King Lincoln Bronzeville Neighborhood Association et al v. J. Kenneth Blackwell et al
RESPONSE in Opposition re 102 MOTION for Reconsideration re 101 Opinion and Order and Request for Emergency Hearing filed by Movants Partnership for Ohio's Future, Linda Woggon, Ohio Chamber of Commerce, Ohio Chamber of Commerce Education Foundation & Andrew Doehrel. (Smith, Bradley) Modified on 12/20/2010 to add filers (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRIC OF OHIO, EASTERN DIVISION
King Lincoln Bronzeville
Neighborhood Association, et al.,
Case No. 2:06-cv-745
Jennifer Brunner, et al.,
Magistrate Judge Kemp
Memorandum in Opposition to Motion for Reconsideration of the Magistrate Judge’s November 19,
2010 Opinion and Order
Since June of 2007, attorney Clifford O. Arnebeck, Jr. has been threatening, on behalf of
unidentified clients and on the basis of unspecified acts, to bring RICO charges against the Ohio
Chamber of Commerce (“Chamber”) and the Partnership for Ohio’s Future (“Partnership”). In this
endeavor, he has demanded that the Chamber and the Partnership retain documents that would
otherwise have long since been destroyed in the normal course of document management, and he has
publicly accused the Chamber and the Partnership of violating the law in multiple press conferences and
press releases, and in various articles published on websites under the bylines of his co-counsel in this
suit, Robert Fitrakis and Harvey Wasserman. He has also publicly, through articles by his afore-named
co-counsel, accused both Partnership officers and their counsel, the undersigned, of making false
statements, the latter in the course of carrying out representation of the Chamber and the Partnership.
See e.g. Bob Fitrakis and Havery Wasserman, Ohio Chamber Lies and Hides Election Buys, Huffington
Post, Nov. 2, 2010.
On October 28, 2010, Arnebeck, acting in his personal capacity (or at least without identifying
that his complaint was filed on behalf of any other person or entity), filed a complaint against the
Partnership for Ohio’s Future with the Ohio Elections Commission (“OEC”), seeking to use the subpoena
power of the OEC to obtain essentially the same information he now seeks in this action. Clifford O.
Arnebeck, Jr. v. Partnership for Ohio’s Future, OEC Case No. 2010E-122. In that complaint, Arnebeck
stated his motive for the filing: to “alert the public to the nature of the source of this money before the
election” (referring to independent expenditures made by the Partnership, as permitted under Citizens
United v. Federal Election Commission, 130 S. Ct. 876 (2010), in connection with races for the Ohio
Supreme Court). He sought to gain public disclosure of information on donors to the Partnership,
including the amounts and dates of contributions. His complaint hinted that former presidential advisor
Karl Rove ordered the “assassination” of political consultant Michael Connell, and that the Partnership
was also in some way complicit in that conspiracy.
However, perhaps understanding that Ohio law did and does not require the Partnership to
reveal the information he sought, see Ohio Elections Commission Advisory Opinion 2010ELC-02,
Arnebeck did not claim that the Partnership violated Ohio law by not filing donor information with the
state. 1 Rather, he alleged that the Partnership’s statement on its ads, as required of all independent
expenditures, see O.R.C. § 3517, that the ads were not authorized by any candidate or committee, was a
“false statement” because the ads were, he claims, coordinated with the candidates. Mr. Arnebeck’s
complaint, however, cited to no evidence of any coordination between the Partnership and any
candidate. His complaint, it should be noted, implicitly alleges, again with no evidence, that two sitting
Justices of the Ohio Supreme Court had violated the law by accepting and failing to report coordinated
corporate contributions from the Partnership in violation of Ohio law. Arnebeck argued in the complaint
that the OEC should find probable cause so that he could obtain information on the Partnership’s donors
and “alert the public to the source of this money before the election.” OEC Complaint, p. 6, para. 32.
At no point have Arnebeck or plaintiffs claimed that the disclosure originally he and now they seek is required by
state or federal law. Plaintiffs do state in this Motion, see Motion to Reconsider at 8, that “it is urgent that the
press and voters know the names and amounts of contributions because that is what Ohio election law is intended
to assure them of receiving,” but they cite to no authority for that proposition because, in fact, that is not what the
law requires. OEC Advisory Opinion 2010ELC-02.
On the eve of the hearing before the OEC, Arnebeck appears to have grown nervous that the
OEC would not find probable cause on his incredible complaint. At 10:15 p.m. on Sunday, October 31,
Arnebeck sent an email to Assistant Attorney General Richard Coglianese, state’s counsel in this case,
asking permission to use this case to serve subpoenas on the Partnership and the Chamber because
“the public will be irreparably harmed if it is not informed before Tuesday’s election as to whom is
funding these ads.” Defendants’ Response to the Plaintiffs Attempt to Subpoena Karl Rove, Ex. B. 2
At a hearing before a probable cause panel of the OEC on November 1, 2010, Arnebeck accused
the Partnership of “racketeering” and of participating in “a coup, an attempt to take over the
government of the United States and the states of this country.” He reiterated that he sought the
Commission’s authority so that he could issue subpoenas to “have disclosed the donors.” Continuing, he
asked the OEC, “Allow me to issue these subpoenas, and it must be today, because the public needs to
know.” Transcript, Ohio Elections Commission, Arnebeck v. Partnership for Ohio’s Future, Nov. 1, 2010,
p. 5-10. The OEC, however, dismissed Arnebeck’s complaint with a finding of “no probable cause.” Id.
After the OEC had rejected his request to grant him subpoena power to force the Partnership to
disclose information it is not legally required to disclose, Arnebeck seized on this lawsuit, lying dormant
for nearly two years, as a vehicle to try to get the information from the Chamber and the Partnership.
Neither the Chamber nor the Partnership, nor any of the Movants, are parties to this action. At
approximately 11:30 a.m. on November 1, within two hours of the OEC hearing, under the guise of
seeking discovery in this action, Arnebeck served subpoenas on the Partnership, the Chamber, the Ohio
Chamber of Commerce Educational Foundation, and Andrew Doehrel (President of the Chamber) and
Mr. Arnebeck needed the state’s agreement because he was otherwise stayed from seeking
further discovery in this case by this Court’s order of April 6, 2007. In his eagerness to obtain such
agreement, he apparently also attempted to contact Secretary of State, a represented party, without
going through her counsel. See Defendants’ Response to the Plaintiffs Attempt to Subpoena Karl Rove,
Linda Woggon (Vice-President of the Partnership for Ohio’s Future), demanding substantially the same
information he had sought to gain hours earlier through the OEC proceedings, and demanding
production by 2:00 p.m. that same day. These organizations and individuals (collectively “Movants”),
then moved to quash the subpoenas as burdensome, not relevant, in violation of a prior Stay Order
issued in this case, and, for the individual movants, for failure of service.
The next day, November 2, which was also election day, during a telephone conference with
Magistrate Judge Kemp, Plaintiffs’ counsel reiterated his desire to release the requested information to
the public in the hope of influencing voting before the polls closed. After it became clear that the
Magistrate Judge would not grant the motion to compel that day, Plaintiffs’ counsel argued, for the first
time, that he sought the information from these non-party Movants in order to help him prepare for a
deposition of Karl Rove that he hoped to take in this case. 3 After allowing for supplemental briefing, on
November 19, 2010, Magistrate Judge Kemp quashed the subpoenas on the non-parties.
Since Magistrate Judge Kemp’s order, the U.S. District Court for the District of Columbia has
vacated Plaintiffs’ deposition date for Karl Rove. King Lincoln Bronzeville Neighborhood Assoc. v.
Brunner, (Slip Op., D.D.C. Nov. 24, 2010). Meanwhile, Movant Partnership for Ohio’s Future, on request
of Plaintiffs’ counsel and even before Plaintiffs had filed the Motion to Compel at issue here, had sent to
Plaintiffs’ counsel, as it has to all who have asked, a list of its donors for the 2010 elections. Partnership
and other Movants object, however, to providing the added information that Plaintiffs seek in this
request. Plaintiffs now seek review of Magistrate Judge Kemp’s November 19 Order granting movants’
Motion to Quash and denying Plaintiffs Motion to Compel.
Plaintiffs co-counsel, Messrs. Fitrakis and Wasserman, have been soliciting public donations to “help take Karl
Rove’s deposition: Put Bush’s Brain Under Oath,” on the website of their publication, The Free Press,
http://freepress.org/index2.php (viewed December 15, 2010) and other blog sites, see “Priceless: Karl Rove Under
Oath,” http://fraudbusterbob.com/blog/2010/11/21/priceless-karl-rove-under-oath/ (viewed December 15, 2010).
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. §636 (b)(1)(A) and F.R.C.P. 72 (a), an order of the Magistrate Judge may be
set aside only if the order is found to be “clearly erroneous or contrary to law.” Thus, Plaintiffs face a
substantial burden in seeking reconsideration of the Magistrate Judge’s order. “A finding [of fact] is
‘clearly erroneous’ only when the reviewing court is left with the definite and firm conviction
that a mistake has been made.” King v. Banks, 2010 U.S. Dist. Lexis 114668 (S.D. Oh
2010). A conclusion of law is contrary to law only if it “contradict[s] or ignore[s] applicable
precepts of law.” Id.
A. The Magistrate Judge Correctly Held that Whether or Not a Deposition of Karl Rove is
Warranted in This Case, Such a Deposition, if Permitted, Would Not Justify The Discovery
Sought From These Non-Parties
In seeking to quash the subpoenas, the non-party Movants noted that a stay order has been in
effect for discovery in this case since February 5, 2007. Partial relief from the Order was granted on
September 19, 2008, for the purpose of deposing Michael Connell and “any other witnesses” as long as
the testimony of those witnesses “in the judgment of [the] parties, may be warranted based on the
deposition of Michael Connell.” Quoted in Nov. 19 Order at 8. Movants argued that the stay order
prohibited Plaintiffs from seeking this discovery both directly, by its explicit terms allowing only
deposition testimony warranted by the deposition testimony of Mr. Connell, and indirectly, because the
parties had not agreed that the deposition of Rove was warranted, and if the deposition of Rove was not
warranted, then there could be no reason to gather this information in preparation for that deposition.
As a finding of fact, the Magistrate Judge found that Secretary Brunner did not agree that the
Connell testimony warranted the deposition of Mr. Rove. Nov. 19. Order at 9. 4 Plaintiffs devote much
Plaintiffs argue, on the basis of, well, nothing, that “Secretary of State Brunner understood [that] Rove’s
deposition was the next logical step in discovery based upon the conclusions drawn from the Connell deposition.”
Motion for Reconsideration at 2. But see Defendants Response to the Plaintiffs’ Attempt to Subpoena Karl Rove, at
3 (“The deposition of Mr. Connell had did [sic] not touch upon any campaign finance issues. Rather, it concerned
of the Motion for Reconsideration to arguing that the Secretary of State did agree that the Connell
deposition warranted the deposition of Rove, but they present no new evidence that that is the case.
Rather, they devote the first five pages of their motion to arguing why Plaintiffs still think it makes sense
to depose Rove, including their belief that Michael Connell may have been assassinated on Rove’s
orders. But Plaintiffs produce no evidence, old or new, to suggest that the Magistrate’s finding of fact –
that the Secretary did not find that the Connell testimony warranted the deposition of Rove or the
discovery sought from these non-party Movants - is wrong, let alone “clearly erroneous.”
In the end, this may not matter. While Movants continue to believe, as argued in both Movants
Motion to Quash and Supplemental Memorandum in Support of Motion to Quash, that the Discovery
Stay of 2007 is sufficient to quash the subpoenas and deny Plaintiffs Motion to Compel, the Magistrate
Judge’s order here under review does not decide or rely on that point. Clearly the Magistrate Judge was
skeptical of Plaintiffs’ argument, but the Magistrate Judge ruled that “the Court will construe plaintiffs’
filings liberally and deem plaintiffs to be arguing that, even if, in Secretary Brunner’s judgment, the Rove
deposition is not proper follow-on discovery as defined in the Agreed Order, it is … something that the
Court should allow… .” Id. at 10.
But even if that were true, the Magistrate Judge noted, “there is simply no logical relationship
between the plaintiffs’ desire to take Mr. Rove’s deposition on subjects broached at Mr. Connell’s
deposition and the documents the plaintiffs have asked the movants to produce.” Id. at 11. In short,
whether or not the Secretary might agree that the Rove deposition is warranted by the Connell
testimony, a Rove deposition provides no basis for this discovery from the non-party Movants. Thus,
the computer system and webpage that Mr. Connell set up for then-Secretary Blackwell. Similarly, the King Lincoln
case itself does not involve campaign finance issues. Although this rationale may be outside the bounds of the
Court’s order on whether discovery can be had in this case, the Secretary of State has no objection to whether the
deposition of Mr. Rove should be allowed to go forward.”). Or course, the Secretary of State has little reason to
spend time and effort to object, since the Plaintiffs’ deposition of Rove, like their demand for discovery from the
non-party movants, imposes no costs on the State, does not require the State to make public information it has a
right to keep private, and, given the Plaintiffs’ increasingly bizarre theories, probably poses no serious threat of
harming the State’s legal position in the matter.
the Order under review correctly holds that the discovery sought, even if it might be relevant in some
longshot way in this lawsuit, is not relevant for the limited discovery allowed (assuming, but not
deciding, that a deposition of Rove would be allowed) under the Stay Order.
B. The Magistrate Judge Correctly Held That the Discovery Sought is Burdensome and Not
The Federal Rules of Civil Procedure provide a broad sweep for discovery, but that sweep is not
limitless. "Although a plaintiff should not be denied access to information necessary to establish [his]
claim, neither may a plaintiff be permitted 'to go fishing and a trial court retains discretion to determine
that a discovery request is too broad and oppressive.'" Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305
(6th Cir. 2007). "The proponent of a motion to compel discovery bears the initial burden of proving that
the information sought is relevant." Martin v. Select Portfolio Serving Holding Corp., No. 1:05-CV-273,
2006 U.S. Dist. LEXIS 68779, at 2 (S.D. Ohio September 25, 2006).
Here is how the Defendants in this action have described the case:
The amended complaint alleged that the individual defendants conspired with 100
unknown John Doe defendants to steal the 2004 presidential election in Ohio. Namely,
the Plaintiffs alleged that these defendants conspired to allow fraudulent votes to be
cast in 2004 for President Bush, that they allowed the double counting of absentee
ballots, that they suppressed or spoiled votes in areas that tended to vote for John
Kerry, they inflated vote tabulations from areas that voted for President Bush, they
failed to properly follow Ohio’s recount laws, and they violated other provisions of state
and federal law.
Defendants Response to the Plaintiffs’ Attempt to Subpoena Karl Rove at 1-2. Perhaps more to the
point, here is the Plaintiffs’ own description of the issues in this lawsuit:
The immediate purpose of the suit was to preserve the ballots and related materials for
the 2004 Ohio presidential election with respect to which the 22-month retention
schedule was about to expire. Suit was filed on August 31, 2006. On September 7, 2006,
on motion of the plaintiffs and with agreement of defendant Secretary of State Kenneth
Blackwell, this court issued an order to all of the Ohio county boards of elections to
preserve the 2004 ballots and related materials until further order of the court.
The broader purpose of plaintiffs’ complaint was protection against an ongoing
conspiracy to interfere with the voting rights of African American and college student
voters that was evident in the 2004 Ohio presidential election, and with respect to
which this court ordered relief on election day 2004 in an action brought by the Ohio
Democratic Party. The original complaint sought intervention of the court through
appointment of a special master to oversee the integrity of the 2006 Ohio election and
protect against interference with voting rights in that important election. On October 9,
2006, plaintiffs amended their complaint to add Rainbow PUSH and the Columbus
Coalition for the Homeless as plaintiffs, various additional defendants and a request to
declare unconstitutional the voter ID requirements, passed on a partisan basis into Ohio
law in 2005.
Plaintiffs Memorandum in Support of Motion for Relief from Stay, Doc. #39. Spending on
advertising in the 2010 election cannot possibly lead to the discovery of admissible evidence for
this suit, as described by the Plaintiffs themselves. Or, as the Magistrate Judge’s order states,
“The way in which the 2010 Ohio election may have been influenced by money flowing into
campaign ads from anonymous donors is not a ‘claim or defense’ raised in the pleadings” in this
case. Order, p. 12.
Beyond being of an entirely different nature from anything in the complaint and untethered to
the complaint in any way, the information sought by Plaintiffs pertains to events occurring four years
after this lawsuit was filed. Campaign expenditures made four years after this lawsuit was filed, and six
years after the events that triggered this lawsuit, cannot be relevant to the claims of vote suppression
that are the subject of this complaint, or be reasonably calculated to lead to the discovery of admissible
evidence. Even if such campaign speech were illegal (as opposed to protected First Amendment
activity), it would not constitute “interfere[nce] with voting rights,” nor shed any light on such efforts.
In fact, none of these non-party Movants has ever been accused of engaging in or abetting any of the
activities that are the subject of this suit.
Plaintiffs are reduced to arguing that “the Chamber has not denied” prior allegations of
Plaintiffs’ attorneys that the Chamber and Partnership have not revealed all the information sought by
Plaintiffs because doing so would reveal that their funding “is coming from those corporations who
profit most from the sale of foreign manufactured goods.” But the Chamber has no obligation to
specifically denounce every crackpot theory that makes its way onto a blog somewhere, and such
allegations, even if true, would not violate the law, or serve as a predicate act for Arnebeck’s threatened
RICO action, or be reasonably calculated to lead to admissible evidence in this vote suppression case.
However, that theory now having made its way, with this Motion to Reconsider, into a judicial pleading,
let the record show that the Movants do deny that theory.
Yet even in developing this “guilty until proven innocent” theory of discovery, Plaintiffs reveal
their true interest, and it is not to gain information needed for this suit or any deposition of Mr. Rove.
Rather, they, through their attorney, argue that “[d]isclosure of the funding sources would reveal the
Chamber’s activities against the general welfare of the people of the United States and against the
economic welfare of the general membership of the Chamber of Commerce” – the same argument
made when Plaintiffs’ counsel first sought to appropriate the OEC’s subpoena power to gain this private
information. Motion for Reconsideration at 6-7. Thus even if Plaintiffs’ claim about Movants motives
were true, it simply highlights the irrelevance of the requested discovery to this case. Plaintiffs’ belief
that Movants would be embarrassed is not relevant to this case or any other and is not reasonably
calculated – nor, in this case, even vaguely intended - to lead to the discovery of admissible evidence.
Rather, the information is sought as part of Plaintiffs’ counsel’s vendetta against the Chamber and the
Partnership, and, apparently, in the hope of influencing future elections in Ohio, or for contesting the
election just past.
Plaintiffs then suggest that the sought-after discovery is relevant because four corporations
which the Plaintiffs apparently have already identified funded elections ads (not necessarily in Ohio) in
2001 – nine years ago. Further, they argue, some other companies have contributed money to the U.S.
Chamber of Commerce. (The U.S. Chamber of Commerce, in case it needs any clarification, is not
affiliated with any of these Movants). Those contributions allegedly occurred in 2003, six years ago.
Meanwhile, Boeing Corp. and EADS, we are told, are in a bidding war for a U.S. Air Force contract,
though Plaintiffs don’t even try to explain the relevance of this last bit of data. Id. at 7-8. Expenditures
made the better part of a decade ago by organizations unaffiliated with the Movants, and lobbying
disputes between EADS and Boeing, do nothing to demonstrate that the information sought from these
non-parties has anything to do with this case.
Courts should consider the status of a non-party when determining if discovery is warranted.
Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir. 1993);
American Standard Inc. v. Pfizer, Inc., 828 F.2d 734, 738 (Fed. Cir. 1987). Discovery exists
“for the sole purpose of assisting in the preparation and trial, or settlement, of litigated disputes. “
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). Discovery does not exist for Plaintiffs’ attorney to
carry on his personal vendetta against the Movants, or to protest the lawful political activities of those
with whom he disagrees. “Discovery … may seriously implicate privacy interests of litigants and third
parties.” Id. at 34-35. It is clear from the events in this lawsuit, including the three and a half year
imposition of “hold documents” notice on the Chamber and the Partnership by the Plaintiffs’ counsel on
behalf of unspecified clients, 5 the efforts by Plaintiffs’ counsel to obtain this discovery first through the
Ohio Elections Commission, the Plaintiffs’ own statements in this latest proceeding, and the statements
of Plaintiffs’ counsel in OEC proceedings and in various postings on public blogs, that their purpose is to
force the Chamber and the Partnership to disclose information that they are not legally required to
disclose, on the theory that forcing such disclosure will affect election outcomes in a manner that the
Plaintiffs’ counsel deems favorable to his political designs and conspiracy theories.
Courts should protect litigants, and even more, non-parties, where the information ”if
publicly released, could be damaging to reputation and privacy." Flagg v. City of Detroit,
268 F.R.D. 279, 282 (E.D. Mich. 2010), quoting Seattle Times at 34-35. In this case, there
can be no doubt that, in addition to the lack of relevance of the discovery requested to the
matter at hand, plaintiffs particularly seek to publicize private information and use it to
Plaintiffs’ counsel has never identified on whose behalf he asserts these notices. In this most recent motion, he
states that “plaintiffs’ counsel issued document hold notices,” but still does not reveal if he considers those notices
made on behalf of these plaintiffs.
harass these non-party Movants. Plaintiffs’ counsel have already been blogging directly on
these proceedings, misrepresenting their conversations with Movants and Movants’ counsel
in the process. See e.g. Bob Fitrakis and Harvey Wasserman, Ohio Chamber Lies and Hides
Election Buys, Huffington Post, Nov. 2, 2010, available at
http://www.huffingtonpost.com/bob-fitrakis-and-harvey-wasserman/ohio-chamber-lieshides-e_b_777688.html; Harvey Wasserman, Cliff Arnebeck: Ohio Chamber Commits to
Produce List of Contributors Today, Op-ed News, Nov. 1, 2010, available at
http://www.opednews.com/articles/Cliff-Arnebeck-Ohio-Chamb-by-Harvey-Wasserman101101-70.html. We can at least agree that Plaintiffs are not engaged in a fishing
expedition here. Rather, they are engaged in a calculated program of harassment.
Courts have broad discretion to determine the relevance of information sought in discovery.
DeMasi v. Weiss, 669 F.2d 114, 121-22 (3d Cir. 1982). While the standard for relevancy is broad,
“parties should not be permitted to roam in shadow zones of relevancy and to explore a
matter which does not presently appear germane on the theory that it might conceivably
become so." Surety Assoc. of America v. Republic Ins. Co., 388 F.2d 412, 414 (2d Cir.
1967). Given this broad discretion to manage discovery and to make determinations on
relevance, it surely cannot be said that any part of the Order of the Magistrate Judge is
either “clearly erroneous” or “contrary to law.”
Plaintiffs’ Counsel is engaged in a long-term pattern of harassment of the Chamber
and the Partnership, and his abuse of this lawsuit and the Federal Rules of Civil Procedure to
try to gain information to which he is not lawfully entitled is merely the latest such episode.
This Court should affrim the Order of the Magistrate Judge quashing the subpoenas and
denying Plaintiffs’ Motion to Compel Production from these non-party witnesses.
Bradley Alan Smith, Counsel for Movants
332 W. Elm St.
Granville, OH 43023
CERTIFICATE OF SERVICE
A copy of the foregoing was served on counsel for the parties and respondents through the court’s
electronic filing system, this 17th day of December, 2010.
/s/ Bradley Alan Smith, #0046887
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