The Pulse

Court allows some Hofeller files to be used at gerrymandering trial, temporarily makes the rest confidential

By: Melissa Boughton - July 12, 2019 5:42 pm

The 35 files from deceased mapmaker Thomas Hofeller’s digital documents related to North Carolina redistricting can be used at the highly-anticipated partisan gerrymandering trial next week, according to a set of court orders released late Friday afternoon.

The rest of the 75,000-plus “Hofeller files,” however, will be designated as confidential for 60 days so the political consulting firm Hofeller co-founded can sort through them and determine which documents they can claim ownership of or some other claim of right. The firm, Geographic Strategies, had initially asked the court to mark the entirety of the Hofeller files as “highly confidential” or to destroy all the documents.

“The court is aware that many of the documents contained in the Hofeller files are public and non-privileged,” the Friday order states. “It’s objected through this order is not to shield the public documents but rather to craft a solution that respects potentially legitimate property rights of Geographic Strategies in the subset of the Hofeller files that are demonstrably proprietary.”

The order states that the plaintiffs in Common Cause v. Lewis must turn the Hofeller files over to Geographic Strategies within three business days. During the 60 days the court has designated the files as confidential, none of the parties to the gerrymandering case can disseminate any of the Hofeller files to third parties without petitioning the court for permission.

The order does not apply to the 35 documents the plaintiffs asked to use at the two-week trial, which will begin at 10 a.m. Monday at Campbell Law School. The plaintiffs also do not have to turn over the personal documents within the Hofeller files — those are confidential to everyone involved in the case.

Other courts can still exercise discretion to compel inspection of the Hofeller files, a notable stipulation in the Friday order since many of the documents likely have to do with other litigation across the country. Some of the files have already been introduced in litigation over the 2020 Census citizenship question.

While plaintiffs can’t share further information about the Hofeller files, the new court order does not appear to apply to any third parties who may have already gotten access to them. The three-judge panel in another order also denied a request from the legislative defendants in Common Cause to force the plaintiffs to turn over a list of everyone who has had access to the files.

In that same order, the court also denied the plaintiffs request to force the legislative defendants to stop purporting to designate the entirety of the Hofeller files as highly confidential and to stop demanding that they destroy all the documents.

“The Court’s primary objective at this stage in the litigation is to ensure that documents necessary for the administration of justice in this case are made available,” the order states. “The court is satisfied that such documents have been identified, that all parties have agreed that those documents are not subject to any assertions of privilege, and that the documents likely fall under the public record designation.”

In their motion allowing the 35 already identified Hofeller files to be used at the trial next week, the court said it was satisfied the plaintiffs properly authenticated the documents and that chain of custody issues were not relevant because none of the files had been altered. There could still be other types of evidentiary objections at trial, but for now, those select Hofeller files are admitted.

Finally, the court granted and denied several motions by several parties to the case regarding specific evidence and testimony that could be presented next week. Notably, it denied the plaintiffs request to preclude the legislative defendants from offering evidence or argument related to their use of information in the redistricting process to comply with the Voting Rights Act.

Read the court motions in full below:

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