized copying, disclosure or distribution of the material in this e-mail is strictly forbidden



From: Sent: To: Subject:

Got it, thanks

John Mas [email protected]] Wednesday, October 02, 2013 10:54 AM Nadler, Carl S. Re: FW: Wisconsin Case

On Oct 2, 2013 11:48 AM, "Nadler, CarlS." <[email protected]> wrote:

From: Nadler, Carl S. Sent: Wednesday, October 02, 2013 9:34AM To: '[email protected]' Cc: Foster, Nathan D.; Martemucci, Marco J. Subject: Wisconsin Case

Dear John,

It was great meeting you by telephone yesterday. This email provides you with contact information for me and my colleagues Nathan Foster and Marco Martemucci. If you could send us a copy of your article and your CV, we would appreciate it.

Also, I am enclosing a copy of a draft retainer agreement. Please take a look and let us know if it seems ok to you. Also, please advise how we should fill in the sections on your hourly rate for helping us with this project.

Please copy me, Nathan, and Marco on all conespondence, especially as I will be out of the office for quite a bit of the next few weeks.


Best,


Carl

Carl Nadler

Arnold & P011er LLP

555 Twelfth Street, NW

Washington, DC 20004-1206

Telephone: +I 202.942.6130

Cell Phone: +l 202.997.0024

www. arnoldpm1er.com

!Iathan Foster Arnold & Porter LLP Assodate Litigation (General) +1303.863.2355\i'/ork + 1 307. 3'19.67561',1obile Nathan. Foster @APORTER. COM 370 Seventeenth StreetJ Suite 4400 Denver, CO 80202-137D

Marco Martemucci Arnold & Porter LLP Assodate Litigation (General)

+1213.243.4259 \'/ork Marco, Martemucd @aporter, com 777 South Figueroa Streetr Forty-Four, .. Los Angeles, CA 90017-5844

-------------

/\ny U.S. for1er~11 l<:1x advice included in this communic8tion cmy attachments) was rwt intended or \FV(i\ton to be US(;d, and cannot be used, for· the purpose oi (i) iWOidinQ IJ}·) iederai taHelate,J penalties or (ii) cmmc•licn markPting or mcomrnending to arlO] her pari.y any tax-related matter <Hi dressed herein

This cornrnunicni!on confidenrr.:JI or exempt from drsclosure_ If vou are not l!le intended rectpiEmt, pleRsP note HH~t c.H1y diSSI'.:rninctllon. or copyrng of this omictly pr-ohibited Anyone who receivc"s thrs lilessa~Je in error ~-;hould the sender ir1t!Y1(~diately by telephone or by' n,;tum e und ddPie H lmtn his or ~~er !';ornf!tller

hlr more infon1wlion c:~bout Arnold 8, Porter! i.l'-1, dick here

http :1/www. arnold porter. com

2


lennington, Daniel P.

From: Sent: To: Subject: Attachments:

John Mas [email protected]] Tuesday, October 08, 2013 10:47 PM Nadler, Carl S. Re: FW: Wisconsin Case Hispanic-Financial-Paper. pdf; JohnRMasResume.doc; Retainer for John Mas_(EAST _ 64402971_2).docx; Retainer for John Mas_(EAST _64402971_2).pdf

Here are the documents, my resume, signed contract and Master's thesis.

Please call me if you have any questions.

Best regards, John Mas

On Wed, Oct 2, 2013 at II :53 AM, John Mas <[email protected]> wrote:

Got it, thanks

On Oct 2, 2013 II :48 AM, "Nadler, CarlS." <Carl.Nadler(iilaporter.com> wrote:

From: Nadler, Carl S. Sent: Wednesday, October 02., 2.013 9:34AM To: '[email protected]' Cc: Foster, Nathan D.; Martemucci, Marco J. Subject: Wisconsin Case

Dear John,

It was great meeting you by telephone yesterday. This email provides you with contact information for me and my colleagues Nathan Foster and Marco Martemucci. If you could send us a copy of your article and your CV, we would appreciate it.

Also, I am enclosing a copy of a draft retainer agreement. Please take a look and let us know if it seems ok to you. Also, please advise how we should fill in the sections on your hourly rate for helping us with this project.

1


Please copy me, Nathan, and Marco on all CO!Tespondence, especially as I will be out of the office for quite a bit of the next few weeks.


Best,

Carl

Carl Nadler

Arnold & Pmtcr LLP

555 Twelfth Street, NW

Washington. DC 20004-1206

Telephone: + l 202.942.613Q

Ceil Phone: +I 202.997.0024

[email protected]

www.arnoldporter.com

Nathan foster Arnold & Porter LLP Assodate: Litigation (General) +1303.863.2355Work +1307.349.6756Mobiie Nathan. Foster@APORTER. COM 370 Seventeenth Street, Suite 4400 Denver, CO 80202-1.370

Ma reo Ma rternocci Arnold & Porter LLP Assodate Litigation (General)

+1213.243.4259 \Vork Marco, Martemucd @aporter, com 777 South Figueroa Street, Forty-four,., Los Angeles, CA 90017-5844

2


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Any US federal lax advice mduc~ed in this cornrnunication (!ncludmg any ntlP~chments) wGs not intended or written to be used. and cannot be used. for the purpose of (i) avoidino u_s_ federal ia»reiated penalTies or (i1) promoting. marketing or recommending to anoiher party any taX" related rnattet· Gddressed herein

Ttl is cornrnunicc1tion may contain information trtat is legally privileged, confidential or exempt from disclosure. 11' you are not the intended recipient, please note that any diss(~mination. distribution. or copyinq of this communication is strictly prohibited. Anyone who receives tt1is message in error should notify the sender 1rnmed1ately by telephone or by return e-mail and delete it frorn his or her computer

For more intorrrw.t1on about !\mold c\c. Porter U F' click r1ere http :1 /www. arnold porter. com

3


October 8 2013

PRIVILEGED & CONFIDENTIAL ATTORNEY WORK PRODUCT Prepared in Anticipation of Litigation

John Mas 593 Belmont Avenue Haledon, NJ 07508

Re: Jones v. Deininger, No. 2:12-cv-185-LA (E.D. Wis.).

Dear Mr. Mas

This letter will confirm your engagement by Arnold & Porter LLP to assist us in connection with our representation of the plaintiffs in the above-referenced litigation pending in the United States District Court for the Eastern District of Wisconsin.

1. Scope of Services

Your services will include consultations concerning the services provided by Ethnic Technologies, Inc., including the methodology, market acceptance, and reliability of those services. Your services may include providing a written opinion or affidavit, and/or the provision of testimony by deposition and/or as a witness at in a court proceeding. The case is currently set for trial in Milwaukee, Wisconsin, beginning November 4, 2013, and it is important that you be available at that time should we call you as a witness.

2. Fees, Expenses, and Terms

Arnold & Porter LLP will compensate you for your time and actual out-of-pocket expenses incurred in this matter. You will charge for your time at the rate of $200.00 (two hundred) per hour. Your fees and actual out-of-pocket expenses will be billed and payable monthly.

Arnold & Porter LLP may terminate this agreement at any time. Upon written notice of termination, you will stop all work immediately. It is understood that you shall only be compensated for all fees and actual out-of-pocket expenses incurred prior to


John Mas October 8, 2013 Page 2

notification of the termination ofthis agreement. All of your obligations under this agreement shall survive the termination or expiration ofthis agreement or the engagement.

You agree not to consult with, or engage the services of, any person to assist you with work under this retention letter without prior authorization from Arnold & Porter LLP, in accordance with the terms of this retention letter.

You agree that you and your subcontractors, employees, agents, representatives and officers ("Personnel") can and shall abide by the terms and provisions of this retention letter, including, without limitation, the requirement of confidentiality. You also agree that, at Arnold & Porter LLP's request, you shall require any or all Personnel to sign agreements or statements so providing. Moreover, you agree that any Personnel are not and shall not be deemed employees of Client or Arnold & Porter LLP, and that you shall be responsible for your Personnel's performance of, or failure to perform, the services covered by this retention letter.

3. Confidentiality

In order for you to carry out your engagement, it may be necessary for Arnold & Porter LLP to disclose to you our legal theories, as well as other privileged information and attorneys' work product. Accordingly, you agree that during and after the period of your engagement you will not disclose any theories, opinions, facts, data or other information thus disclosed to you in connection with your engagement to any person or entity, unless such disclosure is authorized by Arnold & Porter LLP or ordered by a court.

All communications by you in connection with your engagement shall be addressed to Arnold & Porter LLP, except as authorized by Arnold & Porter LLP. All documents and materials comprising your communications, and any documents or materials provided to you in connection with your engagement, shall remain or become the property of Arnold & Porter LLP, and you shall segregate and maintain them in secure and separate files. You agree that during and after the period of your engagement, you will not disclose to any person other than Arnold & Porter LLP or other attorneys representing Client, or agents of either, any documents or other materials provided to you, or generated or prepared by or for you, in connection with your engagement, unless such disclosure is authorized by Arnold & Porter LLP or ordered by a court.

If any person or entity to whom disclosure has not been authorized by Arnold & Porter LLP requests, subpoenas or otherwise seeks to obtain any theories, opinions, facts, data, information, documents or other materials within your possession or control which



have been acquired or generated in the course of your engagement, you shall immediately inform Arnold & Porter LLP and, at the request of Arnold & Porter LLP, take such legal measures as Arnold & Porter LLP may deem necessary or appropriate to resist disclosure of such theories, opinions, facts, data, information, documents or other materials. Except for measures requiring immediate action to preserve the status quo, you shall consult with Arnold & Porter LLP prior to taking any legal measures or making any decision in connection with any such request or subpoena. Should any legal measures prove necessary, Arnold & Porter LLP shall represent you or designate other attorneys to represent you, at our expense, in connection with such legal measures to the extent that they involve materials or information provided or generated in connection with this engagement.

You agree not to disclose voluntarily the fact that you have been engaged under this agreement unless you have first secured the consent of Arnold & Porter LLP.

4. Return of Materials

Except to the extent that Arnold & Porter LLP agrees otherwise in writing, you shall, upon the termination or expiration of your engagement, deliver to Arnold & Porter LLP all documents and other materials, including all copies thereof, which (a) have been provided to you in connection with your work pursuant to the engagement, (b) embody or disclose in any way any theories, opinions, facts, data, information, documents or other materials disclosed or provided to you in connection with your work pursuant to the engagement, or (c) have been prepared or are in the process of being prepared by or for you in connection with your work pursuant to the engagement.

5. Conflicts oflnterest and Ability to Provide Services

You are aware that the adverse parties to Client this matter are the following: State of Wisconsin, David G. Deininger, Michael Brennan, Gerald C. Nichol, Thomas Barland, Thomas Cane, Kevin J. Kennedy, and Nathaniel Robinson (each in their official capacities). You have undertaken a review of your records and have determined that you have no conflicts of interest that would interfere with this engagement. As the engagement progresses, you will notify us immediately if any potential conflicts come to your attention.

* * *

If the terms and conditions set forth are acceptable to you, please execute and date this letter and return it to me. The enclosed duplicate copy is for your files.



All of us at Arnold & Porter LLP are delighted that you have agreed to assist us and look forward to working with you on this matter.

ARNOLD & PORTER LLP

By __ ~-------------

Nathan Foster

Agreed to and accepted this 8 day of October, 2013


ROUGH DRAFT

UNOFFICIAL DRAFT TRANSCRIPT

THIS IS AN UNOFFICIAL DRAFT TRANSCRIPT!

This transcript has not been checked,

proofread or corrected. It is a draft transcript,

NOT a certified transcript.

As such, it may contain

computer-generated mistranslations of stenotype

code, resulting in inaccurate or nonsensical word

combinations or untranslated stenotype symbols

which cannot be deciphered by non-stenotypists.

Corrections will be made in the

preparation of the certified transcript, resulting

in differences in page and line numbers,

punctuation and formatting.

THIS DRAFT TRANSCRIPT IS SUPPLIED TO YOU

ON THE CONDITION THAT UPON RECEIPT OF THE CERTIFIED

TRANSCRIPT, THIS DRAFT AND ANY COPIES THEREOF (IN

CONDENSED FORMAT OR OTHERWISE) WILL BE DESTROYED.

THE CERTIFIED TRANSCRI

PT IS THE ONLY OFFICIAL TRANSCRIPT WHICH MAY BE

RELIED UPON FOR PURPOSES OF VERBATIM CITATION OF

TESTIMONY.

EXHIBIT 9

1


ROUGH DRAFT

you and Ethnic that would describe the disposition

of this personal information after your project was

completed?

A. The file would be returned to me. They

would retain no records.

Q. So your testimony is Ethnic retained no

records after the project was completed?

A. That is my understanding.

Q. How did just let's back up here.

Can you describe to me what your

understanding is of what Ethnic did with the

information?

A. They took the file I submitted, they put

it through their identification process, they

appended race, ethnicity, and religion codes, and

returned the file.

Q. And how did they determine the race,

ethnicity and religion of each person in the file?

A. They use a system, an onomastic matching

system name study combined with the geocoding data.

They have maintained for some time and have spent

considerable intellectual investment in

understanding how names develop and they base their

system on that onomastic analysis.

39


ROUGH DRAFT

Q. So let me say what I think they are

doing and you tell me how I am wrong. It sounds

like they take someone's name and where they live

and they use those data points to determine what

the race of the person is?

A. That's a simplistic reduction. But they

do use that as well as a world of data of their own

to come to that determination.

Q. Okay. Do you have any other

understanding of how this works?

complicated to me.

It sounds pretty

MR. ULIN: Objection, vague, argumentative.

A.

You may answer.

I understand

else you are asking me.

BY MR. LENNINGTON:

I really don't know what

Q. Who is the person that you worked with

at Ethnic?

A. I beg your pardon.

Q. Who is the person that you worked with

at Ethnic?

A. At that point I cannot recall that

woman's name. But if you hear me blurt it out

inappropriately, it will be because I just

40


ROUGH DRAFT

remembered it. It's on the tip of my tongue.

Q. Was it Karen Sinisi?

A. That's the one.

Q. So did Karen do this analysis herself?

A. No. Karen is a sales rep.

Q. Do you know the name of the person who

actually did the analysis?

A. No. I am not sure it was a person. I

can give you a number of examples when I have data

appended. There is not really a person. I submit

it, a computer does the work and returns it to me,

and there is never a person.

Q. So the computer program is the thing

that does the analysis, it's not like it's an

individual who is going through name by name?

A. Right, no, that is not what is

happening.

Q. Okay. It's starting to make a little

more sense.

So do you know how they treat, say, an

interracial marriage where one person has a name

that it would appear to be associated with one race

but the other person is of a different race? Do

you know how they treat interracial marriages?

41
