Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 1 of 9 PAGEID #: 2883

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1 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 1 of 9 PAGEID #: 2883 LIBERTARIAN PARTY OF OHIO, et al., and ROBERT HART, et al., UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Plaintiffs, Intervenor-Plaintiffs, Case No. 2:13-cv v. JUDGE WATSON MAGISTRATE JUDGE KEMP JON HUSTED, in his Official Capacity as Secretary of State, THE STATE OF OHIO, and GREGORY A. FELSOCI, Defendant, Intervenor-Defendant, Intervenor-Defendant, / MOTION TO COMPEL Plaintiffs respectfully move under Federal Rule of Civil Procedure 37(a)(1) for an order compelling that Intervenor-Defendant-Felsoci ("Felsoci") produce documents that were requested on May 27, See Doc. No.109; Exhibit 1 (attached). Felsoci responded by United States postal service on July , three days after production was due, with numerous objections to Plaintiffs' production request. See Exhibit 2 (attached). 1 As explained below,

2 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 2 of 9 PAGEID #: 2884 Felsoci's objections are untenable. In particular, Felsoci has asserted attorney-client privilege to protect documents in his or his attorneys' possession, see Exhibit 2 (attached), yet has failed to produce an attorney-client privilege log. Plaintiffs respectfully request that Felsoci be ordered to immediately produce the requested documents, together with an attorney-client privilege log to account for any and all documents claimed to be privileged. Plaintiffs also respectfully move that Felsoci be ordered under Rule 37(a)(5) to pay Plaintiffs' reasonable expenses incurred in making the motion, including attorney's fees. Plaintiffs hereby certify under Federal Rule of Civil Procedure 37(a)(1) and Local Rule 37.1 that they have in good faith attempted to confer with Felsoci in an effort to obtain the requested discovery without court action. In support of this Motion, Plaintiffs attach the following Memorandum of Law, two evidentiary Exhibits (numbered 1-2), and a proposed Order (Exhibit 3). Respectfully submitted, /s/ Mark R. Brown Mark R. Brown, Trial Counsel 303 East Broad Street Columbus, OH (614) (614) (fax) mbrown@law.capital.edu Mark Kafantaris 625 City Park Avenue Columbus, Ohio (614) (614) (fax) mark@kafantaris.com Attorneys for Plaintiffs 2

3 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 3 of 9 PAGEID #: 2885 CERTIFICATE OF SERVICE I hereby certify that this Motion and incorporated Memorandum were filed using the Court's electronic filing system and will thereby be served on all parties to these proceedings. /s/ Mark R. Brown Mark R. Brown MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL PRODUCTION FACTS This case was filed on September 25, 2013 challenging Ohio's residence requirement for circulators. See Doc. No. 1. The Complaint was amended as of right on November 8, 2013 to challenge S.B. 193, which purported to prevent minor parties from participating in Ohio's 2014 primary. See Doc. No. 16. Preliminary injunctive relief was awarded to Plaintiffs on November 13, 2013 preventing the Secretary from enforcing Ohio's residence requirement for circulators. See Doc. No. 18. On December 10, 2013, the Secretary noticed Plaintiffs' depositions, along with the deposition of their expert, Richard Winger. See Doc. No. 34. These depositions were conducted without objection from the Plaintiffs a few days later. On January 7, 2014, the Court awarded Plaintiffs preliminary injunctive relief preventing Defendant-Secretary from enforcing S.B. 193 in See Doc. No. 47. The Secretary's interlocutory appeal was subsequently voluntarily dismissed. See Doc. No

4 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 4 of 9 PAGEID #: 2886 On March 7, 2014, Plaintiffs moved to amend their Complaint to challenge the Secretary's removal of Plaintiff-Earl from Ohio's primary ballot. See Doc. No. 56. This became the Second Amended Complaint supporting Plaintiffs' third motion for preliminary injunction. See Doc. No. 57. Intervenor-Defendant-Felsoci moved to intervene, without opposition, on March 10, See Doc. No. 58. The Court denied Plaintiffs' preliminary relief on March 19, 2014, see Doc. No. 80, after denying Felsoci's motion to dismiss under Rule 12 from the bench on March 17, See Doc. No. 75. Plaintiffs' interlocutory appeal failed, with the Sixth Circuit affirming this Court's denial of preliminary injunctive relief on May 1, 2014, the Supreme Court refusing an application for a stay on May 5, 2014, and the Sixth Circuit refusing to rehear the appeal en banc on June 4, Plaintiffs on May 27, 2014 noticed Felsoci to produce documents connected to Plaintiff- Earl's removal from Ohio's 2014 ballot. See Doc. No. 109; Exhibit 1 (attached). That production was due on June 30, Felsoci, apparently on June 30, 2014, mailed using the United States postal service his response to Plaintiffs. That response, see Exhibit 2 (attached) was received by Plaintiffs on July 3, Felsoci did not electronically transmit a copy of his response to Plaintiffs. 1 1 Local Rules in this District require that lawyers who register to use the Court's electronic filing system consent to service of all documents, including discovery documents, by electronic means. See ELECTRONIC FILING POLICIES & PROCEDURES MANUAL, UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF OHIO (Feb. 22, 2013) at 3 ("4. By registering for electronic filing, an attorney consents to service by electronic means (pursuant to Fed. R. Civ. P. 5(b)(2)(E)) to the attorney s address on file with the Court, of all documents required to be served in the case whether or not they are filed with the Clerk (e.g. discovery documents)." ) (Emphasis added). See also Local Rule 1.1(e) (stating that the ECF Manual governs use of electronic filing). Although no precedent can be located stating that this local practice fully replaces the remaining (and very limited) service-by-hard-mail option, that Felsoci would delay transmission of his response to Plaintiffs additionally illustrates his desire not to timely resolve this case. 4

5 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 5 of 9 PAGEID #: 2887 Among his many objections to production, Felsoci claimed attorney-client privilege, yet failed to produce a privilege log indicating what documents were protected. None of Felsoci's objections have merit. ARGUMENT I. Felsoci's Boilerplate Objections Have No Merit. There is a "presumption that judges have 'a right to every man's evidence.'" C. Wright, et al., Fed. Prac. & Proc. Evid (1st ed. 2014). Exceptions and privileges are disfavored. Winning a protective order preventing discovery of any sort is extremely difficult. C. Wright, et al., Fed. Prac. & Proc. Civ (3d ed. 2014) (footnote omitted). Federal Rule of Civil Procedure 26(b)(1), states: "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense -- including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." "A party served with a request for inspection must serve a written response to that request." C. Wright, supra, Where attorney-client privilege is asserted, "indices of documents withheld on grounds of privilege" are required. Id. The failure to provide this log can constitute waiver of the attorney-client privilege. Id. "The purpose of Rule 34 is to make relevant and nonprivileged documents, electronically stored information, and objects in the possession of one party available to the other, thus eliminating strategic surprise and permitting the issues to be simplified and the trial to be expedited. The rule is to be liberally, rather than narrowly, construed. It appears to have been the most frequently used discovery device." C. Wright, supra, 2202 (footnotes omitted). Further, "a party is obliged to act at its own peril in objecting to a request for documents under Rule 34. If 5

6 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 6 of 9 PAGEID #: 2888 the court on motion by the party seeking inspection enters an order compelling discovery, the objecting party must pay the reasonable expenses incurred by its opponent in obtaining the court order..." Id. (footnote omitted). "Rule 34(b)(1)(A) says that the request 'must describe with reasonable particularity each item or category of items to be inspected.' This specification provision applies not only to 'documents,' but also to electronically stored information." C. Wright, supra, "The goal is that the designation be sufficient to apprise a person of ordinary intelligence what documents are required and that the court be able to ascertain whether the requested documents have been produced." Id. 2 Here, Plaintiffs' Rule 34 request describes with the requisite particularity the documents to be produced. Temporal limits are built in to each request. The relevant individuals are identified by their names. Subject matter is spelled out. Felsoci's boilerplate objections are untenable. Felsoci should be required to produce the documents and to provide a privilege log identifying privileged documents that it withholds. II. Felsoci's Attorney-Client Privilege Argument Has No Merit. The identity of a client is not protected by the attorney-client privilege. In United States v. Leventhal, 961 F.2d 936 (11th Cir. 1992), Robert Leventhal, an attorney in Florida, refused to disclose to the IRS the names of clients who had paid him over $10,000 in cash. Leventhal's 2 Plaintiffs offered to inspect all documents as prescribed by Felsoci. "[E]ven under the earlier version of the rule, when a motion was required, experience showed that most lawyers were cooperative and that most inspections were by informal agreement." Id (footnote omitted). "There is no reason why the request cannot simply call for inspection 'at a time and place convenient to' the party to whom it is directed, leaving it to that party to designate the time and place in his response." Id. 6

7 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 7 of 9 PAGEID #: 2889 clients had wished to remain anonymous, and Leventhal argued that the attorney-client privilege gave them that right. The court ruled that disclosing the clients' identities revealed only the existence of an attorney-client relationship, a simple factual matter that is not within the scope of the privilege. The Sixth Circuit followed Leventhal in United States v. Ritchie, 15 F.3d 592 (1994). See also In re Grand Jury Investigation, 723 F.2d 447 (6th Cir. 1983); In re Special Grand Jury, 676 F.2d 1005 (4th Cir. 1982). Thus, even assuming that the person or entity paying Felsoci's lawyers is a client of his lawyers, that person's or entity's identity is not privileged and protected. For this same reason, documents indicating the identity of a client (or non-client) are not protected by the attorney-client privilege. Documents in the possession or under the control of Felsoci indicating who is paying his lawyers -- even if that person is a client of his lawyers -- are not protected by the attorney-client privilege. They must be produced. Felsoci admits through his response that documents relating to the identity of the person paying his lawyers exist. Even if they are in possession of his lawyers, they must be produced if he has a legal right to access the documents. See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008) (collecting Sixth Circuit precedent and additional local authorities). Felsoci is therefore required to exercise this legal right to obtain the information described in this Request and to produce these documents. Id. Here, it is clear that Felsoci has legal right to access these documents. Felsoci's lawyers have a legal obligation under Ohio's Rules of Professional Responsibility to fully inform Felsoci that someone else is paying them. See Ohio Rule of Professional Responsibility 1.8(f) and Comments [11] & [12]. The Ohio Supreme Court's Board of Commissioners on Grievances and Discipline (the "Board") has made clear that lawyers in Ohio have a duty to disclose to their 7

8 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 8 of 9 PAGEID #: 2890 ostensible clients who actually is paying them. In Opinion (Oct. 12, 1990), at 2, the Board observed that DR (A) and (B) prohibit lawyers from "accept[ing] compensation for... legal services from one other than his client" without "the consent of [the] client after full disclosure." 3 Felsoci is therefore entitled to know who is paying his lawyers. He a lawful right to that information. Ohio's Board has also made clear that a client's file belongs to the client. Lawyers " must respond to a file request by a current or former client within appropriate ethical standards, no matter what the context of the request." Opinion , at 2 (April 9, 2010). "[O]ne of the steps a lawyer must take to protect a client s interest is the prompt delivery of all papers and property to which the client is entitled." Id. at 3. "[P]apers and property [belonging to the client] may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client s representation." Id. at 3. The Board in Opinion stated: Materials acquired or prepared for the purposes of representing the client and other materials that might prove beneficial to the client should be returned. These materials include, but are not limited to, all significant correspondence, investigatory documents and reports the client has paid for, filed or unfiled pleadings and briefs, and all materials supplied by the client. Id. at 7 (quoting Ohio Supreme Court, Board of Commissioners on Grievances & Discipline, Op (1998)). Consequently, Felsoci has a right to possession of any and all documents identifying the person or entity that is paying his lawyers. For this reason, these documents are under his 3 Ohio's Rules of Professional Responsibility state that Rule 1.8(f), which is the current version of this duty, is "virtually identical" to DR 5-107(A) & (B). 8

9 Case: 2:13-cv MHW-TPK Doc #: 130 Filed: 07/08/14 Page: 9 of 9 PAGEID #: 2891 control and must be produced under Rule 34. Any privileged information may be redacted. But this does not include the identity of the person or entity paying his lawyers. CONCLUSION For the foregoing reasons, Plaintiffs' Motion to Compel should be GRANTED. Respectfully submitted, /s/ Mark R. Brown Mark R. Brown, Trial Counsel 303 East Broad Street Columbus, OH (614) (614) (fax) mbrown@law.capital.edu Mark Kafantaris 625 City Park Avenue Columbus, Ohio (614) (614) (fax) mark@kafantaris.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that this Motion and incorporated Memorandum were filed using the Court's electronic filing system and will thereby be served on all parties to these proceedings. /s/ Mark R. Brown Mark R. Brown 9