The Northeast Ohio Coalition for the Homeless et al v. Brunner

Filing 534

ORDER granting in part and denying in part 524 Motion for Discovery. Signed by Judge Algenon L. Marbley on 2/19/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE NORTHEAST OHIO COALITION
FOR THE HOMELESS, et al.,
Plaintiffs,
v.
JON HUSTED, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF
THE STATE OF OHIO,
Defendants.

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Case No. 2:06-CV-896
JUDGE ALGENON L. MARBLEY
Magistrate Judge Terence P. Kemp

OPINION & ORDER
Before the Court is Plaintiffs the Northeast Ohio Coalition for the Homeless, et al.
("Plaintiffs") February 3, 2016 Motion for Leave to Conduct Additional Discovery (Doc. 524).
Plaintiffs so move according to the Court's January 29, 2016 Order directing them to submit such
a motion and memorandum in support of their request. (Doc. 520.) The Motion is fully briefed
and ripe for review. For the reasons below, the Motion is GRANTED in part and DENIED in
part.
I. Brief Background
Plaintiffs' Second Supplemental Complaint (Doc. 453) challenges recently-enacted state
voting laws that require or permit Boards of Elections to reject absentee and provisional ballots if
voters do not fill out all of the required fields on the ballots or if voters provide any information
that does not match the records maintained by county Boards of Elections or the Secretary of the
State of Ohio. (Doc. 524 at 5.)

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Plaintiffs move the Court to grant them leave both to issue subpoenas duces tecum to and
to conduct half-day telephonic depositions of the Boards of Elections for the counties of Adams,
Carroll, Fayette, Gallia, Hardin, Harrison, Holmes, Meigs, Monroe, Morgan, Noble, Paulding,
Vinton, and Wyandot in the State of Ohio. (Id. at 1.)
Plaintiffs submit that the evidence gathered thus far shows that in the November 2014
and November 2015 elections, Boards of Elections rejected a "substantial" number of absentee
and provisional ballots for "hypertechnical reasons." (Id. at 3.) Plaintiffs subpoenaed the forms
that accompanied counted provisional and absentee ballots in the 2012, 2013, 2014, and 2015
elections from 19 Boards of Elections in November of 2015. (Id. at 4.) Only one Board of
Elections, Allen County's, produced evidence that it counted provisional ballots despite what
Plaintiffs characterize as those ballots' "hypertechnical" deficiencies (Id. at 3.) Rather than seek
to enforce the November 2015 subpoenas, Plaintiffs now seek leave to obtain evidence from the
14 Boards of Elections that counted the fewest absentee and provisional ballots in the November
2014 and 2015 elections. (Id. at 4.)
On January 25, 2016, Plaintiffs requested leave to conduct additional discovery in order
to seek documents and testimony supporting their position that certain county elections boards
have failed to count the ballots of legitimate voters based on "trivial errors and omissions," and
that these boards "have done so on an unequal and arbitrary basis." (Doc. 516 at 1.)
On January 29, 2016, the Court directed Plaintiffs to submit a motion and supporting
memorandum on or before February 1, 2016 setting forth the factual bases for the requested
depositions. (Doc. 520 at 4.) The Court directed Plaintiffs to demonstrate that the requested
discovery would produce information relevant to their claims or defenses. (Id.) The Court gave
Plaintiffs until February 3, 2016 to submit the motion and memorandum, which they did timely.

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(Id.; Doc. 524.) On February 8, 2016, Defendant's responded in opposition. (Doc. 529.) Plaintiffs
replied on February 9, 2016. (Doc. 530.)
II. Law and Analysis
Federal Rule of Civil Procedure 16(b)(4) allows the Court to modify its case schedule
"only for good cause and with the judge's consent." To prevail, late-moving litigants must
demonstrate that "despite their diligence they could not meet the original deadline." Shane v.
Bunzl Dist. USA, Inc., 275 F. App'x 535, 536 (6th Cir. 2008) (quoting Leary v. Daeschner, 349
F.3d 888, 907 (6th Cir. 2003)). The Court's decision on the matter is reviewed for abuse of
discretion, meaning it will be reversed only if a reviewing court is left with "a definite and firm
conviction" that the Court committed a "clear error of judgment." Shane, 275 F. App'x at 536
(quoting Dubay v. Wells, 506 F.3d 422, 431 (6th Cir. 2007)).
According to Plaintiffs, "almost all" of the 19 county Boards of Elections served with
prior subpoenas have refused to produce documents, objecting due to cost and burden. (Doc. 524
at 9.) Instead of forcing all of those counties' Boards of Elections to comply with prior
subpoenas, Plaintiffs now seek leave to serve subpoenas on and conduct telephonic depositions
of representatives from 14 county Boards of Elections. (Id. at 4.) Plaintiffs contend that the Court
should grant them leave to conduct additional discovery to help prove three of Plaintiffs' claims,
namely Counts One (unlawful literacy tests, 52 U.S.C. § 10501), Five (lack of uniform standards
violating the Equal Protection Clause of the Fourteenth Amendment), and Seven (substantive
due process under the Due Process Clause of the Fourteenth Amendment) of their Second
Amended Complaint. (Id. at 5-7.) Plaintiffs admit that they could rely solely on the evidence
provided by the Allen County Board of Elections but that they would rather develop a "robust
record with evidence from a cross-section of Boards of Elections to develop a more complete

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picture of how these ballots are being handled across the State of Ohio." (Id. at 4.) Plaintiffs
understand why the Boards of Elections objected to producing the forms initially, namely that
those counties are larger and counted high numbers of absentee and provisional ballots in the
November 2014 and 2015 elections. (Id.) Plaintiffs now seek discovery on the 14 requested
county Boards of Elections because those counties report the fewest absentee and provisional
ballots in the November 2014 and 2015 elections. (Id.) These counties have fewer documents to
produce and, according to Plaintiffs, can more easily produce the requested information. (Id.)
Defendants object to Plaintiffs' discovery request, contending that Plaintiffs were not
diligent and that granting the request would prejudice Defendants. (Doc. 529 at 6-10.)
As to diligence, Defendants point out that the Court entered the case schedule for this
matter on September 25, 2015, and that Plaintiffs waited nearly two months before issuing
subpoenas on the boards. (Id. at 6.) Defendants further submit that Plaintiffs were on notice that
they might not get the information they requested from the boards as soon as the boards issued
their objections to the subpoenas, and that Plaintiffs' failure to do anything indicates a lack of
diligence on Plaintiffs' part. (Id. at 7.) Defendants point out that Plaintiffs could have filed
motions to compel, alerted Defendants and the Court of the objections, or pursued other
measures that Plaintiffs did not. (Id. at 7.) And according to Defendants, "Plaintiffs . . .
indisputably knew months ago . . . what the acceptance and rejection numbers/rates were - for
each county in Ohio - for provisional and absentee ballots in both the 2014 and 2015 elections,"
and that Plaintiffs "selected from that list the counties they believed would be most beneficial to
their case." (Id. at 8.) Now, say Defendants, Plaintiffs' wishing that they had selected different or
additional counties should not be a basis for amending the discovery deadline. (Id.)

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As to prejudice, Defendants submit that allowing Plaintiffs to seek additional evidence
from the Boards of Elections burdens Defendants in trial preparation by, for example, forcing
Defendants to "select and develop witnesses and otherwise prepare for trial without sufficient
knowledge of the basis for Plaintiffs' challenges." (Id. at 9.) Defendants also submit that allowing
more discovery would force parties to expend "significant resources" to review the documents
and prepare for the depositions of 14 additional boards, despite what Defendants argue is
information that will be "inevitably cumulative and duplicative of evidence Plaintiffs already
have in their possession." (Id.) Defendants also point out that the Boards of Elections will be
burdened by the discovery request, and that compliance with the discovery demands could prove
difficult for those boards. (Id. at 10.)
Plaintiffs aver that they tried "mightily" to alleviate the burden on the Boards of Elections
while seeking the evidence needed to support Plaintiffs' claims, and that they issued a second
round of subpoenas with a "substantially narrowed" scope to the objecting county boards. (Doc.
530 at 1-2.) Plaintiffs also point out they waited till December 2015 to request the information
because some time would necessarily elapse between the November 3, 2015 election and the
time at which Boards of Elections would have the requested information. (Id.) Plaintiffs aver
that they waited to request the information because they did not want to do so piece meal, not
because of lack of diligence or strategic delay. (Id. at 2.) Plaintiffs further aver that they waited
only five weeks between the Court's Order allowing the service of the subpoenas and Plaintiffs'
serving those subpoenas. (Id. at 4.)
The Court is satisfied with Plaintiffs' demonstrated diligence and explanation for the
delay. Counsel both for Plaintiffs and Defendants have thus far behaved with the utmost
diligence and professionalism, and the Court has no concerns about their diligence now. The

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Court is concerned, however, with the fairness of allowing the deposition of the 14 additional
Boards of Elections so close to the March 16, 2016 trial date. On the one hand, the Court finds
well taken Defendants' concern that allowing those depositions could pose severe logistical and
time-related problems. On the other hand, the Court also finds well taken Plaintiffs' argument
that the information Plaintiffs seek is relevant to Plaintiffs' case and that, were such discovery
not allowed at this time, Plaintiffs would nevertheless subpoena those same County Boards of
Elections officials for the same information to be submitted for evidence in trial. (Doc.530 at 5.)
Granting Plaintiffs' request to subpoena the information would allow those officials more time to
prepare, and give counsel for both Plaintiffs and Defendants time to review the documents in
advance of trial. In the interest of more efficient trial preparation, the Court GRANTS Plaintiffs'
request to issue subpoenas duces tecum to the 14 requested county Boards of Elections. The
Court DENIES Plaintiffs' request to depose the same.
CONCLUSION
The Court GRANTS in part and DENIES in part Plaintiffs' Motion for Leave to
Conduct Additional Discovery. The Court GRANTS Plaintiffs leave to issue subpoenas duces
tecum to the Boards of Elections of Adams, Carroll, Fayette, Gallia, Hardin, Harrison, Holmes,
Meigs, Monroe, Morgan, Noble, Paulding, Vinton, and Wyandot Counties in the State of Ohio.
The Court DENIES Plaintiffs leave to depose the same. Plaintiffs are directed to notify the Court
at the earliest possible moment of any objections or non-compliance from any of the county
Boards of Elections.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT COURT
Dated: February 19, 2016
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