Libertarian Party of Ohio et al v. Husted

Filing 134

OPINION and ORDER: 116 MOTION to Compel Depositions of Bradley Smith and Jack Christopher is GRANTED. 121 MOTION to Stay re 116 MOTION to Compel Depositions MOTION OF DEFENDANT SECRETARY OF STATE JON HUSTED TO ST AY DISCOVERY AND FOR PROTECTIVE ORDER AND MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION TO COMPEL DEPOSITIONS is DENIED. Any party may, within five (5) days after this ORDER is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. Responses to objections are due five (5) days after objections are filed; replies due three (3) days thereafter. Signed by Magistrate Judge Terence P Kemp on 7/14/2014. (agm1)

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

Libertarian Party of Ohio,
et al.,

:

Plaintiffs,

:

v.

:
:

Jon Husted, et al.,
Defendants.

Case No. 2:13-cv-953
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:
OPINION AND ORDER

This ballot access case, brought by the Libertarian Party of
Ohio and three individuals, has recently produced a flurry of
discovery-related motions.

The Court will not set forth the

facts extensively (they appear in the Court of Appeals’ decision
of May 1, 2014, see Doc. 107) but will limit its recitation of
the facts to those that relate to the precise issues presented by
each motion being ruled upon.

This Opinion and Order deals with

Plaintiffs’ motion to compel depositions (Doc. 116), the separate
response filed by Secretary of State Jon Husted (Doc. 121)(which
includes a motion to stay discovery and for a protective order),
and Plaintiffs’ reply to that response (Docs. 125).

For the

following reasons, the motion to compel will be granted.
I.

A Brief Factual Background

As the Court of Appeals’ recitation of the facts shows, the
current issue before the Court relates to the invalidation of
certain nomination petitions circulated on behalf of Charlie
Earl, the Libertarian Party’s gubernatorial hopeful, and two
other Libertarian Party candidates.

After local boards of

election verified signatures on those petitions, intervenor
Gregory Felsoci filed a protest.

The protest was initially

referred to Bradley Smith, a law professor who was designated as
a hearing officer and who conducted a hearing on the issue of
whether the protest had merit.

Professor Smith issued a report

on March 7, 2014, recommending that certain petitions and the
signatures on them be invalidated because the “employed by”
information required by Ohio Rev. Code §3501.38(E)(1) had not
been included on the petitions.

Secretary Husted adopted that

report, resulting in the disqualification of the Libertarian
Party candidates for governor, lieutenant governor, and attorney
general.

Of those three candidates, only Charlie Earl is

involved in this case.

Plaintiffs’ motion for preliminary

injunctive relief has been denied by this Court and affirmed on
appeal.
On June 13, 2014, Plaintiffs noticed the depositions of
Hearing Officer Smith and of Jack Christopher, the latter of whom
is described in the notice as the “Defendant-Secretary’s
authorized and acknowledged agent.”

See Docs. 113 and 114.

Almost immediately thereafter, Plaintiffs moved to compel the
depositions.

Although that is procedurally unusual, the parties

agreed, during a telephone conference with the Court, that they
had reached an impasse over whether the depositions would go
forward as noticed, and agreed to have the issue resolved through
briefing on the motion to compel.

That briefing is now complete.

Professor Smith’s role in the case is clear from the prior
opinions, but Mr. Christopher’s is not.

In a letter dated June

12, 2014, which is attachment four to Doc. 116, he is described
as Chief Legal Counsel to the Secretary of State.

The

Secretary’s objection to his being deposed was based, in part, on
his status as counsel for a party; however, Plaintiffs claimed to
be unaware when they noticed his deposition that he was an
attorney, and they proposed to depose him in his capacity as “an
executive official with a central role in Mr. Earl’s exclusion
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from the ballot.”

Doc. 116, attachment 8.

The Secretary’s

opposing memorandum does not provide any more facts about Mr.
Christopher’s status or role in the case other than
characterizing him as the Secretary’s “in-house attorney ....”
Doc. 121, at 17.
There are a number of emails relating to Mr. Christopher
attached to Plaintiffs’ reply (Doc. 125).

They are not

authenticated but the Court will accept them for purposes of this
motion, especially since they do not directly affect the Court’s
ruling.

They show that Mr. Christopher signed his emails as

“General Counsel, Secretary of State Jon Husted.”

He sent a few

emails relating to the procedures for hearing the protest and was
copied on others sent by Brandi Laser Seskes, Election Counsel in
the Secretary of State’s office.

He also wrote a responsive

letter to a public records request made by Plaintiffs to the
Secretary of State’s office.

That letter was sent on June 24,

2014, after the date of the deposition notice.

There do not

appear to be any other facts relating to his role in the protest
procedure.
II.
A.

Analysis

General Arguments against Discovery

The Secretary opposes having either Professor Smith or Mr.
Christopher deposed for reasons specific to each of the two
proposed deponents.

However, he also argues that neither should

be deposed because, for several reasons, it is not appropriate to
go forward now with either this discovery or any discovery.

The

Court will address these general arguments before turning to the
issues specific to each of the two witnesses.
First, the Secretary presents a lengthy argument in support
of his position that until the Court rules on the pending motion
for leave to amend, discovery ought not to proceed.

The Opinion

and Order on the Felsoci deposition (Doc. 133) addresses this
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argument, and for those same reasons the Court rejects it here.
The Court takes Plaintiffs at their word that the discovery they
seek is related to the current complaint and not to claims which
have not yet been asserted and may never become part of the case.
Second, the Secretary contends that even if these two
witnesses might have something to say about Plaintiffs’ asapplied challenge as pleaded in Count Seven of the second amended
complaint, they should not have to say it until Plaintiffs
produce other credible evidence to support what the Secretary
characterizes as a “selective prosecution” claim.

The opposing

memorandum cites to a number of cases, primarily from the
criminal law area, holding that before a party (usually a
criminal defendant) is entitled to conduct discovery on a
selective prosecution claim, it must make a threshold showing of
the validity of that claim using evidence obtained other than
through discovery.

See, e.g., United States v. Armstrong, 517

U.S. 456 (1996); United States v. American Elec. Power Service
Corp., 258 F.Supp. 2d 804 (S.D. Ohio 2003).
The primary defect in this argument is that Plaintiffs are
not pursuing a defense in either a criminal or civil enforcement
case (like American Electric Power, supra) of selective
prosecution.

Rather, as they point out in their reply, this is

an election law case where the Plaintiffs make an affirmative
claim that a statute is unconstitutional as applied.

The

Secretary has not cited any cases holding that, in the context of
such a challenge, the standards for discovery set forth in Rule
26 do not apply, and the Court is aware of no such authority.
Consequently, it need not decide if, as Plaintiffs argue in the
alternative, the evidence that this statute has never before been
applied either to independent contractors generally, or to this
particular independent contractor, is enough to satisfy whatever
threshold showing must be made before discovery can take place.
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Since there are no reasons here to impose a blanket prohibition
on, or a stay of, discovery, the Court now turns to the issues
specific to each proposed witness.
B.

Hearing Officer Smith

Defendants argue that two privileges prohibit the deposition
of Hearing Officer Smith: the deliberative process privilege and
the judicial mental process privilege.

For the following

reasons, the Court concludes that neither of these privileges
erects an absolute bar against taking this deposition.
1.

The Deliberative Process Privilege

The United States Supreme Court has recognized a
deliberative process privilege covering “documents reflecting
advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies
are formulated.”

Dep't of Interior v. Klamath Water Users

Protective Ass'n, 532 U.S. 1, 8-9 (2001) (quoting NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 150 (1975)) (internal quotation
marks omitted).

Plaintiffs do not dispute the existence of this

privilege, but argue that “the deliberative process privilege has
no application when the process itself is questioned, and more
importantly it has no application when the plaintiffs claim
governmental misconduct.”

Motion to Compel, Doc. 116, at 8.

Accordingly, the Court turns to the question of whether the
deliberative process privilege can be overcome here at least to
the extent that a deposition can be convened.
Many courts have held that the deliberative process
privilege is a qualified privilege.

See, e.g., In re Sealed

Case, 121 F.3d 729, 737 (D.C. Cir. 1997); Marriott Int'l Resorts,
L.P. v. United States, 437 F.3d 1302, 1307 (Fed. Cir. 2006);
F.T.C. v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir.
1984); E.E.O.C. v. Burlington N., 615 F. Supp. 2d 717, 720 (W.D.
Tenn. 2009), objections overruled sub nom. E.E.O.C. v. Burlington
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N. & Santa Fe Ry. Co., 621 F. Supp. 2d 603 (W.D. Tenn. 2009).
There are several factors to consider in determining whether the
deliberative process privilege should be overcome, including (1)
the relevance of the evidence sought, (2) the availability of
other evidence, (3) the role of the government in the litigation,
and (4) the potential consequences of disclosure of the
information.

See, e.g., F.T.C. v. Warner Commc'ns Inc., supra at

1161 (9th Cir. 1984) (“Among the factors to be considered in
making this determination are: 1) the relevance of the evidence;
2) the availability of other evidence; 3) the government's role
in the litigation; and 4) the extent to which disclosure would
hinder frank and independent discussion regarding contemplated
policies and decisions”) (citations omitted); see also E.E.O.C.
v. Burlington N., supra at 720-21 (“In balancing these competing
interests, the court should consider several factors, including
(1) the relevance of the evidence sought to be protected; (2) the
availability of other evidence; (3) the seriousness of the
litigation and the issues involved; (4) the role of the
government in the litigation; and (5) the possibility of future
timidity by government employees who will be forced to recognize
that their secrets are violable”)(citations omitted); see also
United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993)
(deliberative process privilege can be overcome if the party
requesting the documents can make “a showing that his need for
the documents outweighed the government's interest in not
disclosing them” (citation omitted)).
Plaintiffs are correct that possible government misconduct
or deficiencies in the deliberative process are factored into any
analysis and, where present, weigh in favor of denying the
privilege.

“[W]here there is reason to believe the documents

sought may shed light on government misconduct, ‘the privilege is
routinely denied,’ on the grounds that shielding internal
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government deliberations in this context does not serve ‘the
public's interest in honest, effective government.’”

In re

Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997) (quoting Texaco
Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867,
885 (1st Cir.1995)(additional citations omitted)); Nat'l
Whistleblower Ctr. v. Dep't of Health & Human Servs., 903 F.
Supp. 2d 59, 66 (D.D.C. 2012) (quoting In re Sealed Case, 121
F.3d at 738); see also Bank of Dearborn v. Saxon, 244 F.Supp.
394, 401–03 (E.D. Mich. 1965) (“the real public interest under
such circumstances is not the agency's interest in its
administration but the citizen's interest in due process”), aff'd
377 F.2d 496 (6th Cir. 1967).

However, a showing of misconduct

is not required in order for the privilege to be overcome.
Given that the privilege is not absolute and that discovery
might reveal reasons why it should not be applied, it is fairly
standard practice to permit a person who may be able to claim
this privilege to be deposed, and to require that the claim of
privilege be made in response to specific questions.

See, e.g.,

United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir. 1974)
(holding that assertions of privilege must normally be raised “as
to each record sought and each question asked so that ... the
court can rule with specificity”); E.E.O.C. v. Kaplan Higher
Educ. Corp., 2011 WL 2115878, *3 (N.D. Ohio May 27, 2011)
(holding, in reliance on Hodgson, that it would be premature to
rule on assertions of privilege prior to a deposition).

That

way, if disputes arise as to whether the privilege was properly
asserted, the Court can consider the matter in context, apply the
factors listed above, and determine whether the privilege was
properly invoked.

While that may prove to be a somewhat

cumbersome process, Plaintiffs should be permitted to make their
record about various matters which, they assert, would allow them
to overcome or test the assertion of the privilege, and a
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deposition appears to be the only way they can do so.
2. The Judicial Mental Processes Privilege
The Supreme Court also recognizes a strong but not absolute
bar to discovery about the mental processes of certain
decisionmakers in administrative agencies as long as they are
performing quasi-judicial functions.

In United States v. Morgan,

313 U.S. 409, 421-22 (1941), the Court determined that the
district court erred in authorizing the deposition of the
Secretary of Agriculture at which he was questioned at length
about the process by which he reached his decision in the matter
at issue.

Courts have construed Morgan to protect “mental

processes of those engaged in investigative or decisional
functions.”

General Engineering, Inc. v. N.L.R.B., 341 F.2d 367,

375 (9th Cir. 1965); see also Drukker Communications, Inc. v.
N.L.R.B., 700 F.2d 727, 731 (D.C. Cir. 1983).

However, the Court

has also stated that the mental processes protection does not act
as an absolute bar to deposing decisionmakers in an
administrative proceeding.

See Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977).

In

Citizens to Preserve Overton Park, the Supreme Court held that
“[a] court may require the administrative officials who
participated in the decision to give testimony explaining their
action,” but it qualified that holding by stating that:
[o]f course, such inquiry into the mental processes of
administrative decisionmakers is usually to be avoided.
United States v. Morgan, 313 U.S. 409, 422 . . . . And
where there are administrative findings that were made
at the same time as the decision, as was the case in
Morgan, there must be a strong showing of bad faith or
improper behavior before such inquiry may be made.
Citizens to Preserve Overton Park, 401 U.S. at 420.

In a

subsequent decision, the Court said that it
ha[d] recognized, ever since Fletcher v. Peck, 6 Cranch
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87, 130-131, 3 L.Ed. 162 (1810), that judicial
inquiries into legislative or executive motivation
represent a substantial intrusion into the workings of
other branches of government. Placing a decisionmaker
on the stand is therefore “usually to be avoided.”
Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971).
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 268 (1977).
Decisions in this Circuit have not added much clarity to the
exact contours of the protection.

The Court of Appeals

recognizes that judicial mental processes are protected.
v. LeCureux, 58 F.3d 214, 221 (6th Cir. 1995).

Perkins

It has also

applied the mental processes protection to non-judicial
officials.
1968).

Warren Bank v. Camp, 396 F.2d 52, 56-57 (6th Cir.

In Warren Bank, the Court of Appeals, citing Morgan, held

that the appellant was not entitled to take the depositions of
the Comptroller of Currency in order to “probe his mind as to
exactly why he saw fit to exercise his discretion as he did in
relation to the grant of this charter” where the appellant had
failed to show “a prima facie case of misconduct.”
(citations and internal quotations omitted).

Id. at 56

And this Court has

permitted defendants to assert the judicial mental processes
privilege during the course of a deposition in order to prevent a
Mayor Court’s Magistrate from answering questions about the
thought process underlying his decisions.

Drake v. Village of

Johnstown, 2011 WL 4091846 (S.D. Ohio Sept. 14, 2011).

Courts

from other circuits are generally in accord with this approach.
See, e.g., Magnivision, Inc. v. Bonneau Co., 115 F.3d 956,
960 (Fed. Cir. 1997) (“Absent proof of inequitable conduct . . .
the patent examiner's thought processes are shielded from
discovery as to their ‘bases, reasons, mental processes, analyses
or conclusions.’” (citation omitted)); Franklin Sav. Ass'n v.
Ryan, 922 F.2d 209, 211 (4th Cir. 1991) (“Since Morgan, federal
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courts have consistently held that, absent ‘extraordinary
circumstances,’ a government decision-maker will not be compelled
to testify about his mental processes in reaching a decision,
‘including the manner and extent of his study of the record and
his consultations with subordinates.’” (citations omitted)); Bank
of Commerce of Laredo v. City Nat. Bank of Laredo, 484 F.2d 284,
288 (5th Cir. 1973) (“When findings of fact, rendered
contemporaneously with the concomitant administrative decision,
are subsequently available, a reviewing court may not require the
agency officials who participated in that decision to give
testimony explaining their action unless there has been a strong
showing of bad faith or improper behavior,” citing Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 420)).
The parties’ briefing on this issue relies heavily on Ohio
law.

However, pursuant to Federal Rule of Evidence 501, unless

provided otherwise by the United States Constitution, federal
statute, or rules proscribed by the Supreme Court, “when dealing
with a federal question . . . privilege ‘shall be governed by the
principles of the common law as they may be interpreted by the
courts of the United States in light of reason and experience.’”
Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992)
(quoting F.R.E. 501).

Nevertheless, the Supreme Court has

indicated “that the privilege law as developed in the states is
[not] irrelevant.”

In re Zuniga, 714 F.2d 632, 639 (6th Cir.

1983) (citing United States v. Gillock, 445 U.S. 360, 369 n. 8
(1980)).

Thus, the Court may “resort to state law analogies for

the development of a federal common law of privileges in
instances where the federal rule is unsettled.”

Wm. T. Thompson

Co. v. Gen. Nutrition Corp., Inc., 671 F.2d 100, 104 (3d Cir.
1982) (citation omitted); see also Mem'l Hosp. for McHenry Cnty.
v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981) (“‘A strong policy
of comity between state and federal sovereignties impels federal
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courts to recognize state privileges where this can be
accomplished at no substantial cost to federal substantive and
procedural policy.’” (citations omitted)).

With this background

in mind, the Court will conduct a brief review of Ohio law as it
relates to the mental process privilege and, in particular, if it
applies to a hearing officer in a ballot protest matter.
The Supreme Court of Ohio has also recognized a judicial
mental processes privilege.

In TBC Westlake, Inc. v. Hamilton

County Board of Revision, 81 Ohio St.3d 58, 64 (1998), the court
cited to Morgan and also to Ohio cases and “conclude[d] that the
judicial mental process privilege, a common-law privilege, is
state law.”

There, it prohibited disclosure of a report

generated as a part of a quasi-judicial proceeding.

In

describing the privilege, the Ohio Supreme court approvingly
quoted language stating that the privilege applied to an
“administrative officer, [who was] sitting in a quasi-judicial
capacity and required to reach a conclusion based on evidence
presented to him.”

Id.

(citation and internal quotation marks

omitted).
The parties cite to a number of other state court decisions
discussing what constitutes a quasi-judicial proceeding for
different purposes.

Those cases list factors such as whether the

decisionmaker exercises discretion to settle a dispute and
whether the law setting forth the proceeding mandates notice, a
hearing, and the opportunity for the introduction of evidence.
See TBC Westlake, Inc., 81 Ohio St. 3d at 62 (applying the
privilege to the Board of Tax Appeals); Garrett v. City of
Columbus, 2010 WL 3292958, *3 (Franklin Co. App. Aug. 19, 2010)
(observing that “[a] proceeding does not qualify as
quasi-judicial unless the law mandates that the proceeding
include notice, a hearing, and the opportunity for the
introduction of evidence”); State ex rel. Eaton v. Erie Cty. Bd.
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of Elections, 2006 WL 513910, *6 (Erie Co. App. Feb. 28, 2006)
(for purposes of determining whether Ohio’s “Sunshine Law”
applied, a hearing is a quasi-judicial proceeding if it requires
the decisionmaker to weigh the evidence and exercise discretion).
Of these cases, however, the only one that addresses the
privilege at issue is TBC Westlake, Inc., and its discussion of
whether a proceeding is quasi-judicial also arguably relates to
Ohio’s “Sunshine Law.”

Accordingly, even if Ohio law were deemed

controlling, the factors identified in these cases are not
dispositive of the question of how the mental process privilege
is to be applied in the context of a discovery dispute.
In their reply brief, Plaintiffs suggest that the Ohio
courts have implied a requirement that proceedings be appealable
to Ohio’s Courts of Common Pleas in order to be quasi-judicial
for purposes of the judicial mental processes privilege.

They

claim that because the Ohio Constitution provides that “courts of
common pleas may only review administrative decisions resulting
from quasi-judicial proceedings,” Garrett, supra, only those
administrative decisions which are appealable to courts of common
pleas result from quasi-judicial proceedings.
false syllogism.

However, that is a

The limitation of the Ohio courts’ jurisdiction

to certain types of quasi-judicial proceedings does not
necessarily mean that the Ohio legislature either must provide,
or has provided, for an appeal from every quasi-judicial
administrative proceeding.
Although there is only limited guidance as to what
constitutes a quasi-judicial administrative proceeding, the Court
concludes that both federal and Ohio law would extend the
judicial mental processes protection to Hearing Officer Smith’s
decisionmaking process at issue in this case.

As set forth in

the Court of Appeals’ recitation of the facts, Hearing Officer
Smith conducted a hearing at which he received testimony, and he
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issued a written report and recommendation.

(Doc. 107 at 8-9).

He did so pursuant to § 3513.05 of the Ohio Revised Code, which
requires notice and a hearing, and provides that at the hearing,
the election officials at the hearing “shall hear the protest and
determine the validity or invalidity of the declaration of
candidacy and petition.”

All of these facts suggest that the

proceeding would be considered quasi-judicial for different
purposes under Ohio law.

Furthermore, the proceeding at issue

appears to be similar in character to the proceedings in which
the judicial mental processes privilege has been applied.
Plaintiffs, attempting to avoid this conclusion, argue first
that the Ohio Secretary of State is an executive officer rather
than a judicial or quasi-judicial officer.

(Doc. 116 at 11).

In

support of that argument, Plaintiffs cite Maloney v. Rhodes, 45
Ohio St.2d 319 (1976), a decision interpreting Section 16,
Article II of the Ohio Constitution, which contains the process
by which bills are approved by the Governor and filed with the
Secretary of State.

There, the Court determined that the

Secretary’s role in filing bills that become laws was ministerial
and not discretionary.

Id. at 322.

While the Maloney court

generally discusses the executive nature of the Secretary’s
position and his lack of authority to declare a law
constitutionally invalid, it does not address whether he has
authority to make administrative decisions that are of a quasijudicial character.

Nor does it appear that the fact that an

executive or administrative official has some ministerial duties
has precluded other courts from applying the judicial mental
processes privilege when that official acts in a quasi-judicial
capacity.
Next, Plaintiffs argue that the proceeding at issue was not
quasi-judicial because, in a case decided by Judge Sargus
involving the same type of process (i.e. a decision by the
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Secretary of State affirming a hearing officer’s decision
upholding a nominating petition protest), this Court did not
abstain from proceeding under Younger v. Harris, 401 U.S. 37
(1971).

See Blankenship v. Blackwell, 341 F. Supp. 2d 911, 919

(S.D. Ohio 2004).

Plaintiffs argue that Younger requires

abstention in any case where a party seeks to enjoin a quasijudicial state administrative action, and because this Court did
not abstain in Blankenship, Judge Sargus necessarily held that
the Secretary’s decision was not quasi-judicial.
Without parsing Plaintiffs’ summary of the Younger doctrine
or characterization of the Blankenship holding, the Court is not
persuaded that the test for whether the court must abstain under
Younger is identical to the test for whether an administrative
action is quasi-judicial for purpose of applying the judicial
mental processes privilege.

Given some of the different

rationales for applying the Younger doctrine and the judicial
mental processes privilege, it is reasonable to assume that the
two analyses will not draw the same lines as to what agency
proceedings are protected.

Compare New Orleans Pub. Serv., Inc.

v. Council of City of New Orleans, 491 U.S. 350, 364 (1989)
(Younger doctrine is based primarily on considerations of comity,
including “a proper respect for state functions, a recognition of
the fact that the entire country is made up of a Union of
separate state governments, and a continuance of the belief that
the National Government will fare best if the States and their
institutions are left free to perform their separate functions in
their separate ways” (citation and internal quotation marks
omitted)) with TBC Westlake, Inc., 81 Ohio St. 3d at 63
(permitting inquiry into judicial mental processes “would intrude
upon a judge's subjective thoughts and deliberations, threatening
the orderly administration of justice”).

Furthermore,

Blankenship does not discuss what constitutes a quasi-judicial
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administrative proceeding; the Younger argument made in that case
related to a pending state court mandamus action.

For those

reasons, the Court finds that Plaintiff’s reliance on Blankenship
is misplaced.
Plaintiffs also argue that electoral decisions are
specifically relegated to the political branch of government
rather than the judicial branch.

The cases they cite do not

address the issue before the Court here and do not shed light on
this issue, however.

See Thompson v. Redington, 92 Ohio St. 101,

109 (1915) (addressing separation of powers question regarding
whether the General Assembly had the authority to confer
jurisdiction upon the Courts of Appeals to hear and determine
election contests); Stanton v. State Tax Commission, 114 Ohio St.
658 (Ohio 1926) (also addressing separation of powers question).
Plaintiffs turn next to case law considering absolute
judicial immunity from liability and argue that those cases
require that decisionmakers be truly independent in order to be
entitled to immunity.

Plaintiffs further argue that this same

requirement should be adopted in the context of judicial mental
processes privilege.

Plaintiffs have not pointed to any case law

indicating that other courts have adopted this part of the
judicial immunity test in the context of applying the judicial
mental processes privilege.

On the other hand, in Drake v.

Village of Johnstown, 2011 WL 4091846 (S.D. Ohio Sept. 14, 2011)
this Court assumed that a Mayor’s Court Magistrate’s actions were
colorably judicial notwithstanding his testimony that he did not
view himself as a neutral but rather saw himself as aligned with
the Village’s tax collection efforts.

At any rate, Plaintiffs

state that they do not have any reason to believe that Hearing
Officer Smith was not independent.

(Doc. 116 at 15-16).

Plaintiffs also argue that this proceeding was not quasijudicial because the Secretary has the authority to investigate
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and to reject petitions for noncompliance even in the absence of
a valid protest.

(Doc. 116 at 17).

While the Secretary may have

that authority, that is not how he proceeded in this case.
Lastly, Plaintiffs do not attempt to overcome the privilege
by making a prima facie case of misconduct by Hearing Officer
Smith or by alleging bad faith or misbehavior.
16).

(Doc. 116 at 15-

Consequently, the Court concludes that, on the basis of

this record, the judicial mental process privilege applies.
Having so concluded, however, the Court also notes that
the claims in this case involve issues beyond the substance of
the Hearing Officer’s decision.

Plaintiffs have not said that

they intend to depose him exclusively on the subject of how he
reached his decision.

Consequently, although it seems clear that

he would not have to answer those types of questions, for the
same reason that the Court has found that the deliberative
process privilege does not entirely preclude the deposition, it
finds neither does the judicial mental processes privilege.
Rather, the Court will permit the deposition to proceed subject
to this ruling.

At the deposition, should Hearing Officer Smith

be asked questions which intrude into his mental processes, the
Secretary may be entitled to invoke the judicial mental processes
privilege and direct him not to answer such questions.

In light

of this ruling, Plaintiffs may reconsider their intent to depose
him unless they have process-related questions to ask, or unless
they wish to preserve the record with respect to the application
of the judicial mental process privilege by making clear, at a
deposition, what questions they want to have answered about the
decision-making process.

But they are entitled to make that

record, and a deposition seems the best way to permit them to do
so.
C.

Mr. Christopher

As the Court noted in its separate Opinion and Order
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relating to the motion to compel Mr. Felsoci’s deposition, the
general rule is that “[u]nder the liberal discovery principles of
the Federal Rules” a party is “required to carry a heavy burden”
to show why a properly-noticed deposition should not go forward.
See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.
1975).

One of the ways that a party can meet this burden is to

show that the proposed deponent falls into a category of
witnesses, like heads of agencies, CEOs of large corporations, or
the opposing party’s attorney, who are easy targets for
harassment, and for whom the burden of showing the
appropriateness of the deposition may shift to the requesting
party.

See, e.g., Salter v. Upjohn Co., 593 F.2d 649 (5th Cir.

1979); see also Shelton v. American Motors Corp., 805 F.2d 1323
(8th Cir. 1987).

The Secretary contends that Mr. Christopher is

his attorney and, as such, Plaintiffs must make a particularized
showing of need in order to be permitted to depose him.

The

Secretary relies heavily on Gruenbaum v. Werner Enterprises, Inc.,
270 F.R.D. 298, 309-10 (S.D. Ohio 2010) in support of this
argument.

Gruenbaum, a case arising out of a fatal automobile
accident, involved these facts.

Plaintiff sought to depose the

in-house counsel of the trucking company defendant, about the
company’s investigation of serious accidents and its efforts to
prevent them from occurring.

However, the Court denied a motion

to compel the deposition, applying the traditional three-part
test developed in Shelton v. General Motors, 805 F.2d 1323, 1327
(8th Cir. 1986), and concluding that the plaintiff had not
demonstrated that the attorney would have any non-privileged
testimony to offer, that his testimony would add anything to
testimony on the same subject provided by witnesses who had
already been deposed, and, perhaps most significantly for
purposes of this case, the he “was involved prior to litigation
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and helped develop litigation strategy ....”

Gruenbaum, at 310.

It does not appear that in Gruenbaum there was any disagreement
about whether the Shelton test, which was created in the context
of a request to depose an in-house attorney who had been
designated by her employer, American Motors, to supervise the
litigation at issue, should apply.

The Secretary’s argument

appears to assume that Shelton applies to every request to depose
an attorney who works “in-house” for a party to litigation
without regard to that attorney’s role in the litigation itself.
The issue is not quite that simple.

As this Court explained

in Williams v. Wellston City Sch. Dist., 2010 WL 4513818 (S.D.
Ohio Nov. 2, 2010), the primary rationale behind Shelton’s
imposition of a burden on a requesting party to show why it is
entitled to take a deposition - a reversal of the usual procedure
which places the burden of persuasion on the party seeking
protection - is to protect against the discovery of trial or
litigation strategy.

Consequently,

[w]hen the attorney whose deposition is requested is
not litigation counsel, is not in-house counsel who is
involved to some extent in directing litigation, or is
not an attorney who has advised the client concerning
the same or similar litigation or has helped develop
its defense strategy, the reasons for applying Shelton
are much less compelling because there is little or no
risk that the attorney's testimony might reveal any
litigation strategy, or that the purpose of the
deposition is to drive a wedge between the opposing
party and its current counsel.
Id. at *5.

See also Ellipsis, Inc. v. Color Works, Inc., 227

F.R.D. 496, 497 (W.D. Tenn. 2005)(“the Shelton test should be
limited to those instances where the attorney to be deposed is
either trial/litigation counsel or the subject matter of the
deposition may elicit litigation strategy”); Cheesemore v.
Alliance Holdings, Inc., 2011 WL 4458782 (N.D. Ohio Sept. 23
2011)(declining to apply Shelton to proposed deposition of

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opposing counsel to the extent that the questioning related to
their prior role as transactional counsel and not their current
role as litigation counsel).

Of course, it also makes sense that

the burden of producing evidence to show what role counsel
actually plays in a case - assuming that the answer to this
question is not obvious, as it would be for outside litigation
counsel and perhaps for in-house counsel who have entered an
appearance in the case - should be on the party asserting that
Shelton applies, since that party is in the best position to know
exactly what counsel’s role was or is.
Here, as noted, beyond identifying Mr. Christopher as
General Counsel to the Secretary of State, the Secretary has
presented no evidence suggesting that Mr. Christopher has been
actively involved in this case, either as a supervising attorney
for the litigation or as someone who has been involved in
formulation of litigation or trial strategy.

Further, Plaintiffs

have not expressed any intent to question him about those
matters, but rather to depose him on his role in the process
through which the protest was adjudicated.

Given the current

factual record, there is no basis for applying Shelton (or
Gruenbaum), and the question then becomes whether the Secretary
has advanced other persuasive reasons in support of his refusal
to permit Mr. Christopher to be deposed.
The Secretary makes a brief argument, which is really part
of his analysis of the Shelton factors, that “Plaintiffs have not
demonstrated that Mr. Christopher’s deposition testimony is
relevant.”

See Doc. 121, at 17.

Commendably, the Secretary does

not present this as a stand-alone argument, and has not provided
any evidence in support of the claim that Mr. Christopher’s
testimony would not be relevant; rather, the Secretary, relying
on Shelton, contends the burden is on Plaintiffs to show the
opposite.

Of course, even had the Secretary made an argument
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about relevance, he would have faced a very heavy burden of
showing that Mr. Christopher could not be asked a single relevant
question.

See, e.g. Naftchi v. New York University Medical

Center, 172 F.R.D. 130, 132 (S.D.N.Y. 1997).
One final point is in order concerning Mr. Christopher.

As

an attorney, he may well possess privileged information, and it
is possible that Plaintiffs’ questioning of him may stray into
areas where the attorney-client privilege would apply.

Nothing

in this order should be read either as suggesting that he can be
questioned without due regard to the attorney-client privilege or
that he may not properly invoke that privilege if a question
calls for the disclosure of privileged information.

The order

goes no further than permitting Plaintiffs to convene a
deposition; all of the other rules relating to discovery and
depositions still apply.

III.

Conclusion and Order

Reduced to its essence, Plaintiffs’ motion to compel the
depositions of Bradley Smith and Jack Christopher (Doc. 116) is
granted.

The Secretary’s motion for a stay of discovery and for

a protective order, contained in Doc. 121, is denied.

Further,

given the need for all decisions in this case to be expedited,
the Court will shorten the time for seeking reconsideration of
this order to five days and will shorten the other related
deadlines accordingly.
IV.

Motion for Reconsideration

Any party may, within five days after this Order is filed,
file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due five days after objections are
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filed and replies by the objecting party are due three days
thereafter.

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.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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