Will the Hofeller files make it to trial in partisan gerrymandering case?

Judges hear heated arguments over who owns deceased mapmaker’s computer files, whether they should be admitted or given weight as evidence

North Carolina Republicans believe the files from deceased mapmaker Thomas Hofeller shouldn’t be used at the upcoming partisan gerrymandering trial because he’s not around to testify.

“There are lots of things, your honors, that we are never going to know about those files and that, frankly, we can’t know about those files because Dr. Hofeller is not here to testify about them or lay a foundation for them,” said Phil Strach at a Tuesday hearing in Common Cause v. Lewis. “All the things or the conclusions that plaintiffs want you to draw from these files [is] sheer speculation, absolute utter sheer speculation.

“If the court is going to try this case on facts and the law, these files are baseless speculation and they will remain so, and there’s nothing that the plaintiffs can do to fix that because Dr. Hofeller is not here to talk about them.”

Strach was unwavering in his assertion that the court did not have the authority to authenticate the Hofeller files – documents that Stephanie Lizon Hofeller turned over to the plaintiffs in the case after her father died.

He brought up issues with the chain of custody and pointed out that Lizon Hofeller had been estranged from her father. He questioned whether the files could have been altered from the time she came to possess them to the time she gave them to the plaintiffs.

The plaintiffs in Common Cause have already alleged that the Hofeller files show GOP legislative leaders lied to a federal court and the public about the 2017 redistricting process. They plan to make their case at trial using only 35 of the more than 75,000 files, which they turned over to the court Tuesday.

Strach said the court should give zero weight to the files if they agree to admit them at trial.

“I just don’t see how it’s helpful,” he said. “There’s no evidence the legislature knew of any of this – we take that as a given. So what Dr. Hofeller was doing with maps on his own time can’t possibly relate to the intent of the legislature.”

Daniel Jacobson, an attorney for the plaintiffs, argued that the chain of custody in getting the Hofeller files was proper and they met their low burden to prove the authenticity of the documents.

He also pointed out that there is a provision in the mapmaker’s contract with the North Carolina legislature that states all the documents Hofeller used to make the maps would become public record after their enactment.

“All of these files are public records,” Jacobson said, adding that lawmakers bear the responsibility for making them so. “These are public records that should have been made available after August 31, 2017.”

A little more than half of the hearing Tuesday was focused on just the 35 documents related to the upcoming trial. The rest was about the entirety of the Hofeller files, which a political consulting firm the mapmaker co-founded argued belonged to them.

Bob Hunter, a recently retired North Carolina Court of Appeals judge who is representing the firm, Geographic Strategies, said the plaintiffs legal premise that the Hofeller files were Stephanie or Kathleen Hofeller’s to give was false.

“They were not,” he said. “They belonged to Dale Oldham of Geographic Strategies, or as is law in North Carolina, they belong to the clients that Dale Oldham represented, because attorney-client privilege belongs to the client. It does not belong to Stephanie Hofeller – she is not a lawyer. She has not seen her father in over five years before he died. She did not attend the funeral.

“She does not know the history of these documents, she does not know their ownership and she and her mother are both incapable of testifying as to their ownership.”

Hunter did not object to the plaintiffs using the 35 documents from the Hofeller files in the upcoming trial or the 10 documents they already submitted in an unrelated case about the 2020 Census citizenship question.

He asked the three-judge panel though to stop the plaintiffs from viewing and using any of the other documents. He suggested the judges either allow Geographic Strategies to designate the entirety of the files as “highly confidential” or that they destroy them.

He also criticized the plaintiffs for their “misuse” of the discovery process and said he wished they had tried harder to track down his client so they could have worked out the issues earlier.

“It’s like a school bully who takes your lunch bag and then tries to negotiate about which sandwich you’ll get back,” he described of the situation.

Speaking for the plaintiffs, Elisabeth Theodore told the court she was a little stunned to be lectured by Hunter about the discovery process and then described the great lengths Oldham went through to avoid being served with the plaintiffs’ subpoena, including changing his business address.

“This is really bad misconduct,” she said.

She asked the court not to grant Geographic Strategies with discretion over the Hofeller files as a consequence of Oldham’s evasion of service.

Two of the judges, though, did not appear sympathetic to her argument.

“Here’s what I’m hearing with this, and I’m going to tell you I have a problem with this whole line down here; you’re saying [the Hofeller files are] not Geographic Strategies’, you fully admit they’re not yours, but it’s almost like you’re trying to exercise control and put conditions on who gets them and what they can do with them,” said Judge Joseph Crosswhite. “And it seems like you still want to keep them and use them however you want to use them.”

Similarly, Judge Paul Ridgeway asked Theodore a line of questions about whether it was plausible that Geographic Strategies owned at least some of the Hofeller files.

Theodore said of course it was possible, but the plaintiffs position is that the files belonged to Hofeller’s daughter and that the usual rule of law is once she turned them over in a subpoena, the plaintiffs were granted the right to use them in litigation.

If Geographic Strategies wants to claim ownership over any of the files, Theodore said the law requires them to identify specific documents entitled to protection.

She acknowledged they had not given copies of the Hofeller files to the firm – which Hunter had claimed earlier was the reason they could not identify specific files – but said they should already have the files that should be considered privileged.

“What they are asking the court to do is instead decimate tens of thousands of files that Geographic Strategies has no interest in as confidential,” Theodore said.

If the court ordered the plaintiffs to turn over the Hofeller files, she said they would do so. Hunter indicated earlier though that the timing of starting the discovery process of reviewing millions of pages of documents would not be ideal for a trial that starts in less than three weeks.

Mark Braden argued for the legislative defendants that before the court could proceed any further in the case, it should identify the scope of the taint already involved by figuring out who has viewed the Hofeller files – which contain thousands of pages of confidential documents.

“What’s the question for this court?” he asked. “It’s not the volume because it’s enormous. It’s not whether or not they’re relevant documents. What’s left for this court is who’s looked at them and the scope of the breach.”

He accused the plaintiffs’ attorneys of violating ethical procedure when Lizon Hofeller notified them about her father’s work files.

“The only thing they could have done is advise her to get counsel,” he said. “What did they advise her to do? They advise her to not get counsel, but give us everything – bad legal advice. The lust for these documents and the desire to distribute them nationwide overcame any normal ethical judgement that should have been exercised by lawyers.”

He described some of the intimate Hofeller family drama and insinuated there was a lot the court didn’t know about how the documents got to be in the possession of the mapmaker’s daughter.

Stanton Jones, the lead attorney for the plaintiffs, took great issue with the ethics allegations and explained in great detail the timeline associated with how they received the Hofeller files.

He said they operated ethically, transparently and otherwise appropriately and that the legislative defendants’ entire arguments are “based on a long series of assertions that are provably incorrect.”

The three-judge panel – which includes Judge Alma Hinton, who didn’t ask any questions during the Tuesday hearing – took the arguments under advisement to issue their decisions at a later time.

The trial is still set for July 15, though the legislative defendants have requested a delay. The next pre-trial hearing will be July 10.