Ohio A. Philip Randolph Inst. v. Smith

360 F. Supp. 3d 681
District Court, S.D. Ohio·Decided December 21, 2018·No. No. 1:18cv357·Published·Cited by 1 cases

Opinion

*686This case is before the Court on Plaintiffs' motion ("Motion") to compel compliance with subpoenas served on third-parties the Republican National Committee ("RNC"), National Republican Congressional Committee ("NRCC") and Adam Kincaid (collectively, "Respondents"), as well as the parties' responsive memoranda.1

I. INTRODUCTION

A. Background.

This case is a challenge to Ohio's current United States congressional redistricting plan ("Map") and each of its component districts. Plaintiffs allege the Map is an unconstitutional partisan gerrymander that violates the First Amendment, the Fourteenth Amendment, and Article I of the United States Constitution.

Plaintiffs allege that, in anticipation of the 2010 Census, the Republican State Leadership Committee ("RSLC"), a national organization designed to elect Republicans to state-level offices, formulated a strategy to solidify and increase Republican control of state legislatures in states where the congressional redistricting process would be controlled by those legislative bodies. (Second Amended Complaint at ¶ 44). To implement this strategy, the RSLC organized and implemented the REDistricting Majority Project ("REDMAP"). (Id. at ¶ 45). REDMAP aimed to control the redistricting process in certain states to have the greatest impact on determining how both state legislative and congressional district boundaries would be drawn, to solidify conservative policymaking at the state level, and to maintain a Republican stronghold in the U.S. House of Representatives for the next decade. (Id. at ¶ 45).

Plaintiffs allege Ohio was one of the states targeted by the RSLC under REDMAP and that the RSLC spent nearly $ 1 million on races for the Ohio House of Representatives in advance of the 2010 election. (Second Amended Complaint at ¶ 46). In 2010, the Republican Party "captured" the Ohio House of Representatives, bringing Ohio under single-party control of the Republican Party. (Id. )

After the November 2010 elections, Plaintiffs allege, the Republican Party shifted its focus to help state map drawers in their efforts to capture more seats through redistricting. They did this in part by utilizing the single-party control of the Ohio General Assembly to dictate the drawing of Ohio's U.S. congressional map. (Id. at ¶ 47).

*687Ohio's General Assembly has the primary authority for drawing Ohio's U.S. congressional districts. (Second Amended Complaint at ¶ 42); Ohio Rev. Code § 103.51. However, Plaintiffs allege the Map was actually drawn by Ohio Republican operatives Ray DiRossi and Heather Mann, who were provided with the RNC's redistricting training materials and who worked in coordination with national Republican operatives including Adam Kincaid and Tom Whatman. (Id. at ¶¶ 52-55). Mr. Kincaid is the Redistricting Coordinator of the NRCC. (Id. at ¶ 55). Mr. Whatman was the executive director of "Team Boehner"-named after then-Speaker of the House John Boehner-which was created to work in concert with the RNC and NRCC to expand the Republican majority in the U.S. House of Representatives. (Id. )

Plaintiffs allege Ohio's congressional map was designed to pack Democrats into four districts, and crack Democratic voters across the remaining 12 districts, to ensure Republicans would maintain a 12-4 advantage in Ohio's congressional seats. (Second Amended Complaint at ¶¶ 59-61). Plaintiffs argue that the Map burdens their rights under the First and Fourteenth Amendments and exceeds the state's power under Article I of the U.S. Constitution because it is a product of partisan gerrymandering.

B. Plaintiffs' subpoenas and the Respondents' responses.

Plaintiffs served subpoenas on Mr. Kincaid, the RNC, and the NRCC on June 28, 2018, July 2, 2018, and July 2, 2018 respectively. (Declaration of Theresa Lee ("Lee Dec.") at ¶ 2).2

Respondents ran search terms provided by Plaintiffs and retrieved 23,687 documents. (Declaration of Shawn Sheehy ("Sheehy Dec.") at ¶ 5).3 Of those documents, 22,915 were non-responsive to Plaintiffs' subpoenas. (Id. ) Respondents withheld 236 documents pursuant to various privileges and produced the remaining 75 documents. (Id. at 5).

There are three privileges at issue. First, Respondents contend some of the documents at issue are shielded from discovery by the First Amendment privilege. In support of this claim, Respondents submitted the declarations of Chris Winkleman (general counsel of the NRCC), Dalton Oldham (national redistricting counsel for the RNC), and Mr. Kincaid. All three affidavits state the documents they are withholding pursuant to the First Amendment privilege were intended to assist Republican candidates in winning elections, and disclosure of those documents would "drastically and adversely affect" how they communicated in the future. (Declaration of Dalton Oldham ("Oldham Dec.") at ¶¶ 7-11; Declaration of Chris Winkleman ("Winkleman Dec.") at ¶¶ 9-14; Declaration of Adam Kincaid ("Kincaid Dec.") at ¶¶ 14-19).4

Second, the RNC argues that documents identified on its privilege log are shielded from discovery by the attorney-client privilege and the work-product doctrine. (Doc. 1-3 at PID # 165).

To evaluate Respondents' privilege claims, the Court ordered Respondents to produce the contested documents for in camera review. (Docs. 101, 116). The Court has reviewed all of the documents at issue, *688with the exception of several documents that can only be viewed on mapdrawing software the Court does not have, and rules as follows.

II. STANDARD

Pursuant to the Federal Rules of Civil Procedure, parties may "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the party's resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1) (emphasis supplied).

The sole question before the Court is whether the documents withheld by Respondents fall outside the scope of Rule 26 because they are protected by the First Amendment privilege, the attorney-client privilege, and/or the work-product doctrine.

III. ANALYSIS

A. The First Amendment Privilege.

Respondents argue that some documents in their possession, and responsive to Plaintiffs' subpoenas, are shielded from discovery by the First Amendment privilege because disclosure would result in a chilling effect on Respondents' protected speech. (Memo. in Opp.

Free access — add to your briefcase to read the full text and ask questions with AI

Ohio A. Philip Randolph Inst. v. Smith, 360 F. Supp. 3d 681 (S.D. Ohio 2018).

360 F. Supp. 3d 681 (Ohio A. Philip Randolph Inst. v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related