Kilroy v. Husted

Filing 70

ORDER granting in part and denying in part 64 Plaintiff's Motion for Reconsideration. Signed by Judge Gregory L Frost on 11/18/11. (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 to Reconsider Order to Quash Subpoenas
of Mike DeWine, J.B. Hadden, and Custodian of Records and Motion for Authorization to Take
Additional Discovery Related to Ohio Rev. Code § 3599.45’s Impact on County ProsecutingAttorney Candidates (ECF No. 64), the Memorandum of Non-Parties Richard Michael DeWine,
Custodian of Records for Mike DeWine for Ohio, and J.B. Hadden in Opposition to Plaintiff’s
Motion to Reconsider Order to Quash Subpoenas (ECF No. 68), and Plaintiff Kilroy’s Reply in
Support of Motion to Reconsider Order to Quash Subpoenas of Mike DeWine, J.B. Hadden, and
Custodian of Records and Motion for Authorization to Take Additional Discovery Related to
Ohio Rev. Code § 3599.45’s Impact on County Prosecuting-Attorney Candidates (ECF No. 69).
For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s
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
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Medicaid goods and services in Ohio. 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
rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiff
also alleges that the statute is unconstitutionally overbroad, effecting many other de minimus
shareholders in publicly traded Medicaid providers. 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 General DeWine to produce all
documentation of the dates in 2009 and 2010 on which he individually or jointly with his wife

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purchased or sold stock in any of the above-mentioned companies. Id.
These three non-parties moved to quash the subpoenas. (ECF No. 29.) On August 24,
2011, this Court granted the non-parties’ motion to quash. (ECF No. 31.)
On August 26, 2011, Plaintiff filed a request for a telephone status conference to “to
discuss and seek the Court’s guidance regarding his discovery plans” in light of the Court’s
decision to grant the non-parties’ motion to quash. (ECF No. 32 at 1.) This Court scheduled a
status conference with the parties and at that conference Plaintiff’s counsel convinced the Court
that some of the information Plaintiff seeks through deposition testimony of the non-party
attorney general and county prosecuting attorney candidates is relevant to support his allegations
that Ohio Revised Code § 3599.45 is unconstitutionally overbroad and that the statute is not
“closely drawn.” Also, Plaintiff’s counsel argued that, in light of Defendant’s new assertion that
he intends to defend against this suit by showing that § 3599.45 in not enforced, Plaintiff is
entitled to discover information as to the factual accuracy of this contention. Plaintiff’s counsel
also indicated that the subpoena issued to Attorney General DeWine (and those anticipated to be
issued to county prosecuting attorney candidates) could be narrowed to avoid the Court’s
objection to the breadth of the subpoena.
At the conference, the parties agreed to negotiate together to attempt to reach some fact
stipulations related to the reach of § 3599.45. The Court indicated that it may be inclined to
revisit its previous order granting the non-parties’ motion to quash if the parties could not come
to an agreed stipulation related to this information.
Ultimately the parties were unable to come to any agreed-upon stipulation and Plaintiff
moved for reconsideration of this Court’s decision granting the non-parties’ motion to quash. In

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that motion, Plaintiff added the new request that he be permitted to depose non-party county
prosecuting attorney candidates. That motion is ripe for review.
II. Standards
This Court has the “inherent power to reconsider interlocutory orders and reopen any part
of a case before entry of a final judgment.” Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir.
1991). The Court invokes that power to reconsider its previous decision granting the nonparties’ motion to quash.
The Court previously relied upon Rule 45 of the Federal Rules of Civil Procedure to
determine whether the subpoenas at issue were appropriately quashed. Rule 45 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 non-party’s] prima facie showing that the discovery [would be] burdensome.”
Katz v. Batavia Marine & Sporting, 984 F.2d 422, 423-24 (6th Cir. 1993).

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III. Discussion
Initially, the Court notes that the subpoenas as they stand currently are exceedingly
broad. The breadth of the information requested was partially responsible for the Court’s
decision to quash the subpoenas. Plaintiff now offers to narrow the scope of the subpoenas.
And, as the Court explains below, it will permit Plaintiff to elicit a very limited category of
information from Attorney General DeWine and the county prosecuting attorney candidates,
leaving the already-issued subpoenas largely, if not entirely, obsolete. As opposed to dissecting
the already issued subpoenas to determine if any of the requests made in them survive this
Opinion and Order, the Court hereby QUASHES the existing subpoenas.
As to the narrowed categories of information Plaintiff wishes to elicit in deposition
testimony, the Court places that information into two groups. First, information about how Ohio
Revised Code § 3599.45 impacts the ability of individuals to contribute to the campaigns of
candidates for attorney general and county prosecuting attorney and impacts the ability of
candidates to raise funds. Second, information related to Defendant’s anticipated defense that
§ 3599.45 is not enforced. This Court must determine whether subjecting non-parties to
depositions in this action to elicit this information poses an undue burden upon them.
To make this determination, the Court first evaluates whether the sought-after
information is relevant. Plaintiff argues that in order to show that the statute at issue is
unconstitutionally broad and that it violates the First Amendment because it is not closely drawn
to match a sufficiently important governmental interest, he must be allowed to determine the
impact of the statute on attorney general and county prosecuting attorney candidates. Plaintiff
posits that the Court erred in determining that the constitutionality of the statute at issue will be

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determined without reference to any of the fact evidence he wishes to elicit from Attorney
General DeWine and/or county prosecuting attorney candidates. The Court agrees that a discrete
category of the information that Plaintiff seeks is indeed relevant. See Fed. R. Civ. P. 26(b)(1)
(“Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.”).
The standard that courts apply to determine whether laws restricting campaign
contributions unconstitutionally impinge on a plaintiff’s rights of association and speech was
established by the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) and its
progeny. In Buckley, the Supreme Court held that contributing to political campaigns is an
activity protected by the First Amendment’s guarantees of free association and free speech. Id.
at 14-19. The Court noted that a contribution restriction impacts a plaintiff’s associational rights
because “[m]aking a contribution, like joining a political party, serves to affiliate a person with a
candidate.” Id. at 22. The Court, however, also noted that
a limitation upon the amount that any one person or group may contribute to a
candidate or political committee entails only a marginal restriction upon the
contributor’s ability to engage in free communication. A contribution serves as a
general expression of support for the candidate and his views, but does not
communicate the underlying basis for the support.
Id. at 20-21. Thus, the Court held that a contribution limitation statute, such as Ohio Revised
Code § 3599.45, will be found constitutional so long as it is closely drawn to match a sufficiently
important governmental interest. Id. at 25.
Plaintiff argues that in order to show that Ohio Revised Code § 3599.45 is closely drawn,
the Supreme Court requires that he determine the “statute’s impact on candidates’ ability to
amass financial resources.” (ECF No. 69 at 2.) To determine this, Plaintiff claims that he needs

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factual evidence as to the actual impact of § 3599.45, not just its potential impact. Plaintiff relies
most heavily on Randall v. Sorrell, 548 U.S. 230 (2006), for this proposition. The Randall Court
invalidated a Vermont campaign contribution statute as violative of the First Amendment. In
determining that the statute at issue was not closely drawn, the Court relied “in particular” upon
“five factors together.” Id. at 253. Of those five factors, four of them viewed the statutory
language and determined how it would potentially effect candidates.
For example, the statute subjected volunteers to the same contribution limit as individuals
giving financial contributions, providing no exception for expenses volunteers would incur such
as travel expenses, “pencils and pads, and so forth.” Id. at 260-61. The Court was concerned
that “any carelessness in this respect can prove costly, perhaps generating a headline,
‘Campaign laws violated,’ that works serious harm to the candidate.” Id. at 260 (emphasis
added). Another example of the Court examining the statutory language to determine its
potential, as opposed to actual, effect is its equal treatment of political parties and individual
contributors. The Court stated:
Or, to take a more extreme example, imagine that 6,000 Vermont citizens each want
to give $1 to the State Democratic Party because, though unfamiliar with the details
of the individual races, they would like to make a small financial contribution to the
goal of electing a Democratic state legislature. And further imagine that the party
believes control of the legislature will depend on the outcome of three (and only
three) House races. The Act prohibits the party from giving $2,000 (of the $6,000)
to each of its candidates in those pivotal races. Indeed, it permits the party to give
no more than $200 to each candidate, thereby thwarting the aims of the 6,000 donors
from making a meaningful contribution to state politics by giving a small amount of
money to the party they support. Thus, the Act would severely inhibit collective
political activity by preventing a political party from using contributions by small
donors to provide meaningful assistance to any individual candidate.
Id. at 258 (emphasis added). Thus, a large part of Plaintiff’s argument will be properly made by
viewing the statutory language and its potential reach.
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However, the Randall Court also relied upon a “race-by-race analysis” of races before the
statute took effect and each party had their experts opine on whether the “contribution limits
would have reduced the funds available” to candidates in competitive races. Id. at 253. The
Court explained that “the record suggests, though it does not conclusively prove, that [the
Vermont statute]’s contribution limits will significantly restrict the amount of funding available
for challengers to run competitive campaigns.” Id. at 253. Plaintiff argues that this is the type of
information he seeks here, i.e., data on Ohio Revised Code § 3599.45’s financial impact on
candidates for attorney general and county prosecutor. Based on Randall, the Court finds that
this evidence is relevant.
As to Plaintiff’s argument related to his overbreadth challenge, he correctly relies upon
case law that provides that litigants “are permitted to challenge a statute not because their own
rights of free expression are violated, but because of a judicial prediction or assumption that the
statute’s very existence may cause others not before the court to refrain from constitutionally
protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). The party
claiming overbreadth bears the burden of demonstrating “from the text of [the law] and from
actual fact,” that substantial overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122 (2003).
Based on this law, the Court concludes that the evidence Plaintiff seeks to gather to show the
effect Ohio Revised Code § 3599.45 has on individual contributors to candidates for attorney
general and county prosecutor is relevant.
The Court now considers the relevance of information related to a candidate’s ability to
contribute to his or her own campaign without violating Ohio Revised Code § 3599.45, the
second category of information Plaintiff seeks. Plaintiff wants to obtain information related to

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whether Attorney General DeWine and/or county prosecuting attorney candidates violated the
statute by donating to themselves at the same time they held stock in a Medicaid provider and
whether these candidates/office holders violated § 3599.45 by accepting contributions from other
holders of Medicaid provider stock. Plaintiff argues:
The Court previously held that this information was not relevant, because “[w]hether
Attorney General DeWine, or any other attorney general or county prosecutor,
violated the statute does not change its reach.” Mr. Kilroy respectfully submits,
however, that in light of the Secretary’s intention to raise a defense that the statute
has not been enforced and would not be enforced, information establishing that the
Attorney General or any other prosecutor violated the statute is highly relevant. If
it is true that the statute has up until now not been enforced—which the Secretary has
not established—it may only be because candidates have been in compliance with
the statute, and violations previously simply had not come to light. Evidence of
potential violations may change whether the statute is likely to be enforced.
(ECF No. 64 at 7-8.)
Plaintiff’s arguments are well taken. That is, if Defendant plans to defend this action by
arguing that § 3599.45 is not enforced, then information as to whether the statute was violated
by, enforced against, or threatened to be enforced against these non-parties is relevant.
The non-parties do not agree that the information Plaintiff seeks is relevant or necessary.
They argue, however, that even if the evidence is found to be relevant and discoverable, they
should not be required to submit to a deposition related to it because it imposes an undue burden
on them. The non-parties argue that Plaintiff’s real intent is to embarrass Attorney General
DeWine, pointing out that it is no coincidence that Plaintiff’s lead attorney in this case is also
running for county prosecutor in Cuyahoga County, Ohio. In response, Plaintiff insists that his
“sole purpose in issuing subpoenas to these third parties is to prove how absurdly broad,
unworkable, and ultimately unconstitutional the contested statute is, by showing its unfair impact
on candidates like Mr. DeWine.” (ECF No. 69 at 1.) In other words, Plaintiff is not concerned
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with the identification of the candidate that did or did not violate the statute (nor does this Court
find the identity of the candidate relevant).
The non-parties certainly raise legitimate concerns. The Court, however, can alleviate
much of the burden upon any non-party by narrowly tailoring the category of information
Plaintiff will be permitted to discover to only information this Court has found to be relevant in
this decision, permitting deposition only by written examination, and by keeping the providers of
the information confidential to everyone except the Court. In balancing the need Plaintiff has for
the information this Court has deemed to be relevant and not cumulative against this less onerous
burden, the Court concludes that the burden upon the non-parties is not undue. This is so even if
the Court were to apply the more stringent standard high ranking officials, such as General
DeWine, enjoy when subpoenaed in matters related to the official’s public duties. See Jones v.
Hirschfield, 219 F.R.D. 71, 75 (S.D. N.Y. 2003).
The Court therefore will permit Plaintiff to submit to this Court written questions relating
to the categories of information this Court has determined are relevant. Specifically, data on
Ohio Revised Code § 3599.45’s financial impact on candidates for attorney general and county
prosecutor and information as to whether the statute was enforced or threatened to be enforced
against the non-parties for violations. Once the Court approves the questions, Plaintiff may issue
the subpoenas for the written depositions. See Fed. R. Civ. P. 30(c)(3). Plaintiff must provide
the questions to the court reporter and inform the reporter that the nature of the deposition is
confidential and that he or she is to treat the information discussed as such. At the depositions,
each non-party is permitted to have counsel. No one other than the deponent and the deponent’s
counsel is permitted to attend the deposition. The court reporter will read the questions to the

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deponent and transcribe the deponent’s response. The officer will then send the transcription
directly to this Court. The Court will redact the identifying information from the transcripts,
provide a new identifying number to the information, and provide that information to Plaintiff.
Plaintiff will, therefore, be provided the information this Court has deemed to be relevant
without imposing an undue burden on the non-parties. If a status conference is necessary to
refine the procedure, the parties may contact this Court and a status conference will be scheduled
to give direction to the parties regarding the procedure to be utilized.
IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN
PART the Motion to Reconsider Order to Quash Subpoenas of Mike DeWine, J.B. Hadden, and
Custodian of Records and Motion for Authorization to Take Additional Discovery Related to
Ohio Rev. Code § 3599.45’s Impact on County Prosecuting-Attorney Candidates. (ECF No. 64.)
The Court QUASHES the existing subpoenas and GRANTS Plaintiff the ability to reissue
and/or issue subpoenas in accordance with the directions set forth in this Opinion and Order.
The providers of the information will be kept confidential to everyone except the Court.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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