Libertarian Party of Ohio et al v. Husted

Filing 323

ORDER denying 302 Motion to Compel; granting 312 Motion for Leave to File substituted memorandum in opposition; denying 315 Motion to Strike. Signed by Magistrate Judge Terence P. Kemp on 9/4/2015. (agm)

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

:
ORDER

Based on the briefing on Plaintiffs’ motion to compel a
response to a subpoena duces tecum directed to non-party Matt
Borges (Doc. 302) and the related motion to strike (Doc. 315),
the Court issues this order.

While the parties have briefed

extensively the issue of the relevance of the subpoenaed
documents to Plaintiffs’ claims, the latest filing by Mr. Borges
(Doc. 314, which Plaintiffs seek to have stricken from the
record) indicates that any responsive documents which once
existed are no longer in existence, having been both deleted from
the Ohio Republican Party’s email server pursuant to a document
deletion protocol and then overwritten on any backup medium.
While Plaintiffs object to the Court’s consideration of the
affidavits attached to Doc. 314, the Court notes that advisory
opinions, especially on complex or important issues, are not only
disfavored, but may well lie outside the scope of the judicial
power.

If the Court were to order Mr. Borges to produce the

documents in question by finding that they are relevant to
Plaintiffs’ constitutional claims, but it turns out that the
documents do not exist, the order have no real-world effect on
the rights or obligations of the litigants.

It would undoubtedly have been better practice for Mr.
Borges to have investigated the existence of the requested
documents at the time he filed his initial response.

That may

well have saved him the cost of having his attorney make
arguments which are completely unnecessary if the documents
cannot be produced.

If this were an argument which could be

waived, it probably was, but it is hard to see how a reality the non-existence of responsive documents = can be waived in the
same way a legal argument can be.

If the documents don’t exist,

no amount of legal analysis of their relevance or the concept of
waiver can resurrect them.
Given the current state of the record, which does not
include any affirmative evidence from Plaintiffs that Mr. Borges’
copies of these documents still exist, nor any reason to question
the veracity of the affidavits stating they do not, the Court
denies the motions relating to the subpoena (Docs. 302 and 315)
and grants the motion to file a substituted memorandum in
opposition (Doc. 312), which Plaintiffs do not oppose.

Should

any facts come to light which would call into question Mr.
Borges’ assertions about these documents, the Plaintiffs are free
to renew their motion.
Any party may, within fourteen 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 fourteen days after objections
are filed and replies by the objecting party are due seven 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.
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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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