Ketter v. City of Newark, Ohio et al

Filing 69

ORDER granting 66 Motion to Stay. Signed by Magistrate Judge Mark R. Abel on 6/20/13. (sh1)

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

Robert Gregory Ketter,
Plaintiff

:

City of Newark, Ohio, et al.,
Defendants

Civil Action 2:11-cv-00734

:

v.

:

Judge Watson

:

Magistrate Judge Abel

:

ORDER
This matter is before the Magistrate Judge on defendants City of Newark, Ohio,
Bob Diebold, Judith Carr, Donna Sears, the Newark Civil Service Commission, Richard
Hughes, and Herbert Koehler’s June 17, 2013 motion to stay enforcement of my June 4,
2013 Order (doc. 66).
In my June 24, 2013 Order, defendants were ordered to identify all outside
counsel retained by defendants to provide legal services in human resource matters
since 2003, including a description of the services provided, the length of
representation, and the amount of fees billed. Defendants were also ordered to produce
the fee agreements and billing invoices of outside counsel. Defendants were ordered to
comply with the Order within fourteen days.
Defendants argue that the June 24, 2013 Order granting plaintiff’s motion to
compel should be stayed until the Court decides their motion for reconsideration.
1

Defendants argue that the Order requires the production of privileged documents and
compliance with the Order would cause a substantial burden on defendants.
Defendants also argue that forcing them to produce the documents within fourteen
days undermines their right to file a motion for reconsideration. Defendants maintain
that the Order was based on plaintiff’s unsubstantiated argument that there are only six
applicable human resource cases.
Defendants contend that the documents responsive to plaintiff’s request are
contained with approximately 75 bankers boxes in an off-site storage facility. The City’s
checks, invoices, and billing records are not separated by legal and non-legal materials,
and the City will be required to manually sort through all 75 boxes to locate the bills
and invoices requested by plaintiff. Once the City locates the legal invoices, they would
need to separate the human resource related invoices from non-human resource related
matters. Then, each invoice would need to be reviewed line-by-line to redact privileged
communications. The City argues that it may not have the requested legal invoices in its
possession given its retention policy of maintaining the current year and the three prior
years. As a result, any documents prior to 2009 may be incomplete or destroyed.
Defendants argue that the task of searching for the records will be difficult and at
the expense of taxpayers. The records are maintained by the City Auditor’s office,
which has suffered a severe downsizing. Complying with the discovery request would
take a considerable amount of time, and the City Auditor’s office only has five

2

employees who are in the midst of several year-end projects in addition to a four year
software transition.
Defendants further argue that the Order should be stayed because it would
require the production of privileged information.
Defendant’s motion for a stay demonstrates that prior to my Order, defendants
took no steps to look for the disputed documents and determine what would need to be
done to locate, review and produce them. In response to plaintiff’s motion to compel,
defendants only reference to the burden of production read: "Plaintiff’s interrogatories
are improper because discovery requests for information that pre-dates the alleged
violation is not relevant and is unduly burdensome." Doc. 53, p. 3, PageID 1049
(Emphasis added. Citations omitted). All evidence and arguments supporting a party's
position must be submitted with that party's principal brief. S.D. Ohio Civ. Rule 7.2(d).
Failure to do so is not fair to the party opponent and is wasteful of judicial resources.
Had defendants been diligent in responding to plaintiff’s initial discovery request, the
difficulties in producing this discovery would have been known prior to a ruling on
plaintiff’s motion to compel.
Despite defendants’ apparent lack of diligence, however, the motion to stay
enforcement of my June 4, 2013 Order (doc. 66) is GRANTED because should the
motion to reconsider be granted defendants would have unnecessarily expended time
and money producing the documents. Defendants are ORDERED to produce the
documents in accordance with my June 4, 2013 Order within fourteen (14) days of any
order denying their motion for reconsideration.
3

Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and
Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days
after this Order is filed, file and serve on the opposing party a motion for
reconsideration by the District Judge. The motion must specifically designate the
Order, or part thereof, in question and the basis for any objection thereto. The District
Judge, upon consideration of the motion, shall set aside any part of this Order found to
be clearly erroneous or contrary to law.
s/Mark R. Abel
United States Magistrate Judge

4