Libertarian Party of Ohio et al v. Husted

Filing 399

OPINION AND ORDER granting in part and denying in part 380 Plaintiffs' Renewed Motion for Attorney Fees. Counsel for intervening defendant Gregory Felsoci shall pay fees, awarded under Fed. R. Civ. P. 45, in the amount of $1500.00 within 21 days of the date of this order. Signed by Magistrate Judge Terence P. Kemp on 6/12/2017. (er)

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
I.

Introduction

This case, which began as a straightforward challenge to an
Ohio election-law statute which prohibited out-of-state residents
from circulating nominating petitions, took on a different
character when the nominating petitions of certain Libertarian
Party candidates were invalidated by the Ohio Secretary of State
based on a protest filed by Gregory Felsoci, a member of that
party.

From the outset, Plaintiffs suspected - rightly, as it

turned out - that there was some connection between Mr. Felsoci’s
protest and persons who were interested in the success of
Republican Party candidates (particularly Governor John Kasich)
in the 2014 general election.
From almost the time that Mr. Felsoci intervened in this
case, Plaintiffs attempted to find out whether he acted alone or
if he had help, including assistance paying his attorneys.

For

reasons more fully detailed in prior orders of this Court, that
turned out to be a difficult process.

This Court infers, from

its involvement in the case and from the way that discovery was
conducted, that the person who had agreed to pay Mr. Felsoci’s
attorneys’ fees - Terry Casey, a former Ohio elections official

and a Republican Party consultant - instructed his attorneys (who
were also Mr. Felsoci’s attorneys) to resist and delay
Plaintiff’s efforts to find out that Mr. Casey had agreed to
underwrite Mr. Felsoci’s efforts to disqualify the Libertarian
Party candidates.

This Court became involved in the process

because the attorneys for Plaintiffs and Mr. Felsoci could not
reach an extrajudicial agreement on something as routine (at
least, normally routine) as whether Mr. Felsoci could be deposed.
Other aspects of discovery were difficult as well, including
Plaintiffs’ attempts to obtain documentary evidence about who was
paying Mr. Felsoci’s legal bills.
Plaintiffs asked for sanctions in connection with motions
directed toward those two issues.

The Court tabled that request,

in part as an incentive for counsel to work more cooperatively
together - which turned out to be mostly wishful thinking on the
Court’s part.

There seems to be little dispute that the

relationship between Plaintiffs’ counsel and Mr. Felsoci’s
counsel became toxic, and that toxicity surfaced during
depositions (some of the more unpleasant exchanges are recounted
in Plaintiffs’ memoranda) and often during informal discovery
conferences with the Court.

Without, at least at this point in

the discussion, assigning blame for the unhealthy and at times
unprofessional nature of counsel’s relationship, it is fair to
say that neither side seemed intent on accomplishing the goal set
out in Fed.R.Civ.P. 1, which is to secure the “just, speedy, and
inexpensive” resolution of the case.

Quite the opposite.

The case has now been resolved on its merits.

Plaintiffs,

however, still wish to be awarded sanctions in the form of
attorneys’ fees and costs for (1) moving to compel Mr. Felsoci to
sit for a deposition, (2) moving to compel him to produce a
document or documents showing who was paying his legal fees, and
(3) moving to quash two subpoenas served on Plaintiffs’ counsel.
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For the following reasons, the Court concludes that sanctions are
not warranted as to the first two matters, but that a modest
award of attorneys’ fees is appropriate on the third.

At the

same time, the Court emphasizes that it does not condone the type
of “scorched earth” resistance put up by Mr. Felsoci’s counsel on
basic issues in the case and finds it inconsistent with the
spirit, if not the letter, of both the Federal Rules of Civil
Procedure and the cultural norms of the bar of this Court.
Parties can, and often should, be adversarial (although
civil) with respect to the merits of a case.

There is much less

justification for their being unduly oppositional and blatantly
disrespectful during discovery, especially when the underlying
motive for some of that conduct is, as was apparently the case
here, not so much a firmly-held belief that the discovery in
question is objectionable, but an effort not to disclose
information which could ultimately prove embarrassing to someone
not even a party to the litigation at issue.

What occurred in

this case is a good example of why there are ethical rules
governing one person’s agreement to pay another person’s
attorneys’ fees, and how such an arrangement can place the latter
person at risk of incurring sanctions when it is the first
person’s potentially-conflicting interests which are being
advanced.

Because Plaintiffs’ current motion for fees does not

call for this Court to address the issue of the ethical propriety
of counsel’s conduct, but only to evaluate it under Rules 37 and
45 of the Federal Rules of Civil Procedure, the Court leaves any
issues of ethics for another day and another tribunal.

It now

proceeds to discuss the issue of whether sanctions should be
awarded under Rule 37 with respect to any of the three matters at
issue.
II.

Sanctions for the Motions to Compel

The Court begins this discussion by identifying the
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applicable legal standard.

Fed.R.Civ.P. 37(a)(5) says that if a

motion to compel is granted,
the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including
attorney's fees. But the court must not order this
payment if:
(i) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery
without court action;
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses
unjust.
Whether to grant any sanctions with respect to the two motions to
compel depends upon the strength of Mr. Felsoci’s argument that
his counsel’s actions in resisting Plaintiffs’ discovery were
“substantially justified.”

Obviously, that legal standard, while

encompassing some objective elements, also leaves room for
subjective judgments.

What is “substantial justification” to one

court may not be so to another.

And the culture of the court and

the bar may play into that concept as well.

Conduct that would

be sanctionable because it falls outside the norm in one area may
be tolerated in another.

This Court will strive to make its

inquiry as objective as possible, but, at the same time, it
recognizes that its decision may be shaped by less quantifiable
factors, including this particular judicial officer’s experience
in both litigating and resolving discovery disputes in the
Southern District of Ohio.
The Court of Appeals has set forth a test for determining
whether a party’s position in a discovery dispute is
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substantially justified. In Doe v. Lexington-Fayette Urban County
Government, 407 F.3d 755, 765 (6th Cir. 2005), that court said
that
A motion is “substantially justified” if it raises an
issue about which “there is a genuine dispute, or if
reasonable people could differ as to the
appropriateness of the contested action.” Pierce v.
Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101
L.Ed.2d 490 (1988) (citations and quotation marks
omitted). As noted by the Supreme Court, “the one
[connotation] most naturally conveyed by the phrase
before us here [“substantially justified”] is not
‘justified to a high degree,’ but rather ‘justified in
substance or in the main’—that is, justified to a
degree that could satisfy a reasonable person.” Id.
Pierce v. Underwood did not involve discovery sanctions.

Rather,

the Pierce court was interpreting the Equal Access to Justice
Act, 28 U.S.C. §2412, which authorizes an award of attorneys’
fees to a prevailing party in litigation with the United States
unless the United States’ litigation position is “substantially
justified.”

This Court has cited Doe when analyzing the issue of

discovery sanctions, see, e.g., Clifford v. Church Mut. Ins. Co.,
2014 WL 5383929, *11 (S.D. Ohio Oct.21, 2014)(King, M.J.); Despot
v. Nationwide Ins., 2013 WL 4678857, *4 (S.D. Ohio Aug. 20,
2013)(Litkovitz, M.J.), and both parties also cite to Doe as
authority, so it will form the primary basis for the Court’s
legal discussion.

However, the Court also finds helpful (and

consistent with Doe) this formulation from Athridge v. Aetna Cas.
and Sur. Co., 184 F.R.D. 200, 205 (D.D.C. 1998): “If there is an
absence of controlling authority, and the issue presented is one
not free from doubt and could engender a responsible difference
of opinion among conscientious, diligent but reasonable
advocates, then the opposing positions taken by them are
substantially justified.”

Using these standards, the Court will

analyze separately the two motions to compel for which the
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Plaintiffs seek sanctions.
A.

Mr. Felsoci’s Deposition

The background of this first dispute is set forth in the
Court’s Opinion and Order in Libertarian Party v. Husted, 302
F.R.D. 472 (S.D. Ohio 2014).

A brief but accurate summary of

that Opinion and Order is that, after examining three separate
reasons advanced by Mr. Felsoci why he should not be deposed even
once in the case notwithstanding the fact that he had voluntarily
made himself a party, the Court rejected his arguments and
granted the motion to compel.

Mr. Felsoci argues that each of

the three reasons he gave could have persuaded a reasonable
person to see things his way, and he has submitted an affidavit
from Quentin Lindsmith, a well-respected Columbus attorney and
member of the bar of this Court (and also a former member of the
law firm representing Mr. Felsoci) supporting that claim.
Plaintiffs, of course, argue the opposite, and they take
issue with the standard Mr. Lindsmith uses in his affidavit,
which equates “substantially justified” with “colorable and
plausible.”

The Court has considered Mr. Lindsmith’s affidavit,

but since it does not relate to matters outside the Court’s area
of expertise - which, here, are the proper interpretation of Rule
37 and its application to a specific set of facts - the Court
gives it little, if any, weight.

See United States v. Gallion,

257 F.R.D. 141, 146-47 (E.D. Ky. 2009)(explaining that “expert
testimony on issues of law is typically excluded”), citing
Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654,
657(1935).
The Court first notes that this case is unlike many others
where sanctions have been imposed for a party’s failure to attend
a deposition.

Most such cases involve either a party who may

have had legitimate objections to appearing but who did not move
for a protective order in advance - a procedural miscue that
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often leads to unnecessary costs being incurred - or a party who
advances reasons not to attend which have been uniformly rejected
in the case law, such as refusing to be deposed unless the
opposing party is also in full compliance with its discovery
obligations.

In those and similar situations, the issue which

the moving party was forced to litigate can fairly be described
as “free from doubt.”

See, e.g., Rangel v. Gonzalez Mascorro,

274 F.R.D. 585 (S.D. Tex. 2011)(awarding sanctions because there
was no legal authority supporting cancellation of depositions
under particular circumstances of that case); John Wiley & Sons,
Inc. v. Book Dog Books, LLC, 298 F.R.D. 145, 148 (S.D.N.Y.
2014)(noting that “it is well-established that a party cannot
unilaterally refuse to fulfill its discovery obligations as
retaliation for another party's discovery violations”).
Here, in contrast, there was no procedural violation,
because the parties agreed to litigate, in advance of the
scheduled date, the question of whether Mr. Felsoci could be
deposed.

No one incurred an otherwise avoidable expense by

showing up and having no one to question.

And although the Court

pointed out in its decision that the usual rule is that parties
to a case can be deposed at least once, and that the party who is
trying to escape that obligation has a heavy burden of
persuasion, that does not mean that a party can never be
substantially justified in arguing that his or her deposition
ought not to go forward.
As noted, Mr. Felsoci made three separate arguments about
why he should not be deposed.

Any of them would have been

sufficient to defeat the motion to compel had the Court accepted
them.

That means that only one of these arguments had to be

reasonable.

While the Court had, and continues to have,

substantial doubt that the argument about Mr. Felsoci’s having no
relevant information to provide had a reasonable basis in either
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fact or law, he did make a more supportable argument that the
parties had reached an agreement about his not having to testify
if he answered certain interrogatories.

In fact, the Court

indicated that his interpretation of the correspondence exchanged
on that issue was “possible” although it was not the most
plausible reading of the parties’ words.

See 302 F.R.D. at 478.

And although the Court also rejected the claim that his
deposition would be merely cumulative to his testimony at the
preliminary injunction hearing, the fact that discovery would be
unnecessarily cumulative or duplicative is an appropriate ground
for granting a protective order.
26(b)(2)(C)(i).

See Fed.R.Civ.P.

The comments made by Judge Watson at the

preliminary injunction hearing also arguably supported Mr.
Felsoci’s position on this last issue.

Consequently, although

most reasonable attorneys would have realized that their chances
of blocking Mr. Felsoci’s deposition altogether were not high,
that is not the standard.

Did they have arguments which were

more than “colorable” and which had some chance of persuading a
reasonable person?

They did.

This Court would be hard-pressed

to describe as unreasonable a decision which had accepted at
least one of these arguments, although the Court would consider
such a decision to have been made in error.

Consequently, the

Court does not find Mr. Felsoci’s conduct as to the deposition
issue to be sanctionable.
B.

Motion to Compel Production of Documents

The second issue addressed by Plaintiffs’ motion deals with
their efforts to obtain documents showing who was paying Mr.
Felsoci’s legal fees.

Again, as brief background, and as a short

summary of the Court’s order on this matter, see Libertarian
Party v. Husted, 2014 WL 3928293 (S.D. Ohio Aug. 12, 2014), the
key issue turned out to be whether Mr. Felsoci had a legal right
to ask his counsel for a document which revealed the identity of
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their “other client” - i.e. Mr. Casey - so that he could then
produce it to Plaintiffs.

Plaintiffs had previously asked Mr.

Felsoci if he knew who was paying his legal fees, and he denied
knowing.

Assuming that he was being truthful, that answer raised

a serious question about whether his counsel had made the type of
full disclosure to him which was required by the applicable rules
of professional responsibility.

As the Court noted, if an

arrangement a lawyer makes with separate clients “involves the
first client's paying for work done for the benefit of the second
client, at least some details of the arrangement must legally be
disclosed in order for the representation to be ethically
proper.”

Id. at *3.

Again, the Court did not decide whether Mr.

Felsoci’s attorneys had actually violated any ethical rules, but
it did determine that Mr. Felsoci had the legal right to ask them
for documents which showed who the “other client” was, and that
this right equated to “control” for purposes of Rule 34, so that
he had to produce a document to Plaintiffs which had that name which he ultimately did.
As with the issue relating to Mr. Felsoci’s deposition, the
question is whether the arguments made by his counsel supporting
Mr. Felsoci’s failure to produce this document had some
reasonable legal basis behind them.

As to the issue of control,

the Court is inclined to believe that no reasonable person would
dispute that Mr. Felsoci had a legal right to demand information
about who his attorneys’ “other client” was so that he could
decide, on an informed basis, whether to consent to the
arrangement involving payment of his fees.

Again, however, that

was not the only issue raised in the response to the motion.
There was also a question about whether the identity of that
client was privileged.
On that question, even Plaintiffs’ expert acknowledged that
the identity of a client may be a privileged matter if, by naming
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the client, it would become obvious why the client had sought
representation.

Although the Court ultimately rejected that

argument, it did not do so without engaging in an extended
discussion of the contours of the argument and the cases which
deal with various aspects of it.

Once again, the fact that an

argument ultimately proves unpersuasive does not mean that it had
no reasonable basis.

Especially when the issue involves the

disclosure of potentially privileged material, it has not been
this Court’s practice to sanction counsel for seeking a judicial
decision on a significant privilege issue, and the Court would
not do so unless the assertion of privilege was totally
unfounded.

Here, it was sufficiently well-supported to satisfy

the “substantially justified” test, meaning that sanctions would
be inappropriate.
III.

The Subpoenas

The final issue addressed in Plaintiffs’ motion for
sanctions relates to a motion to quash subpoenas served by Mr.
Felsoci on attorneys Mark Brown and Mark Kafantaris.

The Court

addressed this matter in Libertarian Party v. Husted,, 2014 WL
6910219 (S.D. Ohio Dec. 8, 2014).

In that decision, the Court

agreed with Plaintiffs that the subpoenas, as issued, set an
unreasonable time for compliance and that they were also “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.”

Id. at *2.

The Court

deferred a specific ruling on the motion to quash, however,
concluding that because the ostensible purpose of the subpoena
was to gather information about the amount of attorneys’ fees
Plaintiffs were requesting as sanctions for the other two
discovery matters at issue here, it would be better to determine
the question of entitlement to fees first before deciding how
best to require Plaintiffs to support their fee application and,
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correspondingly, how much information Mr. Felsoci would be
permitted to obtain in order to make a reasoned response.
Since the appropriateness of the subpoenas was litigated
through a motion to quash, Rule 37(a)(5) does not directly apply
to the question of sanctions; the matter is governed, rather, by
Rule 45, which, as this Court observed in DRFP, LLC v. Republic
of Venezuela, 2016 WL 491828 (S.D. Ohio Feb. 9, 2016), obliges a
party issuing a subpoena ‘“to avoid imposing undue burden or
expense on a person subject to [a] subpoena’ and to ‘protect a
person who is neither a party nor a party's officer from
significant expense resulting from compliance.’” Rule 45(d)(1)
also requires the court to “enforce this duty and impose an
appropriate sanction--which may include lost earnings and
reasonable attorney's fees--on a party or attorney who fails to
comply.”
As this Court said in Georgia-Pacific LLC v. American
Intern. Specialty Lines Ins. Co., 278 F.R.D. 187, 190 (S.D. Ohio
2010),
Unlike Rules 26 and 37, which focus on the conduct and
motivation of the party requesting discovery, Rule 45
focuses on the burden imposed on the recipient of the
subpoena. See Huntair, Inc. v. Climatecraft, Inc., 254
F.R.D. 677, 679 (N.D. Okla. 2008). So long as the duty
to avoid imposing an undue burden is violated, it is of
no consequence that the party or attorney who served
the subpoena acted in good faith. Id.; see also Liberty
Mut. Ins. Co. v. Diamante, 194 F.R.D. 20, 23 (D. Mass.
2000).
See also XTO Energy, Inc. v. ATD, LLC, 2016 WL 1730171, *32
(D.N.M. Apr. 1, 2016) (imposing attorneys’ fees incurred in
filing a motion to quash where the subpoena was improper and the
failure to withdraw it imposed an undue burden or expense on the
moving party).
To flesh this matter out, a rather full procedural history
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relating to the subpoenas and the motion to quash is necessary.
As already stated, the subpoenas were purportedly designed to
ferret out information relating to Plaintiffs’ claim for
attorneys’ fees associated with other discovery motions.

The

Court had not, at the point when they subpoenas were issued,
determined if Plaintiffs were entitled to any fees at all.
Before Plaintiffs moved for fees, they attempted to open a
dialogue with Mr. Felsoci’s counsel about the upcoming motion.
According to exhibits attached to the motion to quash (Doc. 173),
that dialogue (which appears to have been conducted exclusively
by email) consisted of Plaintiffs’ providing a calculation of
fees incurred in the relevant motions practice - including hours
expended and hourly rates charged - followed by Mr. Felsoci’s
observation that the whole issue was premature - which was
correct - but that he would consider the fee issue if he had
certain information (which later became the nine categories of
documents listed in the subpoenas).

Plaintiffs’ counsel offered

to provide some of it, including time sheets, and actually
produced timesheets on August 18, 2014.

Mr. Felsoci responded

that the documents were not original billing records.

After

Plaintiffs represented that the documents they provided to Mr.
Felsoci were the same ones they would use to support their
application for fees, and after again being rebuffed in their
effort to have a discussion about fees, they filed their motion
(Doc. 170).

The subpoenas issued the next day, and demanded

production of the nine categories of documents within seven days
thereafter.

(Doc. 172).

There is no question that some of the documents requested in
the subpoena (but, significantly, not all of them) were relevant
to the fee request.

On the other hand, this case represents the

only occasion on which this Magistrate Judge has seen, in almost
thirty years on the bench, a party send subpoenas to opposing
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counsel in connection with an otherwise routine motion for costs
and fees under Rule 37.

That procedure is especially problematic

where the Court had not, at that point, made any decision about
entitlement, had not directed any further briefing on the amount
of the fee request, and had not set a hearing.

Were this to

become a routine practice, every time a party moved for relief
under Rule 26, Rule 37, or some similar rule, and included a
request for fees - which is fairly routine even when an award of
fees is not particularly likely - that would open up moving
counsel to the receipt of subpoenas for their records.

Even if

the subpoenas were limited to matters clearly relevant and
admissible on the issue of the reasonableness of the fees - which
these were not - and even if they allowed for a reasonable time
to comply - which these did not - such a practice would unduly
complicate the case and unnecessarily compound the expense and
delay associated with it.
Did Mr. Felsoci have alternatives?

Of course.

He could

have asked for a conference with the Court to discuss bifurcating
the fee matter into entitlement and amount.

He could have

requested the Court to become involved on an informal basis in
deciding what documentation the Court expected to see in support
of a fee request.

If the Court told a moving party that, in

order properly to support a fee request, that party had to submit
certain types of records - for example, original time entries or
affidavits supporting a particularly hourly rate - it is unlikely
that the party would refuse to produce that documentation or
demand that it be served with a subpoena.

There are many

different ways that reasonable attorneys would have handled, and
do handle, this type of issue without resorting to immediate
service of an overbroad subpoena.

In the Court’s view, the

issuance of those two subpoenas had less to do with making sure
that the Court had an adequate basis for making a fee award or
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that Mr. Felsoci had an adequate opportunity to contest it, and
more to do with attempting to badger or intimidate Plaintiffs’
counsel and forcing them to seek relief from the Court.
Certainly, it came nowhere close to avoiding placing an undue
burden or expense on Plaintiffs’ counsel, and the history of the
behavior of counsel in this case only underscores that point.
That is an occasion for cost-shifting under Rule 45.
As to the amount, to some extent, Plaintiffs’ counsel could
have avoided much of the expense of filing an eighteen-page
motion by simply asking for an informal conference with the Court
before filing the motion.

While that procedure is not

technically required by the Local Civil Rule 37.1, it is also not
precluded by anything in those rules, and in this case, it would
have enabled the Court to do what it ultimately did, which was to
defer further litigation as to the amount of fees until it
decided if Plaintiffs were entitled to any.

Still, counsel had

to spend some time reviewing the subpoenas and deciding on a
course of action, and they would have had to have arranged for
and participated in a conference.

For that work, compensation in

the amount of $1,500.00 seems adequate, and the Court will make
that award.
IV.

Order

For the reasons set forth above, Plaintiffs’ renewed motion
for attorneys’ fees (Doc. 380) is granted in part and denied in
part.

Counsel for intervening defendant Gregory Felsoci shall

pay fees, awarded under Fed.R.Civ.P. 45, in the amount of
$1,500.00 within 21 days of the date of this order.
V.

Motion for Reconsideration

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.

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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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