Libertarian Party of Ohio et al v. Husted

Filing 364

OPINION AND ORDER - All issues relating to any discovery motion addressed in this case, including but not limited to Docs. 299 , 300 , 316 , and 326 , are resolved. Motions for reconsideration due with in seven (7) days. Signed by Magistrate Judge Terence P. Kemp on 2/5/2016. (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

This case, the background of which appears in many other
orders of the Court and which will not be repeated here, is
before the Court to resolve a number of pending discovery-related
motions.

The substantive issues raised in those motions are all

moot; discovery is complete.

This order addresses the issue of

whether any discovery sanctions should be imposed.
I.

Unresolved Requests for Sanctions

Plaintiffs requested sanctions under Rule 37(a)(5) in their
motion to compel Gregory Felsoci, the intervenor defendant, to
produce documents (Doc. 299); in a separate motion for sanctions
which addresses that and other aspects of discovery (Doc. 300);
in their second motion to compel Mr. Felsoci’s deposition (Doc.
316); and in their renewed motion to compel production of
documents from non-party Matt Borges (Doc. 326).

Each motion

raises the question of whether the party opposing discovery primarily Mr. Felsoci - did so in a way which was substantially
justified.
A.

The Rule 26(e) Issue

The most comprehensive motion is Doc. 300.

It summarizes

various difficulties with discovery, all of which are addressed

on their merits in prior court orders, and concludes that Mr.
Felsoci’s participation in this case was “political espionage”
designed to thwart legitimate discovery and that his tactics were
“of the ‘scorched earth’ variety.”

Id. at 2-3.

Plaintiffs

detail how difficult it was for them to uncover the fact that
Terry Casey, a Republican Party operative, was paying Mr.
Felsoci’s legal fees in this case, and that money to do so was
supplied directly by the Ohio Republican Party; how hard it was
to compel Mr. Felsoci to sit for a deposition; how Mr. Felsoci’s
lawyers refused to supplement discovery responses to show that
Mr. Casey or the Ohio Republican Party had made additional
payments toward Mr. Felsoci’s legal fees; and how Mr. Felsoci’s
lawyers did not fulfill their professional obligations to Mr.
Felsoci when they did not inform him of their joint
representation of himself and Mr. Casey and the agreement Mr.
Casey made to pay Mr. Felsoci’s legal fees - a failure which
allowed Mr. Felsoci to deny any knowledge of who was paying his
legal fees.

The motion concludes by arguing that there was never

any justification for Mr. Felsoci’s failure voluntarily to
produce documents showing that the Ohio Republican Party had made
additional payments in 2015 toward Mr. Felsoci’s legal fees those documents are the subject of the motion to compel which is
Doc. 299 - and it asks for sanctions including a default judgment
against Mr. Felsoci on Count Seven of the complaint.
In his opposing memorandum (which also opposes the request
for sanctions made in Doc. 299), Mr. Felsoci points out that he
did supply Plaintiffs with the supplemental documentation about
payments of legal fees which are the subject of Doc. 299, and did
so promptly after receiving a supplemental document request,
something the Court suggested to Plaintiffs’ counsel during a
telephone conference held with respect to that motion.

He argues

that he had no obligation to do so prior to that, even though the
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invoices were requested by Plaintiffs earlier in the case,
because when that request was made, these particular invoices did
not exist.

He contends that there is a split of authority about

whether later-created documents must be produced in response to a
document request when the earlier production was complete when
made.

The 20-page reply memorandum (Doc. 306), which reads like

a treatise on the duty to supplement found in Rule 26(e),
disputes that such a split of authority exists and contends that
Mr. Felsoci’s argument about the materiality of the documents is
so clearly incorrect that sanctions are appropriate.
As Mr. Felsoci portrays it, the cases are split on the
question of whether a party must supplement a prior document
production with documents which are responsive to the request but
which did not exist at the time the original production was made.
He relies on, among other cases, Judge Litkovitz’ decision in
Rhein v. Smyth Automotive, Inc., 2012 WL 3150953 (S.D. Ohio Aug.
2, 2012), as supporting that thesis.

There, one of the document

requests asked for sales reports from January 1, 2005 to the
present.

Defendants produced all such reports through the date

of their initial response but did not supplement that production
as additional reports were created.

The Court ordered only a

portion of these new reports to be produced, reasoning that given
“the strong policy favoring liberal discovery” and given that
defendants themselves were relying on such reports which postdated the original document production, the plaintiff was
entitled to the supplemental documents to the extent they were
relevant.

The Court also held, however, that an open-ended

document request could not force a responding party to produce
wholly irrelevant documents, even if they were responsive,
because such documents could not render an earlier response
incomplete or incorrect when made, which is the trigger for the
duty to supplement as set out in Rule 26(e).
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Mr. Felsoci also

cites to a case relied on in Rhein, MSC Software Corp. v. Altair
Engineering, Inc., 2012 WL 1340445, *2 (E.D. Mich. Apr. 18,
2012), which stated, although not in its direct holding, that
“Rule 26(e) does not place a continuing burden on a party
responding to a discovery request to supplement with new
information.”

Also, there is a statement in a less recent case,

Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP,
2006 WL 1295409, *2 (S.D.N.Y. May 10, 2006), that
“[s]urprisingly, with the exception of an unpublished and
uncitable decision of the United States Court of Appeals for the
Sixth Circuit, I have been unable to find any precedents
addressing whether documents created after the service of a Rule
34 response need be produced in response thereto.”

That court

concluded that “[s]ubsequently created documents do not render a
previously served document response incomplete as of the date of
the response” and that even if they did, the rules did not
specify how frequently responses to document requests had to be
updated.
Plaintiffs certainly have the stronger argument that these
cases, read closely, do not necessarily suggest a different rule
about the duty to supplement with after-created documents;
rather, they allow room for parties to debate whether responsive
but irrelevant documents must be disclosed in a supplemental
production, or whether open-ended requests for documents may
ultimately create an undue burden on the producing party which
would excuse production.
arguable.

But this illustrates that the point is

Certainly, the Kingsway decision provides a fair

amount of support for Mr. Felsoci’s position.

Were the Court

called upon simply to decide the question of whether Mr. Felsoci
had a duty to supplement where, as here, the after-created
documents were few in number and directly relevant to Plaintiffs’
claims, it would probably side with Plaintiffs.
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Plaintiffs have

the documents now, however, and the substantive issue is moot.
Can the Court also say that Mr. Felsoci’s position lacked
substantial justification in a way that merits sanctions?

That

is a close call, but there is just enough justification for his
argument that it falls on the non-sanctionable side.

Perhaps

with more development of the case law, his position will become
untenable and sanctionable, but the Court cannot make that
determination here, even though Mr. Felsoci would have been
better-advised to produce the documents either voluntarily or in
response to Plaintiffs’ express request to supplement his earlier
production.

However, that spirit of cooperation has been absent

in this case from the outset.
B.

The Second Felsoci Deposition

The second motion to compel a deposition of Mr. Felsoci also
contains a request for sanctions.

By way of brief background,

Mr. Felsoci was deposed once in this case, pursuant to a court
order issued after he objected to being deposed at all, so when
Plaintiffs requested a second deposition, leave of court was
required under Fed.R.Civ.P. 30(a).

The basis for the request was

the production of documents showing that the Ohio Republican
Party was paying Mr. Felsoci’s legal bills.

Plaintiffs assert in

their motion that Mr. Felsoci had no reasonable basis for
refusing their request.

They rely on this Court’s decision in

Fresenius Medical Care Holdings, Inc. v. Roxane laboratories,
Inc., 2007 WL 764302 (S.D. Ohio March 9, 2007) for the
proposition that if important documents surface after the first
deposition of a witness has been taken, a second deposition is
routinely permitted.

After a conference with the Court, Mr.

Felsoci agreed to submit to a brief second deposition, but the
parties were apparently unable to come to agreement as to the
parameters of that deposition.

The Court subsequently issued a

brief order directing that the deposition go forward (Doc. 322).
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It reserved ruling on the balance of the issues raised by the
motion.
In a lengthy opposing memorandum (Doc. 320), Mr. Felsoci
offers a number of reasons why Plaintiffs’ request for a second
deposition should have been denied.

He focuses on, among other

factors, the untimeliness of the request, and on the fact that
the newly-produced documents came not from Mr. Felsoci but from
Terry Casey.

Mr. Felsoci also points out that it was not very

likely that he would have much to contribute on the issue since
he was, for a long time, unaware of who was paying his lawyers,
and he had no direct knowledge of any arrangements between Terry
Casey and the Ohio Republican Party to pay his fees.

The Court,

as noted, rejected these rationales and ordered the deposition to
go forward.

Having considered them, however, in the context of

Plaintiffs’ request for sanctions, and keeping in mind that a
second deposition of the same witness is presumptively improper,
the Court finds no basis upon which to order sanctions.
Conceptually, there is some difficulty with the notion that
a party can be sanctioned for simply insisting that the opposing
party comply with a rule of civil procedure.

Rule 30(a)(2) sets

forth four different situations where leave of court to take a
deposition must be sought if the parties do not stipulate to the
deposition.

They include taking a deposition earlier than

allowed by Rule 26(d), taking a deposition when ten witnesses
have already been deposed by that party, taking the deposition of
a person in prison, and taking a second deposition of the same
witness.

At least one court has held that sanctions cannot be

imposed under this rule against a party who refuses to stipulate
to a deposition and forces the requesting party to seek leave of
court.

See Ashby v. McKenna, 331 F.3d 1148, 1150 (10th Cir.

2003)(holding that the prisoner plaintiff “was within his rights
under Rule 30(a) in refusing to be deposed without court order.
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His refusal cannot serve as a basis for sanction”).

This Court

need not go that far in its ruling, however, given that it was
and is debatable how much Mr. Felsoci would have to add to the
body of knowledge concerning the Ohio Republican Party’s
agreement to pay his legal fees, especially once that fact was
learned from other sources and Plaintiffs obtained copies of the
documents showing the payments.

Whether Mr. Felsoci knew about

that arrangement from the outset was the subject of his prior
testimony and deposition (he said he did not), and nothing in the
documents refutes that assertion.

Given the lack of a strong

showing that this deposition was crucial to Plaintiffs’ claims,
although the Court concluded, on balance, that a brief second
deposition was warranted, Mr. Felsoci’s refusal to consent to the
deposition when asked, thus forcing Plaintiffs to file the motion
to compel, was not without some justification.
C.

The Matt Borges Subpoena

The final request for sanctions comes in Plaintiffs’ motion
to compel a non-party, Matt Borges, to produce documents.

In

their motion (Doc. 326), Plaintiffs argued that Mr. Borges’
assertion that he had no documents responsive to a subpoena
issued by Plaintiffs was demonstrably false.

The documents which

had been requested were documents evidencing payments from the
Ohio Republican Party to the firm of Zeiger, Tigges & Little, who
represent Mr. Felsoci and Mr. Casey in connection with this
litigation.

Plaintiffs obtained evidence, after Mr. Borges said

he had no such documents and that any such documents dated before
March 3, 2015 had been lost or destroyed, that a payment was made
on March 28, 2015 (although that payment had nothing to do with
this case).

Mr. Borges responded that he did not construe the

subpoena to cover unrelated payments to the Zeiger firm.
supplied the documents as part of his response.

He

In reply,

Plaintiffs argued that the request was broad enough to cover all
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payments made by the Ohio Republican Party to the Zeiger firm,
and that payments even in unrelated matters were relevant to the
issues in this case.
The production of the requested documents mooted the
underlying issue.

As to the request for sanctions, it appears to

the Court that the failure to produce the documents in question
was initially caused by a good faith disagreement, or
misunderstanding, as to the scope of the subpoena.

The need for

the motion to have been filed was related, in part, to the time
pressures of this litigation as opposed to the failure of Mr.
Borges’ counsel to respond in good faith to Plaintiffs’ request
for the documents once the additional payment came to light.
This is not a situation which warrants sanctions.
D.

Additional Matters

The Court did reserve a ruling on whether sanctions were
appropriate in connection with its order granting a motion to
compel Terry Casey to produce documents in response to a
subpoena.

That order (Doc. 334) pointed out a striking lack of

cooperation, transparency, and good faith efforts to resolve
discovery disputes which had permeated this litigation from the
outset, and it warned the parties that further conduct of that
nature would undoubtedly lead to sanctions.

The record does not

reflect any further discovery disputes - probably because
discovery was substantially complete by that time - and the Court
sees little benefit in revisiting the issue of sanctions at this
stage of the case.
The Court does add this cautionary note.

The overall

conduct of discovery in this case, especially on the part of Mr.
Felsoci’s and Mr. Casey’s counsel, demonstrates a pattern of
technical and begrudging responses and objections to discovery
requests, which pattern was clearly designed to delay or obstruct
the Plaintiffs’ ability to learn that the Ohio Republican Party
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was involved in the effort to keep Libertarian Party candidates
off the ballot.

It would be difficult indeed to characterize

what went on here as the construction, administration, or
employment of the Rules of Civil Procedure by the parties “to
secure the just, speedy, and inexpensive determination of every
action and proceeding.”

See Fed.R.Civ.P. 1.

However, the

addition of the term “parties” to Rule 1 is of recent vintage
(December 1, 2015).

Nevertheless, discovery in this case did not

proceed consistently with the spirit of the prior version of Rule
1 even if each of the positions taken by counsel found just
enough support in the language of the rules or the case law to
prevent the imposition of sanctions.

Looking at the entire “body

of work” in hindsight, it would probably have benefitted the
parties and the interests of justice to have been less lenient
with the parties (or non-parties, for that matter) at an early
stage of the case simply in order to prevent the case from
devolving into a series of bitter skirmishes about matters that,
in the great majority of cases litigated in this Court, do not
require the type of extensive and expensive motions practice
which continually characterized this case.

Should these

particular attorneys or parties come before the Court in future
cases, the history of their conduct here will strongly influence
the Court’s approach to discovery, including sanctions, in order
to insure that the goals of Rule 1 are met.
II.

Order

Based upon the foregoing, all issues relating to any
discovery motion addressed in this case, including but not
limited to Docs. 299, 300, 316, and 326, are resolved.
III.

Motion to Reconsider

In light of the age of this case, the Court notifies the
parties that it is reducing the amount of time for filing a
motion to reconsider with the District Judge.
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Any party may, within seven 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 seven 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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