Common Cause Georgia v. Kemp - OPPOSITION TO DEFENDANT'S MOTION TO STRIKE

Case 1:18-cv-05102-AT Document 53 Filed 11/10/18 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Common Cause Georgia, as an )
organization, )
)
Plaintiff, )
) Case No. 1:18-CV-05102-AT
v. )
) The Honorable Amy Totenberg
Brian Kemp, in his official capacity as )
Secretary of State of Georgia, )
)
Defendant. )
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE

THE DECLARATIONS OF MICHAEL MCDONALD, EDGARDO
CORTÉS, AND KEVIN MORRIS
Defendant’s motion to strike the Declarations of Michael McDonald, Edgardo
Cortes, and Kevin Morris (collectively, the “Declarations”) should be denied for the
reasons set forth below.
The information provided in the Declarations is highly relevant and does not
violate the Court’s Order. Defendant’s chief complaint seems to be that Plaintiff’s
witnesses reviewed data in addition to the data specifically referenced in the Court’s
order. However, as explained by Dr. McDonald, in order to meaningfully analyze
the data, Dr. McDonald needed to review not only the number of provisional ballots
cast (the data provided by Defendant) but also the number of total ballots cast (not
provided by Defendant). See McDonald Decl. Indeed, Defendant’s own expert
1
seems to agree that the data provided by Defendant was not sufficient to analyze
statistical significance. See Decl. of John Alford, Doc. 45 at ¶ 6. Rather than merely
stating as such in response to the Court’s Order—as Defendant did—Plaintiff

1
downloaded the additional data necessary from Defendant’s own website.
Plaintiff’s Declarations are thus not irrelevant.
Nor do the Declarations contravene the Court’s Order. While the Court
ordered Plaintiff to analyze the data submitted by Defendant, at no time did the Court
order that Plaintiff could not use other data to analyze Defendant’s data, or that
Plaintiff could not submit additional evidence in support of Plaintiff’s motion.
Plaintiff submitted highly relevant evidence to the Court: (a) the Declaration of Dr.
McDonald, who analyzed the data provided, using other publicly-available data
necessary to the analysis; (b) the Declaration of Mr. Morris, who explained the
method by which he obtained this additional data; and (c) the Declaration of Mr.
Cortés, who responded directly to the Court’s concerns raised at the November 8
hearing about whether relief in this case could actually have an impact on the
outcome of the elections. This evidence is all highly relevant.
In addition, Rule 12(f) does not apply here. That rule provides that a court
may “strike from a pleading . . . any redundant, immaterial, impertinent, or
1
See https://results.enr.clarityelections.com/GA/91639/Web02-state.220747/#/.
2
scandalous matter.” Defendant has not moved to strike a pleading and the rule is
therefore inapplicable. See, e.g., Sum of $66,839.59 Filed in the Registry v. United
States IRS, 119 F. Supp. 2d 1358, 1359 n.1 (N.D. Ga. 2000) (noting that a motion to
strike under Rule 12 is not the proper method for challenging an affidavit); see also
2 Moore’s Federal Practice § 12.37[2] (2018).
For these reasons, Plaintiff respectfully requests that the Court consider the
Declarations.
This 10th day of November, 2018.
DLA PIPER LLP
By: /s/ Christopher Campbell
Christopher G. Campbell
One Atlantic Center
1201 West Peachtree Street, Suite 2800
Atlanta, GA 30309-3450
(404) 736-7808
[email protected]
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

Robert A. Atkins
(pro hac vice application pending)
NY Bar No. 2210771
Farrah R. Berse
NY Bar No. 4129706
Makiko Hiromi
NY Bar No. 5376165
William E. Freeland
3
NY Bar No. 5450648

Melina M. Meneguin Layerenza
NY Bar No. 5559240
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
BRENNAN CENTER FOR JUSTICE AT NEW YORK

UNIVERSITY SCHOOL OF LAW
Myrna Pérez
(admitted pro hac vice)
NY Bar No. 4874095
Lawrence D. Norden
(pro hac vice pending)
NY Bar No. 2881464
Wendy R. Weiser
NY Bar No. 2919595
Maximillian Feldman
NY Bar No. 5237276
120 Broadway, Suite 1750
New York, NY 10271
(646) 292-8310
[email protected]
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiff

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Case 1:18-cv-05102-AT Document 53 Filed 11/10/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE

Defendant’s motion to strike the Declarations of Michael McDonald, Edgardo

reasons set forth below.

order. However, as explained by Dr. McDonald, in order to meaningfully analyze

provided by Defendant). See McDonald Decl. Indeed, Defendant’s own expert

stating as such in response to the Court’s Order—as Defendant did—Plaintiff

Plaintiff’s Declarations are thus not irrelevant.

Plaintiff could not submit additional evidence in support of Plaintiff’s motion.

outcome of the elections. This evidence is all highly relevant.

may “strike from a pleading . . . any redundant, immaterial, impertinent, or

2 Moore’s Federal Practice § 12.37[2] (2018).

This 10th day of November, 2018.

DLA PIPER LLP

By: /s/ Christopher Campbell

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

NY Bar No. 5450648

BRENNAN CENTER FOR JUSTICE AT NEW YORK

Attorneys for Plaintiff

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