The Ohio Organizing Collaborative et al v. Husted et al

Filing 69

OPINION AND ORDER denying 60 Motion to Compel except that plaintiffs must forthwith produce a privilege log in accordance with Rule 26(b)(5) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Norah McCann King on 11/12/2015. (pes)

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

THE OHIO ORGANIZING COLLABORATIVE,
et al.,
Plaintiffs,
Case No. 2:15-cv-01802
Judge Watson
Magistrate Judge King

v.
JON HUSTED, et al.,
Defendants.

OPINION AND ORDER
This action was initiated by the Ohio Organizing Collaborative
(“OOC”) and two individuals. On September 2, 2015, the OOC was granted
leave to withdraw as a plaintiff and the Ohio Democratic Party, the
Democratic Party of Cuyahoga County, and the Montgomery County
Democratic Party (collectively, “the Democratic Party”) were
substituted as plaintiffs. Opinion and Order, ECF No. 40. Plaintiffs
seek declaratory and injunctive relief, alleging that the defendants’
implementation and administration of six statutes and directives (the
“Challenged Provisions”)1 violate the First, Fourteenth, and Fifteenth
Amendments to the United States Constitution, Section 2 of the Voting
Rights Act, 52 U.S.C. § 10301, and Section 1971 of the Civil Rights

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The Challenged Provisions are (1) S.B. 238, which eliminates the so-called
“Golden Week”; (2) Ohio Rev. Code § 3501.10(C), which limits early in-person
voting locations to one per county; (3) S.B. 200, which changes the voter
registration maintenance system and the formula for determining the number of
electronic voting machines allocated to each county; (4) S.B. 205, which
alters the absentee ballot requirements; (5) Directive 2014-15, which
addresses the mailing of unsolicited absentee ballots; and (6) S.B. 216,
which changes provisional ballot requirements. See Amended Complaint at
PAGEID# 472-95.
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Act of 1964, 52 U.S.C. § 10101. Named as defendants are the Ohio
Secretary of State and the Ohio Attorney General in their official
capacities. See generally Amended Complaint, ECF No. 41.
On November 6, 2015, defendants filed Defendants’ Motion to
Compel, ECF No. 60 (“Motion to Compel”) seeking production of
documents in response to defendants’ Requests for Production (“RFP”)
Nos. 8-15, 19, 20, 22, 23, and 37. For the following reasons, the
Motion to Compel is DENIED except that plaintiffs must forthwith
produce a privilege log in accordance with Rule 26(b)(5) of the
Federal Rules of Civil Procedure.
I. Background
Plaintiffs allege that the Challenged Provisions, if enforced in
future elections, will severely limit poll access to thousands of
Ohioans in violation of the First and Fourteenth Amendments, Amended
Complaint at PAGEID# 502 (Count I), were intended, at least in part,
to discriminate against racial minorities in violation of the
Fourteenth and Fifteenth Amendments, id. at PAGEID# 504 (Count II),
violate the Equal Protection Clause by “fencing out” voters based on
predicted voting patterns, id. at PAGEID# 505 (Count III), and violate
Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, by denying
African American and Latino voters the ability to vote based on their
race, id. at PAGEID# 505-06 (Count IV). Plaintiffs also allege that
S.B. 205 and S.B. 216 will deny voters the right to vote as a result
of immaterial errors on absentee ballot identification envelopes and
provisional ballot affirmation forms in violation of Section 1971 of
the Civil Rights Act of 1964, id. at PAGEID# 507 (Count V), that

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defendants’ failure to provide notice and opportunity to correct
mistakes on provisional ballot affirmation forms constitutes a
violation of voters’ rights to procedural due process under the
Fourteenth Amendment, id. at PAGEID# 508 (Count VI), and that, by
granting to county boards of election the discretion to combine
pollbooks in multi-precinct voting locations, S.B. 216 creates an
arbitrary system that penalizes some voters in violation of the Equal
Protection Clause of the Fourteenth Amendment, id. at PAGEID# 509
(Count VII).
During discovery, defendants requested the production of all
financial information from the Democratic Party (RFP 8, 14), all
documents relating to the effect of the Challenged Provisions on the
Democratic Party’s Get Out the Vote (“GOTV”) drives and other voting
initiatives (RFP 9, 10, 11), and all internal and external
communications relating to the Challenged Provisions, including
communications about the Democratic Party’s decision to join the
litigation and documents reflecting any internal dissent regarding
that decision (RFP 12, 19, 20, 22, 23). See Plaintiffs’ Opposition to
Defendants’ Motion to Compel (“Plaintiffs’ Opposition”), Exhibit A,
ECF No. 62-1. Defendants also requested the identities of the
Democratic Party’s officers or “controlling” members (RFP 13), any
documents referencing any plan, program, purpose, or event relating to
the Challenged Provisions (RFP 15), and all documents referencing the
Democratic Party’s decision to join the lawsuit (RFP 37). See id.
Plaintiffs responded to defendants’ requests for production on October
9, 2015. See Plaintiffs’ Opposition, Exhibit A. Plaintiffs objected to

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RFP 8-15, 19, 20, 22, 23, and 37 on a number of grounds, including
relevance, overbreadth, redundancy, attorney-client privilege, and an
associational privilege under the First Amendment. See id.2

Plaintiffs

did not produce a privilege log.
The Motion to Compel characterizes the discovery sought as
“highly relevant” to not only the merits of plaintiffs’ claims but
also the Democratic Party’s standing to pursue the claims asserted in
this action. Motion to Compel, PAGEID# 695. The motion seeks the
production of documents responsive to the requests and asks that
plaintiffs be required to produce a privilege log for all documents
withheld or redacted based on any claimed privilege. Id. at PAGEID#
690. Recognizing the sensitivity of the information sought by the
challenged requests, defendants propose a protective order that would
prohibit the public disclosure of the information sought. See id.
Plaintiffs’ Opposition characterizes the Motion to Compel as
untimely because it was filed after the close of discovery,
Plaintiffs’ Opposition at PAGEID# 700, and deficient because it lacks
the certification required by Rule 37(a) of the Federal Rule of Civil
Procedure and because defendants made no effort to meet and confer
with plaintiffs prior to filing the motion. See id. Plaintiffs also
contend that the First Amendment’s associational privilege protects
the information sought from production to defendants, see id. at
PAGEID# 701-08, and they argue that even producing a privilege log

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Plaintiffs produced materials responsive to RFP 8 – 11, and 15 insofar as
those requests related to past GOTV, voter registration, and other campaignand election-related efforts, but objected to the requests to the extent that
they related to plaintiffs’ future plans. Plaintiffs’ Opposition, PAGEID#
700, n. 1.
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would infringe on their First Amendment rights. See id. at PAGEID#
709.
II. Discussion
The Motion to Compel is defective on several bases. First,
defendants have not established that they satisfied Rule 37(a), which
requires that a motion to compel discovery “include a certification
that the movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discovery in an
effort to obtain it without court action.” Fed. R. Civ. P. 37(a). on
this basis alone, then, the Motion to Compel must be denied. Moreover,
defendants’ discovery requests are, in certain respects, overbroad and
burdensome. For example, RFP 14 requests the production of “[a]ll
documents related to, or reflecting ODP’s, DPCC’s, or MCDP’s
accounting books, financial statements, annual statements, budgets,
earnings, expenses, line items, income, donations, debt, loans,
forecasts, and projections.” See Plaintiffs’ Opposition, Exhibit A at
PAGEID# 731. Although the scope of discovery is generally broad, see
Fed. R. Civ. P. 26(b), courts nevertheless have the discretion to
“limit the scope of discovery where the information sought is overly
broad or would prove unduly burdensome to produce.” Surles ex rel.
Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007);
see also Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir.
1998). Even assuming that the requested discovery is relevant to the
issue of standing, an issue that “requires only a minimal showing of
injury,” Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 950-51
(7th Cir. 2007) aff’d, 553 U.S. 181, 189 n. 7 (2008)(Holding that

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political party has standing to challenge the constitutionality of a
state law that required registered voters to present a photo ID), the
breadth of the discovery requests and the burden on plaintiffs in
responding to those requests outweigh the “likely benefit, considering
the needs of the case. . . ” See Fed. R. Civ. P. 26(b)(2)(C)(iii).
Particularly is this so in light of the Democratic Party’s production
of documents relating to its past GOTV, voter registration, and other
campaign- and election-related efforts.3
More importantly, however, the Court concludes that the
information sought by the challenged requests for production of
documents is privileged under the First Amendment.
The broad scope of discovery excludes privileged information. See
Fed. R. Civ. P. 26(b). The First Amendment’s associational privilege
recognizes that, in certain circumstances, the right to freedom of
association can outweigh the need for disclosure of information. See,
e.g., NAACP v. Alabama, 357 U.S. 449, 460-67 (1958). This freedom to
associate includes the freedom to make financial contributions to
further a common goal and the compelled disclosure of information may
be inappropriate when it negatively impacts an organization’s ability
to “pursue collective effort to foster beliefs,” or “induce[s] members
to withdraw.” See id. at 462-63; Tree of Life Christian Sch. V. City
of Upper Arlington, No. 2:11-cv-00009, 2012 WL 831918, at *2 (S.D.
Ohio Mar. 12, 2012) (citing Buckley v. Valeo, 424 U.S. 1, 22 (1976)).
The associational privilege is not absolute, however, and courts
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In reaching this conclusion, the Court expresses no opinion as to the proper
resolution of the issue of the Democratic Party’s standing to pursue the
claims asserted in this action. That issue remains for the District Judge’s
consideration and determination.
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confronting the issue must balance one litigant’s interest in
discovery against the burden on another litigant’s constitutional
right of association. See Tree of Life, 2012 WL 831918, at *2.
The party asserting associational privilege must first
demonstrate an “arguable first amendment infringement.” See id. at *3
(citing Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010)).
“[A] party must ‘demonstrate an objectively reasonable probability
that disclosure will chill associational rights.’” Id. at *3 (quoting
Independence Inst. V. Gessles, No. 10-cv-00609, 2011 WL 809781, at *2
(D. Colo. Mar. 2, 2011). A court must then consider “whether
disclosure will result in ‘membership withdrawal, discouragement of
new members, or. . . other consequences which objectively suggest an
impact on. . . the members’ associational rights.’” Id. (quoting
Perry, 591 F.3d at 1160).
If the party invoking the privilege carries this initial burden,
the burden then shifts “to the party seeking discovery to
‘demonstrate[] an interest in obtaining the disclosures it seeks. . .
which is sufficient to justify the deterrent effect. . . on the free
exercise. . . of [the] constitutionally protected right of
association.’” Id. (quoting Perry, 591 F.3d at 1161). “Courts will
look to a variety of factors in balancing these interests, including
(1) the relevance of the evidence; (2) the necessity of receiving the
information sought; (3) whether the information is available from
other sources; and (4) the nature of the information.” Id. (internal
quotations omitted). The party seeking discovery must demonstrate that
the information sought is highly relevant to the claims or defenses in

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the case, a more stringent showing than is required by the general
relevancy requirement under Rule 26(b)(1). See id.
Defendants contend that the plaintiffs have failed to demonstrate
an arguable First Amendment infringement because they present no
evidence of threats, harassment, or reprisals. Motion to Compel at
PAGEID# 693. However, the avoidance of threats, harassment, or
reprisals is just one interest protected by the First Amendment
freedom of association. See NAACP v. Alabama, 357 U.S. at 462 (Noting
that the plaintiff had made an “uncontroverted showing that on past
occasions revelation of the identity of its rank-and-file members has
exposed these members to economic reprisal, loss of employment, threat
of physical coercion, and other manifestations of public hostility.)”.
In this case, plaintiffs have demonstrated an objectively reasonable
probability that further substantive response to RFP 8-15, 19, 20, 22,
23, and 37 would have a chilling effect on plaintiffs' First Amendment
associational rights. The challenged requests seek the Democratic
Party’s financial information (RFP 8 and 14), strategic plans (RFP 911, 15), and internal and external communications in connection with
this litigation (RFP 12, 19, 20, 22, 23, 37). Plaintiffs’ Opposition,
Exhibit A at PAGEID# 720-746, 757. To require the Democratic Party to
make further substantive response to the challenged requests would
require the disclosure of a wealth of financial, donor, membership,
and strategic information – information that goes far beyond the issue
of standing or even the merits of this action. The Court has no doubt
that the compelled disclosure of such sensitive information in the
context of highly charged litigation involving issues of great

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political controversy would have a chilling effect on plaintiffs’
freedom of association by adversely impacting their ability to
organize, promote their message(s), and conduct their affairs. See,
e.g., AFL-CIO v. FEC, 333 F.3d 168, 177 (D.C. Cir. 2003) (Holding that
the disclosure of internal planning materials of a political
organization would have a chilling effect on the group’s First
Amendment rights). Under these circumstances, the Court concludes that
plaintiffs have made the required threshold showing of the First
Amendment privilege.
The Court also concludes that defendants have failed to carry
their burden of establishing an interest in the discovery sought that
is sufficient to overcome plaintiffs’ First Amendment concerns. As
noted supra, the Democratic Party has produced documents relating to
its past elections-related activities and much of the discovery still
sought by defendants goes far beyond the reasonable needs of
defendants in this litigation. Under these circumstances, defendants
have not established that the information sought by the challenged
requests is highly relevant to either the issue of standing or the
merits of plaintiffs’ claims.
Defendants’ argument that a protective order will adequately
preserve plaintiffs’ First Amendment associational rights is similarly
unavailing. See Motion to Compel at PAGEID# 689. The case on which
defendants rely in this regard, Marshall v. Bramer, 828 F.2d 355 (6th
Cir. 1987), involved only the production of an organization’s
membership list pursuant to a protective order prohibiting the public
filing of that list. Marshall did not involve, as do the challenged

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requests in this case, the requested disclosure of sensitive political
information – not highly relevant to the claims or defenses of the
action - to parties that can reasonably be perceived as political
adversaries. See id. It is the very fact that defendants would have
access to this sensitive information that gives rise to the Democratic
Party’s First Amendment concerns. The protective order proposed by
defendants would not alleviate those First Amendment concerns.
In short, this Court concludes that defendants have not
established that further substantive response to the challenged
requests is appropriate.
However, although plaintiffs have established a First Amendment
associational privilege, the mere invocation of that privilege does
not shield the Democratic Party from the requirements of Rule
26(b)(5). That Rule requires that a party who resists discovery based
on privilege produce a privilege log that
describes the nature of the documents, communications, or
tangible things not produced or disclosed – and do so in a
manner that, without revealing information itself
privileged or protected, will enable other parties to
assess the claim.
Fed. R. Civ. P. 26(b)(5)(emphasis added). Plaintiffs concede that they
failed to produce a privilege log, but argue that to do so would be
tantamount to an infringement on their First Amendment rights because
“[a] privilege log would disclose the identities of Plaintiffs’
supporters and those with whom they communicate about their plans,
strategies and goals.” Plaintiffs’ Opposition, PAGEID# 709. This Court
disagrees. The Rule expressly contemplates a privilege log that does
not disclose the “privileged or protected” information. The Democratic

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Party must, therefore, produce a privilege log that, without divulging
the privileged information, refers to each document withheld (or
category of documents withheld) and includes sufficient information to
justify the invocation of the privilege. See Fed. R. Civ. P. 26(b)(5).

For the foregoing reasons, the Motion to Compel, ECF No. 60, is
DENIED except that plaintiffs must forthwith produce a privilege log
in accordance with Rule 26(b)(5) of the Federal Rules of Civil
Procedure.

s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge

November 12, 2015

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