Libertarian Party of Ohio et al v. Husted

Filing 157

OPINION & ORDER: 129 Motion to Compel is denied; 130 Motion to Compel is deferred pending further proceedings in accordance with this order. Signed by Magistrate Judge Terence P Kemp on 7/31/2014. (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, is now before the Court to consider
two separate motions to compel production of documents filed by
the Plaintiffs.

One is directed to Secretary of State John

Husted, and the other to intervening defendant Gregory Felsoci.
The Court addresses each in turn.
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 May 21, 2014, Plaintiffs served document requests on the
Secretary of State.
Felsoci.

Six days later, they served requests on Mr.

Both requests were met with objections.

However, the

Secretary of State has since produced numerous documents plus a
privilege log.

Mr. Felsoci produced neither documents nor a

privilege log as part of his original response, but he has now
served and filed a privilege log.

See Doc. 155.

All of the

motions are fully briefed, including a sur-reply on the motion
relating to the Secretary of State.

Plaintiffs have moved to

strike it, and they are correct that leave to file should have
been requested.

However, the sur-reply does add focus to the

issues raised in the motion, so the Court will deny the motion to
strike.

Because the issues relating to each set of documents

requests differ, the Court will analyze each separately.
II.
A.

Analysis

Documents Requested from the Secretary of State

Plaintiffs served a five-part document request on the
Secretary.

In their reply, they agree with the Secretary that

the first two parts are no longer at issue.

That leaves parts

three, four, and five.
These three document requests describe different broad
categories of documents: first, communications of any kind
related to the 2014 re-election campaigns of Governor Kasich,
Attorney General DeWine, or Secretary of State Husted (Request
No. 3); second, communications related to Ohio’s “minor parties”
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(Request No. 4); and third, communications concerning a host of
organizations and individuals, most significantly Mr. Felsoci and
his attorneys, the Ohio Republican and Democratic Parties, and
the Libertarian Party and candidates associated with it (Request
No. 5).

They all specify the same time frame: September 1, 2013

to the present.

See Doc. 129.

The Secretary responded to each of these requests by
suggesting that they required clarification.

However, the

Secretary produced every non-privileged document in his
possession relating to the protests involving both Charlie Earl
and Steven Linnabary (the Libertarian Party candidate for
Attorney General).

Otherwise, after having asked for but not

receiving more clarity, the Secretary concluded that, in essence,
these requests would require production of virtually every
election-related document maintained by the Secretary of State’s
office from September 1, 2013 forward, which would include a huge
volume of irrelevant information.

Further, the documents could

not be produced for inspection in any reasonable fashion since
these kinds of documents are not organized by date.
The Court agrees with the Secretary that the requests are
impermissibly overbroad.

It is not easy to find a precise

definition of what makes a discovery request so broad that an
answer need not be provided.

Certainly, one component of that is

that the request “seeks both relevant and irrelevant
information.”

See Corrigan v. Methodist Hosp., 158 F.R.D. 54, 57

(E.D. Pa. 1994).

Another is that the request is so “nebulous” as

to prevent a court from “craft[ing] an order to compel production
of specific or identifiable documents,” see Woods v. Kraft Foods,
Inc., 2006 WL 2724096, *11 (E.D. Cal. Sept. 22, 2006).

And a

request may be deemed overbroad “if it is couched in such broad
language as to make arduous the task of deciding which of
numerous documents may conceivably fall within its scope.”
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Audiotext Communications Network, Inc. v. US Telecom, Inc., 1995
WL 625962, *6 (D. Kan. Oct. 5, 1995).
Request 3 is clearly not limited to matters relating to the
exclusion of Plaintiff Earl from the ballot due to the Felsoci
protest.

It is not hard to imagine that the universe of

documents having some relationship to the 2014 candidacy of
Messrs. Kasich, DeWine and Husted includes many, many documents
that are completely irrelevant to this case even under a broad
theory of intentional misapplication of the governing statute.
Even if there were some small amount of relevant documentation
covered by this request, it should not be the task of either the
Secretary of State or the Court to define it, especially given
the unsuccessful efforts made by the Secretary’s counsel to
obtain some clarification about what relevant information is
being sought.
Request 4 suffers from the same defect, calling for
production of any communication of any nature - again not limited
to specific subjects or issues - between the Secretary of State’s
office and any recipient which mentions, for any reason, any of
Ohio’s “minor” political parties and their candidates.

The same

is true of Request 5, which, although it mentions some relevant
matters such as communications with Mr. Felsoci and his lawyers which presumably have been produced, at least as they relate to
his protest - also sweeps up any communications from any
Secretary of State office employee to any other person which
mentions the Libertarian Party, the Ohio Republican Party, and
the Ohio Democratic Party from September 1, 2013 onward, without
limiting such communications to a subject that has something to
do with the claims made in the Second Amended Complaint.
These are the type of nebulous requests calling for the
production of both relevant and irrelevant information that have
led courts to declare them impermissibly overbroad.
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The Court

could not begin to fashion an order which would require the
Secretary to locate and produce whatever relevant documents might
exist within these three broad categories.

It will therefore

deny the motion to compel directed to the Secretary of State.
There is one other issue raised by the parties’ briefing on
the motion.

The Secretary has produced a privilege log.

Plaintiffs ask the Court to conduct an in camera review of every
document for which privilege is claimed.

The Secretary does not

object, but correctly points out that without at least some
facial showing that a claim of privilege was improperly made,
Courts do not routinely inspect such documents.

Nor could they,

given the number of discovery documents that, at any one time,
have been designated as privileged on privilege logs created in
cases pending before the Court.

Absent some reason to believe

that the Secretary’s claim of privilege as to any specific
document or group of documents on the privilege log is not wellfounded, the Court declines the invitation to examine them all in
camera.

See, e.g., United States ex rel. Burns v. Family

Practice Associates of San Diego, 162 F.R.D. 624, 627 (S.D. Cal.
1995)(“Prior to an in camera review there must first be a
sufficient evidentiary showing of a legitimate issue as to
application of a privilege or other protection”).
B.

Documents Requested from Mr. Felsoci

The documents requests served on Mr. Felsoci present some
different issues.

The last three document requests served on him

appear to be identical to Requests 3, 4, and 5 served on
Secretary Husted, but they are not at issue here because Mr.
Felsoci has responded that he has no responsive documents, so the
breadth of those requests is not pertinent to the motion to
compel.

The first two (which differ from Requests 1 and 2 served

on Secretary of State Husted) are clearly not overbroad (although
Mr. Felsoci interposed the boilerplate objection of “overbroad,
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unduly burdensome and harassing” to each of them); rather, each
is specific, calling for the production of documents which would
show who retained and is paying Mr. Felsoci’s attorneys.
In his opposing memorandum, Mr. Felsoci advances two
arguments in support of his refusal to produce such documents.
First, he asserts that they are not relevant to any claim or
defense in this case and are therefore not discoverable.

Second,

he claims that the requests seek “communications between
Felsoci’s trial counsel and their clients” and that these
communications are protected by “attorney-client privilege, workproduct and ... client confidentiality.”

Memorandum of

Intervening Defendant Gregory Felsoci in Opposition to
Plaintiffs’ Motion to Compel Production of Documents, Doc. 147,
at 9.

Apart from a brief citation to Ohio Rule of Professional

Conduct 1.6, Mr. Felsoci does not provide any support for this
argument, but spends the balance of his response explaining why
he was not required to create a privilege log for these documents
- mainly based on his view that if the documents in his
possession are not relevant and are being withheld on those
grounds, a privilege log is unnecessary.

As noted above, despite

this argument, he has now created such a log.
Plaintiffs argue that Mr. Felsoci’s failure to provide a
privilege log is a waiver of any privilege which might be
asserted.

However, the Advisory Committee notes to Rule

26(b)(5), part of the 1993 amendments to the Civil Rules,
describe a situation where a party withholds documents on grounds
of undue burden, without providing a privilege log, and is then
entitled to create a privilege log if the court disagrees and
orders the documents to be produced.

That reasoning may apply

here, although there is certainly the potential for improper
gamesmanship to occur when a party unilaterally declares
documents to be irrelevant and then asserts privilege if the
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court disagrees.

If a party has done so without an arguable

basis, a court could find a waiver.

Rather than delve more

deeply into that issue, however, the Court assumes without
deciding that the privilege log now provided by Mr. Felsoci is
timely, and it turns to the merits of the issues raised by his
response.
The relevance objection is based primarily upon Judge
Watson’s comments at the preliminary injunction hearing, which
are quoted at length in Mr. Felsoci’s memorandum.

The Court

addressed this issue in the Opinion and Order concerning Mr.
Felsoci’s deposition (Doc. 133), concluding that Judge Watson’s
comments were not made in the context of what might be relevant
for discovery purposes, and that information about who was behind
Mr. Felsoci’s protest and litigation activity might be relevant
either as admissible evidence or as a gateway to such evidence.
Judge Watson’s order affirming that ruling confirms this
interpretation of his remarks; as he said, “[t]he Court did not
intend anything it expressed at the preliminary injunction
hearing to limit discovery.”

(Doc. 150, at 2).

Given how broad

the standard is for discovery, and the potential relevance of
this information to Plaintiffs’ as-applied challenge, the Court
does not find Mr. Felsoci’s relevance argument to be persuasive.
That leaves the issue of privilege.

As the Court has

observed, Mr. Felsoci’s memorandum raises, but does not argue,
either the work product doctrine or the attorney-client
privilege, although both are claimed on the privilege log.

His

memorandum does refer briefly to Rule 1.6 of the Ohio Rules of
Professional Conduct, but that rule, which governs the conduct of
attorneys, has no application to a document request served on the
client.

Mr. Felsoci himself can choose to reveal “confidential

information,” assuming he possesses it, without running afoul of
that rule.

That leaves the privilege issues to be resolved.
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Plaintiffs argued both in their motion to compel Mr.
Felsoci’s deposition and their motion to compel production of
documents that the attorney-client privilege does not shield from
discovery information about who is financing Mr. Felsoci’s
protest and litigation activity.

In the reply filed in support

of the latter motion, they submitted a lengthy declaration from
Patrick E. Longan, a law professor at Mercer University,
explaining why the information is not privileged under either of
two scenarios: the persons paying for Mr. Felsoci’s activities
are not clients of Mr. Felsoci’s attorneys, or they are.

The

former situation presents no great conceptual difficulty, because
communications between an attorney and a non-client are not
covered by the attorney-client privilege.

The latter situation,

according to Professor Longan, also does not implicate the
privilege because simply revealing the name of that person (whom
Professor Longan refers to as the “Benefactor”) would not
typically reveal the substance of any attorney-client
communication, but only the identity of the client, unless
unusual circumstances exist which make information about the
client’s identity inseparable from the substance of a privileged
communication.
As the Court of Appeals for the Second Circuit observed in
Cotton v. United States, 306 F.2d 633, 636-37 (2d Cir. 1962),
“[i]t cannot be seriously argued that this policy [i.e. the
attorney-client privilege] justifies any member of the bar from
refusing to testify as to all transactions he may have had with
any person whom he chooses to designate a ‘client.’” Rather, “the
privilege extends essentially only to the substance of matters
communicated to an attorney in professional confidence.”
638.

Id. at

The name of the attorney’s client is generally not regarded

as a matter communicated in confidence; “ordinarily the identity
of a client does not come within the scope of the privilege.”
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United States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003).
That court recognized (consistent with Professor Longan’s
declaration) that there is a “narrow exception” to that rule, but
it applies only “when so much of an actual confidential
communication has been disclosed already that merely identifying
the client will effectively disclose that communication.”

Id.

There is no evidence in this record to support the application of
that exception, and Mr. Felsoci does not argue otherwise.

It is

useful to note that, when Mr. Felsoci was asked at the
preliminary injunction hearing about who was paying his
attorneys, no objection was made.

See Transcript of Proceedings

of March 13, 2014, Doc. 86, at 21 l. 2.

That is a strong

indication that neither Mr. Felsoci nor his counsel believe that
the answer to that question is privileged information.
That does not end the inquiry, however.

In the discovery

requests which are the subject of the motion to compel,
Plaintiffs have not asked, by way of a direct question such as an
interrogatory, who is paying Mr. Felsoci’s lawyers.

Rather, they

have asked for documents containing communications relating to
that issue.

Although the information itself may be discoverable,

communications about the information, if made between an attorney
and the client during the course of the representation and for
purposes of giving or receiving legal advice, may still be
privileged.

Thus, while it is true that “the attorney-client

privilege does not permit the client to husband facts just
because they are communicated to counsel,” see Eagle-Picher
Industries v. United States, 11 Ct. Cl. 452, 462 (1987), the
privilege still “protects the substance of attorney-client
communications ....”

Oasis International Waters, Inc. v. United

States, 110 Fed. Cl. 87, 99 (2013).

As one of the seminal cases

in this area points out, while the attorney-client privilege
cannot be used to “protect disclosure of the underlying facts by
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those who communicated with the attorney,” it does “protect[]
disclosure of communications” between the attorney and the
client.

Upjohn Co. v. United States, 449 U.S. 383, 395 (1981).

In Upjohn, the Supreme Court quoted with approval this language
from Philadelphia v. Westinghouse Electric Corp., 205 F.Supp.
830, 831 (E.D. Pa. 1962): “A fact is one thing and a
communication concerning that fact is an entirely different
thing.

The client cannot be compelled to answer the question,

‘What did you say or write to the attorney?’”

Similarly, when

the attorney’s communication to the client would necessarily
reveal the substance of the client’s communication to the
attorney, it, too, is privileged.

See Rehling v. City of

Chicago, 207 F.3d 1009, 1019 (7th Cir. 2000)(“statements made by
the lawyer to the client will be protected in circumstances where
those communications rest on confidential information obtained
from the client ... or where those communications would reveal
the substance of a confidential communication by the
client...”)(internal citations omitted).
Consequently, even though Mr. Felsoci may not be able to
claim that the fact of who is paying his attorneys is itself
privileged, to the extent that the two document requests at issue
call for the production of communications between Mr. Felsoci and
his attorneys, such communications would likely have been made
for the purpose of giving or receiving legal advice - perhaps
including legal advice on the subject of when it is ethically
appropriate to have someone else pay a client’s legal fees, when
that might present a conflict of interest, and what matters Mr.
Felsoci might legitimately want to consider before consenting to
the arrangement.
Even this conclusion, however, does not definitively resolve
the motion to compel.

The Court has reviewed the privilege log

and cannot find a single document which is described as a
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communication about who is paying Mr. Felsoci’s legal fees.

Most

appear to be routine communications about the litigation itself,
such as letters transmitting copies of court decisions, which
would typically not be responsive to a request about documents
dealing with the issue of who is paying the fees.

Perhaps the

first document transmitting the retention agreement would be
responsive, although it predates the preliminary injunction
hearing (as do the remainder of the first six documents listed),
and Mr. Felsoci testified under oath at the hearing that as of
that date, he did not know who was paying his attorneys.

Thus,

the Court infers that none of the documents listed on the
privilege log are actually responsive to the requests, which
might make the entire discussion about privilege simply advisory.
There is a category of documents missing from the log,
however, for which a claim of privilege might be more
problematic.

Are there documents containing communications

between Mr. Felsoci’s lawyers and the person or persons actually
paying the fees?

No such documents appear on the privilege log.

And while Mr. Felsoci may not possess any such documents, his
attorneys should have them (assuming they exist).

As Plaintiffs

note, documents that are in the possession of an attorney are not
necessarily outside the client’s control for purposes of
responding to a Rule 34 request.

“[F]ederal courts have

consistently held that documents are deemed to be within the
‘possession, custody or control’ for purposes of Rule 34 if the
party has actual possession, custody or control, or has the legal
right to obtain the documents on demand.”
Co., 61 F.3d 465, 469 (6th Cir. 1995).

In re Bankers Trust

This rule applies to

documents in the hands of attorneys so long as the client has the
right to ask for them and the attorney has a legal obligation to
provide them.

See, e.g., Chevron Corp. v. Donziger, 296 F.R.D.

168, 190 (S.D.N.Y. 2013)(“‘Documents in the possession of a
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party's attorney may be considered to be within the control of
the party,’” quoting 7 Moore's Federal Practice §34.14[2][c], at
34-80 (3d Ed. 2013)).
So at least these questions remain: (1) Do Mr. Felsoci’s
attorneys have documents reflecting communications with someone
other than Mr. Felsoci about the fee arrangements at issue?

(2)

If so, is the other party to that communication also a client of
Mr. Felsoci’s attorneys? (which may well be the case, since Mr.
Felsoci’s memorandum in opposition (Doc. 147, at 9) describes the
document requests as asking for communications “between Felsoci’s
trial counsel and their clients” - but Mr. Felsoci is not a
plural entity) (3) Should such documents have been listed on the
privilege log if, in fact, the other party to the communications
is a client of Mr. Felsoci’s attorneys? and, perhaps the most
difficult question, (4) If these documents exist, does Mr.
Felsoci have the legal right to demand them based upon the fact
that they relate to the matter on which the attorneys are
representing him and to the requirement that he give informed
consent to the fee arrangement in question?

There may also be a

question about whether, if Mr. Felsoci has the legal right to see
the documents, they nonetheless retain any privileged status they
might have, and a subsidiary question about whether
communications made solely for the purpose of making financial
arrangements for an attorney to represent someone else are
communications relating to the giving or receiving of legal
advice and are therefore privileged at all even if the sender and
recipient have an attorney-client relationship.
It is the Court’s preference not to confront such difficult
questions without adequate briefing and without knowing whether
there are any documents which actually exist and are responsive
to the documents requests at issue here.

Consequently, the Court

will direct the parties to confer on this issue and, if
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responsive documents do indeed exist which are possessed by Mr.
Felsoci’s attorneys and which might arguably be privileged, to
brief the remaining issues so that the Court can determine
whether it can and should compel Mr. Felsoci to produce them.
Given that time is still of the essence in this case, the parties
shall complete the meet-and-confer process by the close of
business on August 4, 2014, and, if the issues are not resolved
and require further briefing, shall file simultaneous briefs by
the close of business on August 6, 2014.

As part of the process,

counsel for Mr. Felsoci are directed to disclose whether they
possess documents which are responsive to either Document Request
1 or 2, but they need not disclose at this time the identity of
any other parties to the communications contained in those
documents.

This disclosure will insure that any briefing on the

question of whether Mr. Felsoci would have the right to demand
the documents - and thus whether they are in his “control” for
purposes of Rule 34 - as well as the other associated issues
raised in this order, will not be an act of futility.
III.

Conclusion and Order

For the foregoing reasons, the motion to compel concerning
Secretary of State Husted (Doc. 129) is denied.

Action on the

motion to compel concerning Defendant-Intervenor Gregory Felsoci
(Doc. 130) is deferred pending further proceedings in accordance
with this order.
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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