In Re: Ohio Execution Protocol Litigation

Filing 1325

ORDER denying 1309 Motion to Compel. Signed by Magistrate Judge Michael R. Merz on 10/20/2017. (MRM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,

Case No. 2:11-cv-1016
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

This Order relates to Plaintiffs
Alva Campbell
and Raymond Tibbetts

Execution Scheduled 11/15/2017
Execution Scheduled 02/13/2018

DECISION AND ORDER ON MOTION TO COMPEL

This method-of-execution case, brought pursuant to 42 U.S.C. § 1983, is before the Court
on Plaintiff Tibbetts and Campbell’s Motion to Compel Discovery (ECF No. 1309), filed at
11:19 p.m. on October 18, 2017. At the conclusion of the deposition of Carol Wright on October
19, 2017, the Court heard oral argument from counsel for all parties.1 At 12:57 p.m. on October
20, 2017, Plaintiffs filed their Reply Memorandum in Support (ECF No. 1316).
The Motion seeks to compel the production of statements made by nine different ODRC
employees to ODRC Counsel Stephen Gray regarding their observations at the execution of Gary
Otte on September 13, 2017, the existence of which was disclosed in a privilege log furnished by
Defendants to Plaintiffs at 3:53 p.m. on Wednesday, October 18, 2017. At the Court’s request,
the documents were provided to the Court for in camera inspection on the afternoon of October
20, 2017.

1

That argument has not yet been transcribed.

1

Among the documents is a statement prepared by Larry Greene which the Court
previously found to be attorney work product. On October 12, 2017, the Court sustained the
privilege objection on the basis that the Plaintiffs had been able to depose Mr. Greene. (ECF No.
1292, PageID 47212-13, citing Fed. R. Civ. P. 26(b)(3)(A)(ii)). That statement continued to be
protected by the prior ruling and the Motion to Compel as to Mr. Greene’s statement is denied on
that basis.
Plaintiffs do not in their instant Motion dispute the correctness of that prior ruling. That
is to say, they at least implicitly concede that these documents are attorney fact work product,
Instead they assert that the privilege has been waived Defendant’s failure to disclose the
existence of the documents and make a timely assertion of privilege. They note that their
document request was made, as the Court’s Scheduling Order required, on September 29, 2017
(ECF No. 1245, PageID 45390, ¶ 5). The same order required responses to be made and filed by
5:00 p.m. on October 6, 2017. Id.
Plaintiffs claim prejudice from being unable to depose some of these witnesses and that
they were “crippled in their ability to fully question those witnesses who were deposed because
Plaintiffs were not made aware that other witnesses had given statements – protected or
otherwise.” (Reply, ECF No. 1309, PageID 47478-79).
In orally opposing the Motion, Defendants’ counsel Joselyn Lowe acknowledged that
neither the witnesses nor the statements had been disclosed prior to production of the privilege
log on October 18, 2017. She claimed this was due to inadvertence and the pressure of the
workload in this case.

2

Analysis

Fed. R. Civ. P. 37 authorizes a district court to sanction a party for violation of his or her
discovery obligations. However, Fed. R. Civ. P. 37(a)(2) expressly requires that a motion to
compel “must include a certification that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or discovery in an effort to obtain it
without court action.” Plaintiffs’ Motion to Compel contains no such certification and in fact
affirmatively represents that “Plaintiffs have not further conferred with Defendants concerning
their position on the motion.” (Motion, ECF No. 1309, PageID 47476, n. 1.) This Court, long
before it became a national rule, has insisted on attorney conferral before a motion to compel is
filed. Local Rule 17(a), effective September 1, 1969, provided that no motion under Rule 37
would be considered until the matter had been explored with opposing counsel “in an effort to
informally handle the matter . . .” On that basis the Motion to Compel is DENIED.
As an additional basis for denial, the Court finds any prejudice to Plaintiffs is minimal or
non-existent. Messrs. Cool, Green, and Woods have all been deposed. In addition to them, the
identity of the other ODRC personnel who gave statements was, according to her deposition
testimony, known to Ms. Wright2 as person who were present at SOCF at the time of the Otte
execution who observed or were in a position to observe the matters about which she was crossexamined at her deposition.
Finally, having examined the statements in camera, the Court finds that none of them
contain information favorable to Plaintiffs’ position(s) regarding what happened at the Otte
execution, assuming that the Court understands that position adequately from the filings and Ms.
2

Mike Davis was not known to her by name, but was known by description as an ODRC employee who was
present.

3

Wright’s deposition. Put another way, had it been asked to authorize these depositions on the
basis of the content of the statements, it would not have done so. That said, the Court will have
the statements available at the time of the hearing and will be able to reconsider this ruling if the
contents of the statements become material, directly or for impeachment.
The Motion to Compel is DENIED.

October 20, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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