Libertarian Party of Ohio et al v. Husted

Filing 334

OPINION AND ORDER granting 329 Motion to Compel. Signed by Magistrate Judge Terence P. Kemp on 10/2/2015. (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

:
OPINION AND ORDER

On September 18, 2015 Plaintiffs filed a motion to compel
non-party Terry Casey to produce certain subpoenaed documents in particular, documents which were partially redacted.

Mr.

Casey responded to this motion and submitted unredacted versions
of the documents to the Court for in camera review on September
25, 2015.

Plaintiffs replied the same day.

For the reasons set

forth below, the motion to compel will be granted.
One of the categories of documents described in the
subpoena, which is attached as Exhibit One to the motion to
compel (Doc. 329), is this:
4. Any and all documents and communications
between Terry Casey, Intervenor-Defendant-Felsoci ...,
agents of the 2014 campaign of John Kasich for Governor
(including Matt Carle, Dave Luketic, and Steve
Polesovsky), and/or John Musca, relating to Felsoci’s
protest of Charlie Earl from January 1, 2014 to
present. (Emphasis supplied).
As prior orders of this Court reflect, Mr. Felsoci successfully
protested the inclusion of Libertarian Party Candidate Charlie
Earl on the Ohio gubernatorial ballot.

One of his theories is

that the Ohio Republican Party and/or Governor Kasich’s campaign

committee was involved in the filing of the protest.

The protest

was upheld by the Ohio Secretary of State on March 7, 2014.

The

first pleading or motion directed to that decision was filed the
same day.
The two documents in question are electronic communications
(apparently text messages or voicemails) involving Dave Luketic,
Jeff Polachesky (whom the Court assumes to be the same person as
“Steve Polesovsky,” the name appearing in the subpoena), and
Terry Casey.

The unredacted portions (Exhibit Two to Doc. 329)

consist, first, of a February 26, 2014 message from Dave Luketic
which says “Would it help our case if one of the circulators
signed a Democratic petitions (sic) this year?”

There were two

responses from Mr. Casey; his February 27, 2014 response, “Sorry
for my delay.

YES!

These are very important.

more by phone tonight?? Or, early Friday am?
produced.

Can we discuss

Thanks Terry” was

A May 2, 2014 comment, not directly responsive to the

question, was not.

The second string of communications, which

are between Jeff Polachesky and Mr. Casey, begin with Mr.
Polachesky’s March 4, 2014 question, “Anything new?
last texted...”
new.

Since you

Mr. Casey responded the same day with “Nothing

Just more grinding and Dems trying to play ‘hide the

ball’!!

Terry.”

Three days later, Mr. Polachesky asked, “Any

word on when we’ll know something?”

Mr. Casey’s response to that

question and Mr. Polachesky’s reply, both dated March 8, 2014
were redacted.

The final communication on that page is the same

May 2, 2014 statement from Mr. Casey which appeared in the string
of communications with Mr. Luketic.
In his responsive memorandum, Mr. Casey describes the
content of the redacted communications as “relating to the
subsequent litigation in this Court or the Ohio Supreme Court.”
Doc. 331, at 2.

The Court’s independent review of the redacted

statements confirms that description.
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Mr. Casey’s position is

that these communications do not “relate to [the] protest of
Charlie Earl” because that protest was over on March 7, 2014.
Mr. Casey notes that other document requests in the subpoena
refer to “Felsoci’s protest of Charlie Earl and Felsoci’s defense
of that protest in state and federal courts” (emphasis supplied),
indicating that Plaintiffs themselves drew a distinction between
the protest and the litigation.

Plaintiffs’ position is that

this litigation is “related to” the protest because the protest,
and the Secretary of State’s denial of it, are what led directly
to the filing of those motions and pleadings in this case which
sought to overturn that ruling.

They explain that the other

document requests dealt with billing statements and that it was
necessary to ask for the statements in that way.

Plaintiffs also

ask the Court to direct Mr. Casey to produce any other documents
he might have withheld that are responsive to Category 4 of the
subpoena if he withheld them on the basis that those documents
contained communications relating only to the litigation as
opposed to the “protest” as Mr. Casey has defined it.
I.
Several principles guide the Court’s decision.

First, words

are important.

Second, semantic game-playing in discovery is

inappropriate.

Third, counsel have an obligation to work

together in good faith to insure that issues of semantics which
are unrelated to the substance of a discovery issue - that is,
issues which have nothing to do with whether the documents in
dispute are either relevant or privileged - do not clog up the
discovery process itself or lead to unnecessary motions practice.
The Court starts with the first principle.
No one would expect a party responding to a discovery
request to produce, voluntarily, documents which the other party
did not ask for (although sometimes, in a spirit of cooperation something notable in this case only by its absence - that might
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happen).

On the other hand, counsel should refrain from

hypertechnical reading of discovery requests.

The question that

responding counsel must always ask is, “How would a reasonable
person interpret this request?”

As the court in Pilling v.

General Motors Corp., 45 F.R.D. 366, 369 (D. Utah
1968)(addressing the subject of how to interpret interrogatories)
stated, “[n]either questions nor their answers should be
interpreted with excessive rigidity or technicality, but a rule
of reason should be applied as to both.”

In fact, the court

described this concept as being so fundamental that it required
no citation to authority.

The same approach is reflected in this

language from Werbungs Und Commerz Union Austalt v. Collectors
Guild, Ltd., 728 F.Supp. 975, 982 (S.D.N.Y. 1989), aff’d in part
and rev’d in part 330 F.2d 1021 (2d Cir. 1991): “Although a party
is required to respond only to the requests and questions
actually propounded during discovery, they should not be read
hypertechnically; rather, a party should attempt to comply with
discovery demands in good faith.”

The Advisory Committee notes

to the 1993 revisions to Rule 37 are in accord, stating it this
way: “Interrogatories and requests for production should not be
read or interpreted in an artificially restrictive or
hypertechnical manner to avoid disclosure of information fairly
covered by the discovery request, and to do so is subject to
appropriate sanctions under subdivision (a).”
The phrase “relate to” is undoubtedly broad.

In fact, this

Court’s experience has been that a document request using this
language is often objected to as overly broad.

Some courts

agree; for example, in Lindell v. Synthes USA, 2013 WL 3146806
(E.D. Cal. June 18, 2013), the court held that a document request
seeking every document “related to expenses or wages” was
“overbroad and not stated with reasonable particularity.”

See

also Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 381
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(D. Kan. 2005)(”this Court has held on several occasions that a
document request may be vague, or overly broad and unduly
burdensome on its face if it uses an omnibus term such as
‘relating to,’ ‘pertaining to,’ or ‘concerning’”).

It is unusual

for a responding party to read that phrase as a limitation on a
document request which, on its face, describes a time frame which
extends well beyond the date on which the administrative
proceedings on the protest concluded.

That is simply not the

objectively reasonable, good faith interpretation that the Rules
call for.

The most that can be said for Mr. Casey’s argument is

that it might be reasonable to view the request, in its entirety,
and when read in conjunction with the requests which followed, as
somewhat ambiguous.

But it was not reasonable for him to work

hard to find an ambiguity in the words used and then to interpret
them strictly in his favor, rejecting any effort to broaden his
reading even when he was asked to do so.
That leads directly into the second principle.

As this

Court previously has held, when a response to a discovery request
is “either disingenuously hypertechnical or purposefully obtuse,”
that can be sanctionable conduct.

PepsiCo, Inc. v. Central Inv.

Corp., Inc., 2002 WL 32122596, *6 (S.D. Ohio Feb. 4, 2002)
(Beckwith, J.).

Rule 26(g) requires a certification that a

discovery response is “consistent with these rules” (and, the
Court would add, case law interpreting them) and not “interposed
... to ... cause unnecessary delay, or needlessly increase the
cost of the litigation.”

Treating this particular discovery

request as a narrow inquiry for only pre-March 7, 2014
communications is not consistent with the Rules and seems
particularly designed to cause delay and increase costs.

It

strikes the Court as particularly disingenuous when a reasonable
person in Mr. Casey’s position would clearly have known that, in
light of all of the litigation activity which preceded the
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request, it was extremely unlikely that Plaintiffs wanted only
communications which made some direct reference to the
administrative protest process and not ones which concerned how
that process was playing out in the courts.

None of their other

discovery efforts about the relationship between the protest,
Governor Kasich’s campaign, and the Ohio Republican Party appear
to have been similarly limited, and there is no reason to think
that this one was.
Finally, addressing the third principle, it is helpful to
explore what a good faith effort to resolve this particular issue
short of motions practice might have looked like.

Once it became

apparent how Mr. Casey was construing the request, and that he
was withholding information based on that construction,
reasonable attorneys comporting themselves in the spirit required
by the Rules would have had a conversation in which Plaintiffs’
counsel would have said something like, “I guess I understand
your point, but of course that is not what I meant, and you
probably know that.

If you care to stand on your objection, I

could always serve yet another subpoena, but why go to that
trouble when I’ve now told you clearly what I meant to ask for,
and you appear to have no substantive objection to giving it to
me?”

A reasonable response to such a question would have been,

“You could have been more precise, but there’s no point
litigating such a minor issue.

We can agree to disagree on the

exact interpretation of the request, but in good faith I’m
producing the withheld information.”

The Court sees no evidence

that anything remotely resembling this type of dialogue occurred.
In fact, the filing of a motion, response, and reply which total,
cumulatively, seventeen pages of briefing, strongly suggests that
it did not.

Unfortunately, the Court has now had to add another

order to the stack of paper (or electronic documents) spawned by
this matter.

“Unnecessary” is the best way to describe all of
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it.
II.
For the reasons set forth above, non-party Terry Casey
shall, within seven days of the date of this order, produce all
documents in his possession, custody, or control which are
responsive to category four of the subpoena as construed by this
order.

The Court again reserves ruling on whether sanctions

should be awarded in connection with this motion, but strongly
emphasizes that (although discovery should now be nearing its
close) that any future violations of the principles set forth in
this order will almost certainly lead to sanctions.
III.
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.
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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