Duncan v. Husted

Filing 63

OPINION AND ORDER denying 52 Motion for Permission to Subpoena and Depose Pat McDonald; granting 53 Motion To Allow Duncan's Scheduled Depositions By Non-Stenographic Means; denying 62 Motion For The Secretary of State To Furnish A Publ ic Records Request Prior To Any Depositions. Signed by Magistrate Judge Terence P Kemp on 4/7/2015. (agm1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified text on 4/7/2015 (agm1).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Richard Duncan,

:
Case No. 2:13-cv-1157

Plaintiff,

:
JUDGE ALGENON L. MARBLEY

v.

:
Magistrate Judge Kemp

Secretary of State Jon A. Husted,
Defendant.

:
OPINION AND ORDER

Plaintiff Richard Duncan, who is representing himself in
this matter, is a resident of Ohio who has run for United States
President in the last three elections.

He has brought this

action against Defendant Secretary of State Jon Husted to
challenge the constitutionality and legality of amendments to
Ohio Rev. C. §§3513.262 & 3513.263.

The amendments that he is

challenging reduce the time period in which an individual who
wishes to run in an Ohio election as an independent candidate may
gather nominating-petition signatures.
By order filed on February 23, 2015, the Court set this case
for trial on June 22, 2015.

Shortly thereafter, Mr. Duncan filed

a motion for permission to depose Cuyahoga County Board of
Elections Director Pat McDonald (Doc. 52).

He had previously

been permitted to schedule the deposition of Matt Damschroeder of
the Secretary of State’s office, and proposed to take the two on
the same day at the Attorney General’s office in Cleveland.

On

March 2, 2015, Mr. Duncan moved for permission to record both
depositions by non-stenographic means - specifically, by way of a
tape recording, with Mr. Duncan as the operator.

He also

proposed that he be permitted to prepare transcripts himself and
file them with the Court.

Both motions are now fully briefed.

For the following reasons, the Court will grant the second motion
in part, and deny the first.

I.

Recording Depositions

Mr. Duncan’s most recent motion is not the first time he has
requested permission to record deposition testimony.

As this

Court noted in its Opinion and Order of September 17, 2014, the
1993 Advisory Committee Notes to Fed.R.Civ.P. 30 state that the
Rule “requires that all depositions be recorded by an officer
designated or appointed under Rule 28 and contains special
provisions designed to provide basic safeguards to assure the
utility and integrity of recordings taken other than
stenographically.”

That Opinion and Order cited to a number of

decisions holding that to allow a party to record and transcribe
a deposition is at odds with the purpose of the Rule, which is to
insure the accuracy and integrity of the recording and
transcription process.

Defendant Husted points out that the law

has not changed since that ruling and that, in any event, even if
Mr. Duncan were allowed to operate the recording equipment, he
would still have to have an officer or other person appointed by
the Court certify the transcript.

Mr. Duncan’s reply states that

he would make the recording “under the direction of the notary”
who will be present to administer the oath.

Doc. 60, at 1.

It is not clear exactly what Mr. Duncan means by making a
recording “under the direction of the notary.”

Under Rules 28

and 30, the notary - that is, the “officer” who is authorized to
administer oaths and take testimony - is the person before whom
the deposition is to be taken, and that officer’s duties include
recording the deposition by an acceptable means (including audio
recording) and, if the deposition is to be taken by nonstenographic means, placing certain information on the record at
the beginning of each unit of recording.

The officer also has

duties to be performed at the conclusion of the deposition, as
spelled out in Rule 30(b)(5)(C).

If what Mr. Duncan contemplates

is that the notary or “officer” before whom the deposition is
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being taken will perform all of these duties, and will also
provide some supervision to Mr. Duncan in his operation of the
recording equipment - for example, instructing him when to begin
and end the recording - as well as take physical custody of the
original recording at the conclusion of the deposition to secure
it from tampering - then the procedure may well comply with Rules
28 and 30.

As the court said in Ott v. Stipe Law Firm, 169

F.R.D. 380 (E.D. Okla. 1996), if a deposition (in that case, a
video deposition) is conducted with a party’s attorney as the
camera operator, and the Rules are otherwise complied with, the
process may be acceptable; the Rules’ concern with accuracy and
integrity “‘has markedly less significance when the attorney is
merely making a stationary video recording of a deposition which
can be easily duplicated and given to all parties.’”

Id. at 382,

quoting Rice's Toyota World, Inc. v. Southeast Toyota
Distributors, Inc., 114 F.R.D. 647, 651 (M.D.N.C. 1997).

The

same should be true for an audio recording.
In short, if Mr. Duncan is proposing that he perform a
purely mechanical task (i.e. providing the audio tape equipment
and turning it on and off at the direction of the notary), and if
the notary performs the other duties required by Rules 28 and 30,
the Court believes the process is permissible.

It is important

to recall that Fed.R.Civ.P. 1 states that the Rules of Civil
Procedure “should be construed and administered to secure the
just, speedy, and inexpensive determination of every action and
proceeding.”

There is no reason to put parties to additional

expense if that serves no purpose.

Consequently, the Court

grants Mr. Duncan’s motion to the extent that it asks for leave
for him to provide and operate audio recording equipment at the
direction of the officer before whom the deposition is to be
taken.

The Court will deal with the issue of how the testimony

is to be transcribed if and when that issue arises.
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II.

The McDonald Deposition

In his motion to subpoena and depose Mr. McDonald, Mr.
Duncan states, by affidavit, that based on a telephone call to
the Cuyahoga County Board of Elections, he concluded that Mr.
McDonald has facts relating to the case, particularly because Mr.
Duncan had collected about 25% of his signatures from Cuyahoga
County.

It appears he wishes to inquire about the burden placed

on the county boards of election by certain procedures which,
according to Defendant Husted, the statutes in question were
intended to lessen.

In response, Defendant Husted asks the Court

to enforce the discovery cutoff date of July 31, 2014, which has
been extended only to allow Mr. Damschroeder to be deposed.

He

also suggests that this issue is foreclosed by the Court’s prior
ruling quashing a subpoena directed to Mr. McDonald.

See Doc. 39

(quashing a subpoena issued to Mr. McDonald because Mr. Duncan
had not filed a memorandum opposing Mr. McDonald’s motion to
quash which raised the issue of undue burden).

In his reply, Mr.

Duncan attributes some of the delay in filing his motion to the
time it took the Court to rule on Defendant Husted’s motion for a
protective order, plus the fact that Mr. Duncan did not have the
information he seeks to elicit from Mr. McDonald about the
relative burden caused by the review of 3,000 signatures on
nominating petitions.
Extending a discovery cutoff requires a showing of good
cause.

Fed.R.Civ.P. 16(b).

Good cause is determined based on an

evaluation of the diligence of the moving party.

Deghand v. Wal-

Mart Stores, 904 F.Supp. 1218, 1221 (D. Kan. 1995).

Deadlines

like a discovery cutoff date are important to keeping a case on
schedule and reducing both cost and delay.

Rouse v. Farmers

State Bank, 866 F.Supp. 1191, 1199 (N.D. Iowa 1994).
Here, Mr. Duncan has certainly been aware for some time that
the issue of how certain nominating petitions do or do not burden
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county boards of election is an issue in this case.

He also

presumably knew that a significant portion of his signatures were
gathered in Cuyahoga County, and in fact he attempted to subpoena
Mr. McDonald in the past.

There is nothing new in his current

attempt other than the fact that he may now have a better idea of
what Mr. McDonald would say if deposed, but finding out what a
witness has to say is the basis for taking a deposition in the
first instance, and, in any event, there is no reason to believe
that Mr. Duncan could not have obtained the same information
earlier had he simply made the telephone call to which he refers
in his motion.

Further, the delay in ruling on Defendant

Husted’s motion for a protective order had nothing to do with
other proposed discovery.

For all these reasons, the Court

agrees that good cause has not been shown to extend the discovery
cutoff for purposes of allowing Mr. McDonald to be subpoenaed for
a deposition.
III.

An Additional Motion

On March 23, 2015, Mr. Duncan filed a document styled
“Request for the Secretary of State to Furnish a Public Records
Request Prior to any Depositions.”

Although the body of the

document appears to be a public records request, presumably made
pursuant to Ohio Rev. Code §149.43, Mr. Duncan also asks the
Court to postpone any depositions until he has received the
records, which consist of signed nominating petitions for five
candidates in the 2012 presidential election.
Given the trial date, there is no room in the schedule to
delay the Damschroeder deposition any further.

It is unclear how

many documents would be responsive to Mr. Duncan’s request, or
how long it may take for them to be produced.
asked for these documents earlier in the case.

He could have
The Court sees no

reason to delay further the completion of discovery to await
their production.

The Court does assume, however, that Defendant
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Husted will comply with Ohio law concerning any public records
request.
IV.

Order

For all these reasons, the Court grants the motion to allow
non-stenographic recording of Matt Damschroeder’s deposition
(Doc. 53) on the conditions outlined above, denies the motion for
permission to subpoena and depose Pat McDonald (Doc. 52), and
denies that portion of the motion for public records (Doc. 62)
which asks for a delay of the Damschroeder deposition.

That

deposition shall be taken, if at all, within 21 days of the date
of this order.
V.

Procedure 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.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

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, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge

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