Kilroy v. Husted

Filing 31

ORDER granting 29 Non-Parties' Motion to Quash Subpoenas. Signed by Judge Gregory L Frost on 8/24/11. (sem1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN P. KILROY,
Plaintiff,

Case No. 2:11-cv-145
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.
JON HUSTED,
Defendant.

OPINION AND ORDER
This matter is before the Court on the Motion of Non-Parties Richard Michael DeWine,
Custodian of Records for Mike DeWine for Ohio and J.B. Hadden to Quash Subpoenas (ECF
No. 29) and Plaintiff Kilroy’s Opposition to Motion to Quash Subpoenas Addressed to Richard
Michael DeWine, J.B. Hadden, and Custodian of Records for Mike DeWine for Ohio (ECF No.
30). For the reasons that follow, the Court GRANTS the non-parties’ motion.
I. Background
Plaintiff John Kilroy is a lawyer and minority shareholder of Target Corporation, a
publicly traded corporation that, through a network of in-store pharmacies, provides
Medicaid goods and services in Ohio. Plaintiff exercises no control over the operations of
Target Corporation or its Medicaid goods and services. Plaintiff is a registered and politically
active voter and he wishes to contribute to the election campaigns of candidates for Ohio
Attorney General and county prosecuting attorneys, but claims that he has been deterred from
doing so by Ohio Revised Code § 3599.45.
Plaintiff filed the instant action , alleging that Ohio Revised Code § 3599.45 violates his

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rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiff
seeks a declaratory judgment that § 3599.45 is unconstitutional.
Plaintiff has served subpoenas on Ohio Attorney General Richard Michael DeWine, the
DeWine Campaign, and the campaign’s treasurer, J.B. Hadden. Each subpoena commands these
non-parties to appear at depositions and to bring several categories of documents related to the
DeWine Campaign’s activities, including: policies and procedures relating to compliance with
Ohio Revised Code § 3599.45, communications with potential contributors “who are or were
suspected to be Ohio Medicaid providers . . . regarding the subject of contributing”; and
communications with potential contributors discussing § 3599.45. (ECF Nos. 23, 24, 25.)
Additionally, the subpoena directed at General DeWine orders him to produce “all personal
brokerage- or investment-account statements” for individual or joint accounts with his wife “that
reflect an ownership interest in” any of the following Wal-Mart, Wal-mart Stores, Inc., Walgreen
Co., CVS Caremark Corp., Rite Aid Corp., Target Corp., Medco Health Solutions, Inc., and
Kroger Co. (ECF No. 23.) The subpoena also commands DeWine to produce all documentation
of the dates in 2009 and 2010 on which he individually or jointly with his wife purchased or sold
stock in any of the above-mentioned companies. Id.
These three non-parties have moved to quash the subpoenas.
II. Standard
Rule 26(b) of the Federal Rules of Civil Procedure provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense[.]”
Fed. R. Civ. P. 26(b)(1). “ ‘The scope of examination permitted under Rule 26(b) is broader
than that permitted at trial. The test is whether the line of interrogation is reasonably calculated

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to lead to the discovery of admissible evidence.’ ” Lewis v. ACB Business Servs., Inc., 135 F.3d
389, 402 (6th Cir. 1998) (quoting Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-01 (6th Cir.
1970)).
Rule 45 of the Federal Rules of Civil Procedure provides that “the issuing court must
quash or modify a subpoena that . . . subjects a person to undue burden.” Fed. R. Civ. P.
45(c)(3)(A)(iv). In determining whether a subpoena imposes an undue burden, a court considers
“such factors as relevance, the need of the [requesting] party for the documents, the breadth of
the document request, the time period covered by it, the particularity with which the documents
are described and the burden imposed.” American Elec. Power Co. v. United States, 191 F.R.D.
132, 136 (S.D. Ohio 1999) (quoting Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53
(S.D. N.Y. 1996)). “Courts are required to balance the need for discovery against the burden
imposed on the person ordered to produce documents, and the status of a person as a non-party is
a factor that weighs against disclosure.” Id. Finally, the burden is on the party seeking
information to “establish a need for the breadth of the information sought in response to [a nonparty’s] prima facie showing that the discovery [would be] burdensome.” Katz v. Batavia
Marine & Sporting, 984 F.2d 422, 423-24 (6th Cir. 1993).
III. Discussion
Defendant argues that Plaintiff’s subpoenas should be quashed under Rule
45(c)(3)(A)(iv) as unduly burdensome because they seek irrelevant information. This Court
agrees.
Plaintiff’s Complaint requests a declaration that Ohio Revised Code § 3599.45
“impermissibly violates his right to make campaign contributions [to candidates for attorney

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general or county prosecutor], and thus to engage in political expression and association
protected by the First and Fourteenth Amendments.” (ECF No. 1.) Plaintiff argues in his
Motion for Preliminary Injunction that the statute does not promote “a sufficiently important
[governmental] interest” and that, even if it did promote such an interest, the statute is not
“closely drawn” to serve that interest. (ECF No. 19 at 1, 2.)
As Defendant correctly argues, however, neither Attorney General DeWine’s nor the
DeWine Campaign’s actions have a bearing on any of these legal issues. On the contrary,
whether the Ohio Revised Code § 3599.45 violates the United States Constitution raises a
question of law, not of fact. What Attorney General DeWine and the DeWine Campaign did or
did not do in response to the statute is beside the point. Either the statute is constitutional or it is
not, and that question will be decided by this Court as a matter of law.
This Court already determined that “an ownership interest” means any ownership
interest. (ECF No. 28) (denying Defendant’s motion for judgment on the pleadings). Thus, the
statute’s prohibition extends to individuals, like Plaintiff, who own even a de minimus,
non-controlling share in a publicly held Medicaid provider. Whether Attorney General DeWine,
or any other attorney general or county prosecutor, violated the statute does not change its reach.
Indeed, Judge Nugent demonstrated the lack of relevance of this type of evidence in his ruling
regarding the constitutionality of Ohio Revised Code § 3599.45, looking only at the potential
full-reaching effects of the statute. See Lavin v. Husted, No. 1: 10 CV 1986, 2011 U.S. Dist.
LEXIS 80254 (July 22, 2011).
The Court concludes that the evidence sought by Plaintiff is not relevant nor is his line of
interrogation reasonably calculated to lead to the discovery of admissible evidence. Therefore, it

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would be an undue burden for Attorney General DeWine, the DeWine Campaign’s Custodian of
Records, and J.B. Hadden to comply with the subpoenas at issue here.
IV. Conclusion
Based on the foregoing, the Court GRANTS the Motion of Non-Parties Richard Michael
DeWine, Custodian of Records for Mike DeWine for Ohio and J.B. Hadden to Quash
Subpoenas. (ECF No. 29.)
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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