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ROBBINS GELLER RUDMAN & DOWD LLP
PATRICK J. COUGHLIN (111070)
patc@rgrdlaw.com
X. JAY ALVAREZ (134781)
jaya@rgrdlaw.com
JASON A. FORGE (181542)
jforge@rgrdlaw.com
RACHEL L. JENSEN (211456)
rjensen@rgrdlaw.com
DANIEL J. PFEFFERBAUM (248631)
dpfefferbaum@rgrdlaw.com
BRIAN E. COCHRAN (286202)
bcochran@rgrdlaw.com
JEFFREY J. STEIN (265268)
jstein@rgrdlaw.com
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619/231-1058
ZELDES HAEGGQUIST & ECK, LLP
AMBER L. ECK (177882)
ambere@zhlaw.com
AARON M. OLSEN (259923)
aarono@zhlaw.com
225 Broadway, Suite 2050
San Diego, CA 92101
Telephone: 619/342-8000
Class Counsel
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SONNY LOW, J.R. EVERETT and
JOHN BROWN, on Behalf of
Themselves and All Others Similarly
Situated,
Plaintiffs,
vs.
TRUMP UNIVERSITY, LLC, a New
York Limited Liability Company and
DONALD J. TRUMP,
Defendants.
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No. 3:10-cv-0940-GPC(WVG)
CLASS ACTION
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ EX PARTE
APPLICATION FOR FURTHER
INFORMATION REGARDING JURY
SELECTION
DATE: Ex Parte
TIME: Ex Parte
CTRM: 2D
JUDGE: Hon. Gonzalo P. Curiel
Case 3:10-cv-00940-GPC-WVG Document 576 Filed 11/17/16 Page 1 of 7
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Defendants’ request for juror information asks too much too late. If defendants
had a genuine interest in the composition of the jury pool they could have raised the
issue with the Court anytime in the more than six years since this case was filed.
Instead, defendants have waited until the eve of trial to request a far more broad and
intrusive collection of juror information than is typically provided even in criminal
cases. Defendants have also failed to identify any actual issues or concerns that their
application would address. Instead, defendants’ primary objective appears to be to
stay this case before trial.
As defendants’ own case citations make clear, “[t]he statute” expressly “limit[s]
inspection to ‘reasonable times.’” Test v. United States, 420 U.S. 28, 30 n.4 (1975)
(quoting 28 U.S.C. §1867(f)).1 “The right to discover defects in jury selection
procedures must be balanced against the need for prompt and efficient use of federal
judicial resources.” United States v. Bogard, 846 F.2d 563, 567-68 (9th Cir. 1988).
Consequently, “[t]he decision to establish a reasonable deadline for pretrial motions,
including a motion to inspect jury records, reflects a proper balance.” Id. at 568; see
also United States v. Hurd, 549 F.2d 118, 120 (9th Cir. 1977) (finding denial of
motion to inspect jury list as untimely “was clearly appropriate”); Guam v. Palomo,
511 F.2d 255, 258 (9th Cir. 1975) (finding “denial of the motion to inspect [juror
records] as untimely was proper”).2
The Court set the deadline for all pretrial motions, other than motions in limine
or to amend or join parties, for February 20, 2015. See Dkt. 349 at 2. Defendants’
1 Citations and footnotes are omitted and emphasis is added unless otherwise noted.
2 Defendants’ own cases are in agreement. See, e.g., United States v. Studley, 783
F.2d 934, 938 (9th Cir. 1986) (finding “attempt to challenge jury selection is now
untimely”); EEOC v. Evans Fruit Co., No. CV-10-3033-LRS, 2013 U.S. Dist. LEXIS
102675, at *12 (E.D. Wash. July 22, 2013) (finding “Plaintiffs-Intervenors did not
comply with the timeliness requirement of the JSSA” and are therefore “foreclosed
from making such a challenge to the jury which was selected and are not entitled to
discovery for that purpose”); United States v. Layton, 632 F. Supp. 176, 178 (N.D.
Cal. 1986) (“nothing in the Jury Selection Act that suggests that a criminal defendant
may challenge minor aspects of proposed jury selection procedures in the abstract,
before such procedures are used to select that defendant’s grand or petit jury”).
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application to inspect jury records comes more than 20 months after this deadline and
just over one week before trial. Granting defendants’ application at this late date
would squander precious Court and party resources and distract from the all-
encompassing task of preparing this case for trial. Defendants’ application should be
denied on this basis alone.
Further, under the statute, defendants must first demonstrate that the
information is “necessary” to show “a substantial failure to comply” with the Jury
Selection Act, 28 U.S.C. §1861 et seq. (the “Act”). See 28 U.S.C. §1867(c), (f).
Defendants have not attempted to demonstrate these predicate facts, nor can they. As
the Seventh Circuit held in denying a similar request: “The defendant has not shown
why more is needed than what is already available or why the statutory prohibition of
disclosure needs to be breached.” United States v. Davenport, 824 F.2d 1511, 1515
(7th Cir. 1987). Nor can defendants show that routine jury selection procedures in this
District fail to comply with the Act, let alone “substantially” so. “Voter lists take in a
cross section of the community of sufficient magnitude to satisfy the Act in the
absence of some particular circumstance or scheme undermining the worthy purposes
of the Act.” Id. It is defendants’ burden to “set forth any ‘substantial failure to
comply.’” Id. Defendants have submitted no evidence demonstrating a need for the
information, let alone a substantial failure to comply with the Act in this District, and
their application should be denied for this independent reason. See United States v.
Hernandez-Estrada, 749 F.3d 1154, 1170 (9th Cir. 2014) (affirming finding Southern
District of California jury selection process does not substantially violate the Act),
cert denied, __U.S.__, 135 S. Ct. 709 (2014); United States v. Cosme, No. 10CR3044
WQH, 2011 U.S. Dist. LEXIS 127657, at *16 (S.D. Cal. Nov. 2, 2011) (denying
Case 3:10-cv-00940-GPC-WVG Document 576 Filed 11/17/16 Page 3 of 7
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motion to dismiss on basis that jury selection processes in Southern District of
California violates the Act).3
Finally, defendants seek access to far broader information than they would be
entitled to even if their application was timely and properly supported. As the panel in
Davenport held, such open-ended requests “lack any bona fide basis” and amount to
“a frivolous exploration.” 824 F.2d at 1515. Even criminal defendants are not
afforded routine access to materials such as juror questionnaires, which contain
“prospective jurors’ home addresses and other personal information.” Id. The panel
continued:
To give the defendant an absolute right of routine access to all materials
would be an amendment of the Act. The defendant may be seeking those
forms as an aid for voir dire examination purposes, but that is not the
purpose of the questionnaires. If these completed judicial jury forms
were released to defendants generally there would exist the possibility of
substantial abuse of the information the forms contain, which could have
serious consequences for individual jurors and the system.
Id.
Here, the risk to prospective jurors and the fairness of the proceedings if
identifying juror information is released is potentially more serious than in Davenport.
The Court has repeatedly recognized the importance of protecting the integrity of the
jury pool given the unique circumstances of this case, including by protecting
prospective juror anonymity. E.g., Dkt. 573-2, Ex. 1 at 105:18-20. Allowing
defendants access to sweeping juror information would needlessly undermine those
protections.
Defendants’ late filing and failure to demonstrate the requisite need suggests
their application is aimed primarily at delaying trial. See United States v. Vann, No.
CR 08-00244 SBA, 2012 U.S. Dist. LEXIS 175739, at *6 n.2 (N.D. Cal. Dec. 10,
3 This fact distinguishes this case from Hirst v. Gertzen, 676 F.2d 1252 (9th Cir.
1982), where no Native Americans were selected for a 60-person jury pool in an area
where Native Americans constituted 6.36% of the population.
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2012) (denying request for jury records as “untimely” and “little more than another
dilatory tactic . . . to delay the proceedings”). Defendants’ request should be denied.
DATED: November 17, 2016 Respectfully submitted,
ROBBINS GELLER RUDMAN
& DOWD LLP
PATRICK J. COUGHLIN
X. JAY ALVAREZ
JASON A. FORGE
RACHEL L. JENSEN
DANIEL J. PFEFFERBAUM
BRIAN E. COCHRAN
JEFFREY J. STEIN
s/ Brian E. Cochran
BRIAN E. COCHRAN
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619/231-1058
619/231-7423 (fax)
ZELDES HAEGGQUIST & ECK, LLP
AMBER L. ECK
AARON M. OLSEN
225 Broadway, Suite 2050
San Diego, CA 92101
Telephone: 619/342-8000
619/342-7878 (fax)
Class Counsel
Case 3:10-cv-00940-GPC-WVG Document 576 Filed 11/17/16 Page 5 of 7
1207723_1 3:10-cv-0940-GPC(WVG)
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CERTIFICATE OF SERVICE
I hereby certify that on November 17, 2016, I authorized the electronic filing of
the foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the e-mail addresses denoted on the attached Electronic
Mail Notice List, and I hereby certify that I caused to be mailed the foregoing
document or paper via the United States Postal Service to the non-CM/ECF
participants indicated on the attached Manual Notice List.
I certify under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct. Executed on November 17, 2016.
s/ Brian E. Cochran
BRIAN E. COCHRAN
ROBBINS GELLER RUDMAN
& DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: 619/231-1058
619/231-7423 (fax)
E-mail: bcochran@rgrdlaw.com
Case 3:10-cv-00940-GPC-WVG Document 576 Filed 11/17/16 Page 6 of 7
Mailing Information for a Case 3:10-cv-00940-GPC-WVG Low v. Trump University, LLC et al
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case.
• Wallace Moore Allan
tallan@omm.com
• Xavier Jay Alvarez
jaya@rgrdlaw.com,e_file_sd@rgrdlaw.com
• Brian E. Cochran
bcochran@rgrdlaw.com,e_file_sd@rgrdlaw.com
• Patrick J Coughlin
patc@rgrdlaw.com,e_file_sd@rgrdlaw.com,susanm@rgrdlaw.com
• Amber Lee Eck
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• Jason A Forge
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• Jeffrey L. Goldman
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• David Lee Kirman
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• David Marroso
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• Jill Ann Martin
jmartin@trumpnational.com,lvincent@trumpnational.com
• Thomas R. Merrick
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• Maureen E. Mueller
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• Aaron M. Olsen
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• Daniel M. Petrocelli
dpetrocelli@omm.com
• Daniel Jacob Pfefferbaum
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• Jeffrey J. Stein
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Manual Notice List
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