In Re: Ohio Execution Protocol Litigation
DECISION AND ORDER SUSTAINING DEFENDANTS' OBJECTIONS TO INTERROGATORIES. Signed by Magistrate Judge Michael R. Merz on 10/11/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
Case No. 2:11-cv-1016
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
This Order relates to Plaintiffs
Campbell, Tibbetts, and Gapen
DECISION AND ORDER SUSTAINING DEFENDANTS’
OBJECTIONS TO INTERROGATORIES
This method-of-execution case, brought pursuant to 42 U.S.C. § 1983, is before the Court
on the State Defendants’ responses to Interrogatories, Requests for production of Documents,
and Requests for Admissions (ECF No. 1285).
Plaintiffs propounded written discovery requests pursuant to this Court’s Scheduling
Order on Motions for Stay and Preliminary Injunction (ECF No. 1245), issued September 21,
2017, as a result of the scheduling conference held that day in anticipation of motions for
preliminary injunction from Plaintiffs Alva Campbell and Raymond Tibbetts, the next two
Plaintiffs with scheduled execution dates. The Order provides at ¶ 5
Written Discovery. Each party shall serve and file1 any request
for written discovery (interrogatories, requests for admission)
related to the Hearing by 5:00 p.m. on September 29, 2017. The
party on whom such requests are served shall file and serve written
responses not later than 5:00 p.m. on October 6, 2017.
Id. at PageID 45390. The parties referred to in this Order are Raymond Tibbetts and Alava
Campbell, Jr., and the hearing referred to is the preliminary injunction hearing for those two
Plaintiffs set in ¶ 4 for October 23, 2017. Nothing in the Order refers to Plaintiff Larry Gapen
who is not a party to the preliminary injunction proceeding. In fact, Mr. Gapen does not have an
execution date scheduled because, inter alia, his habeas corpus case is stayed in this Court and
pending before the Montgomery County Common Pleas Court on a motion for leave to file a
delayed motion for new trial. Nothing in the Scheduling Order should have been interpreted as
permitting Gapen’s counsel to propound interrogatories as this time in the litigation, much less to
obtain expedited responses.
Defendants have objected to the September 29, 2017, interrogatories in part because they
exceed the limit of twenty-five interrogatories, counting discrete subparts, imposed by Fed. R.
Civ. P. 33(a)(1) without leave of Court. That limitation was part of the practice of this Court by
local rule long before the national rules were amended to imposed that limit. That objection is
well taken and is hereby SUSTAINED.
October 10, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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