Libertarian Party of Ohio et al v. Husted

Filing 274

ORDER granting 173 Plaintiffs' Motion to Quash to the extent that, pending a resolution of the issue of whether sanctions should be imposed under Rule 37, counsel need not respond to the subpoena. Signed by Magistrate Judge Terence P Kemp on 12/8/14. (sem1)

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

On July 11, 2014, the Court granted Plaintiffs’ motion to
compel intervenor Defendant Gregory Felsoci to submit to a
deposition.

Libertarian Party of Ohio v. Husted, 2014 WL 3456835

(S.D. Ohio July 11, 2014).

In doing so, it overruled his

objections that the deposition was unnecessary or inappropriate
because the deposition would simply replicate his testimony at
the preliminary injunction hearing (and that to subject him to
such a duplicative proceeding would be unnecessarily burdensome
or harassing); that the parties had previously agreed to forego
his deposition; and that he had no relevant testimony to offer,
particularly in light of a pending motion to amend the complaint.
In a second order filed on July 31, 2014, the Court granted
Plaintiffs’ motion to compel the production of documents from Mr.
Felsoci.

The Court rejected Mr. Felsoci’s claim that the

documents at issue - documents showing who had retained and was
paying his counsel - were not discoverable because they were not
relevant to the Plaintiffs’ claims, but it asked for further
briefing on the issue of whether any such documents might
properly have been withheld on grounds of privilege.

Libertarian

Party of Ohio v. Husted, 2014 WL 3792727 (S.D. Ohio July 31,

2014).

The Court subsequently determined that documents

responsive to Plaintiffs’ request were not privileged and that
Mr. Felsoci had sufficient control over them to require their
production.

Libertarian Party of Ohio v. Husted, 2014 WL 3928293

(S.D. Ohio Aug. 12, 2014).
After being granted the relief they sought, and after
deposing Mr. Felsoci and obtaining the documents at issue,
Plaintiffs moved for sanctions under Fed.R.Civ.P. 37(a).

They

seek an order reimbursing them for attorneys’ fees in the amount
of $30,112.50.

(Doc. 166).

Two days after the motion was filed, Mr. Felsoci, through
counsel, served subpoenas duces tecum on Plaintiffs’ attorneys,
Mark Brown and Mark Kafantaris. (Doc. 171).

Those subpoenas

asked that nine different categories of documents be produced
within seven days.

The list of documents includes all time and

billing records for counsel’s time related to the two discovery
motions, as well as “contemporaneous timekeeping and billing
records made at or about the time of work performed relative to
the Felsoci Discovery Motions” (presumably related to work done
for other clients) and “[a]ll documents showing the hourly
rates(s) (sic) you have charged other clients in 2014.”

Mr.

Felsoci also asked for all of the financial records relating to
each attorney’s law practice, including documents showing
expenses paid for rent, utilities, support services, and
professional liability costs.
Plaintiffs immediately moved to quash.

(Doc. 173).

They

argue in that motion that the subpoenas are improper because
discovery cannot ordinarily be taken from an opponent’s
litigation attorneys, because the time for compliance was
“patently unreasonable,” and that many of the documents requested
are not pertinent to the calculation of attorneys’ fees under
Rule 37.

They point out that they voluntarily supplied the types
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of documents which are usually relied on in support of such
requests, and that to comply fully with the subpoena would
require the production of privileged information.

They also

sought expenses in connection with the filing of the motion to
quash.

That motion has been fully briefed, with Mr. Felsoci

arguing that, for the most part, the documents he asked for are
appropriately related to the attorneys’ fees request (although he
appears to be willing to back off the request for office
expenses), and with Plaintiffs arguing that the request is still
overbroad, that the time for compliance (which Mr. Felsoci
apparently was willing to extend by agreement) was unreasonable
on its face, and that a subpoena to counsel, as opposed to
discovery directed to Plaintiffs, is not the proper way to get
information to defend against an attorneys’ fees request.
Finally, because, according to Mr. Felsoci, he cannot adequately
address the motion for fees without the discovery he has sought
by way of the subpoenas to Messrs. Brown and Kafantaris, he asked
for an extension of time to respond to the attorneys’ fees
motion, and the Court granted him an extension until 21 days
after a ruling issues on the motion to quash.

(Doc. 175).

The Court first notes that sufficient time has passed to
alleviate any issues which the time for compliance set forth in
the subpoena may have caused (although the time for compliance
appears presumptively unreasonable).

The Court also agrees that

the request for expenses seems either not reasonably calculated
to lead to the discovery of relevant evidence or far too
burdensome to support whatever incidental relevance such evidence
might have.

The Court is sympathetic, however, to the concept

that an attorney asking for fees must, at some point and in some
fashion - perhaps in response to a properly-made Rule 34 request
- produce the original time records being relied on, and not just
summaries.

Cf. Fed.R.Evid. 1006.
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Rather than get into the

thicket posed by the other requests, however, the Court believes
that it would be more efficient to have the briefing on the
motion for fees focus on entitlement first, and then, if
necessary, on the amount of the fees.

The Court will therefore

structure an order that achieves that result.
A further note is in order.

It has not been this Court’s

experience that reasonable lawyers disagree substantially about
either how much an attorney of a certain level of experience
might reasonably charge for services, or how many hours are
reasonably expended on tasks that are common to litigation such
as researching and writing discovery motions.

What disagreements

may exist are usually resolved quickly and on the basis of a
common store of experience and information, rather than through
protracted discovery and satellite litigation.

If the Court

decides that an award of fees is justified under Rule 37, it may
be that the amount can be determined either by agreement or by a
proceeding that actually implements Fed.R.Civ.P. 1 (which says
that the Federal Rules of Civil Procedure “should be construed
and administered to secure the just, speedy, and inexpensive
determination of every action and proceeding”).
Based on the foregoing, the motion to quash is granted to
the extent that, pending a resolution of the issue of whether
sanctions should be imposed under Rule 37, counsel need not
respond to the subpoena.

Mr. Felsoci shall file a response to

the motion for attorneys’ fees by January 5, 2015, limiting his
response to the issue of whether fees are properly awarded.

If

the Court decides that issue in Plaintiffs’ favor, it will then
convene a conference to discuss proceedings on the amount of any
fee award to be made.
Motion for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
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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 fourteen days after objections
are 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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