Case: 1:12-cv SJD Doc #: 69 Filed: 02/28/14 Page: 1 of 11 PAGEID #: 697

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1 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 1 of 11 PAGEID # 697 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OHIO WESTERN DIVISION FAIR ELECTIONS OHIO, et al., Plaintiffs, v. JON HUSTED, in his official capacity as Secretary of State of Ohio, et al., Defendants. Case No. 112-cv-797 Chief Judge Susan J. Dlott EMERGENCY MOTION TO EXCLUDE OF DEFENDANTS SECRETARY OF STATE JON HUSTED AND ATTORNEY GENERAL MIKE DEWINE AND MEMORANDUM IN SUPPORT Pursuant to Federal Rule of Civil Procedure 37(c)(1), Defendants Secretary of State Jon Husted and Attorney General Mike DeWine respectfully request an order excluding two new expert reports untimely disclosed by Plaintiffs four months after the deadline set forth by this Court. Further, to protect the Court s case schedule, which currently requires the filing of dispositive motions on or before March 17, 2014, Defendants respectfully request that the Court consider this motion on an expedited basis. Defendants conferred with Plaintiffs counsel as required by Local Rule 37.1, but the parties are unable to reach a resolution on these issues. Respectfully submitted, MICHAEL DEWINE Ohio Attorney General /s/ Holly W. Wallinger HOLLY W. WALLINGER ( ) RYAN L. RICHARDSON ( ) SARAH E. PIERCE ( ) ERIN BUTCHER-LYDEN ( ) Assistant Attorneys General

2 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 2 of 11 PAGEID # 698 Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio Tel (614) Fax (614) holly.wallinger@ohioattorneygeneral.gov ryan.richardson@ohioattorneygeneral.gov sarah.pierce@ohioattorneygeneral.gov erin.butcher-lyden@ohioattorneygeneral.gov Counsel for Defendants Secretary of State Jon Husted and Attorney General Mike DeWine

3 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 3 of 11 PAGEID # 699 MEMORANDUM IN SUPPORT I. INTRODUCTION Pursuant to Federal Civil Procedure Rule 37(c)(1), Defendants Secretary of State Jon Husted and Attorney General Mike DeWine ( Defendants ) respectfully request an order from this Court excluding two new expert reports untimely disclosed by Plaintiffs Fair Elections Ohio, CURE-Ohio, and The Amos Project ( Plaintiffs ). On February 20, 2014, a mere seventeen hours before the deposition of their expert, Dr. Mark Salling, Plaintiffs presented two new, previously undisclosed reports. Now, Dr. Salling offers new opinions that differ fundamentally from opinions provided in his original reports. These new opinions come four months after the deadline this Court set for disclosure of Plaintiffs expert reports, five weeks after disclosure of Defendants rebuttal expert report, just over three weeks before the dispositive motion deadline, and just over one week before the final close of all discovery. Where, as here, a party fails to disclose information as required by Rule 26(a), the party is not allowed to use that information... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c)(1). The test for exclusion is simple the sanction is mandatory unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake was harmless. Vance v. United States, 182 F.3d 920, No (6th Cir. 1999) (unpublished). Because Plaintiffs cannot justify the untimely disclosure of Dr. Salling s new opinions, this Court should exclude them under the provisions of Rule 37(c)(1). To protect the Court s case schedule, which requires the filing of dispositive motions on or before March 17, 2014, Defendants respectfully request that the Court consider this motion on an expedited basis. 1

4 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 4 of 11 PAGEID # 700 II. DISCUSSION A. Dr. Salling s new reports differ fundamentally from the original reports. Plaintiffs originally provided two reports under Dr. Salling s signature on October 30, 2013 Analysis of the Number of Incarcerated Registered Voters ( Original Incarcerated Report ) and Analysis of the Proximity of Jails to Hospitals in Ohio ( Original Proximity Report ). (Exhs. A and B, attached.) Each report purported to be a complete statement of all opinions and the basis and reasons for them[.] (Id., cover letters accompanying each report.) The Original Incarcerated Report claimed to calculate[] the number of jailed persons, in nine Ohio counties, who were registered to vote and had not voted by absentee ballot, but could not exercise their voting rights during their confinement the three days before the election on November 6, (Exh. A, page 2.) The Original Proximity Report mapped the geographic distributions of certain Ohio hospitals and jails, and its express purpose was to assess how close the jails are to hospitals. (Exh. B, page 2.) Four months later, on February 20, 2014, Plaintiffs disclosed two new supplemental reports from Dr. Salling. (Exh. C, Feb. 20, from Ngozi Ndulue; Exh. D, Second Incarcerated Report ; and Exh. E, Second Proximity Report, attached.) These new reports differ in significant respects from the original reports, adding to and fundamentally altering the scope of Dr. Salling s expert opinions. For example In the Original Incarcerated Report, Dr. Salling expressly stated that he did not undertak[e] a full analysis of the possible disparate racial impact of the inability of registered jail inmates to vote[.] (Exh. A, page 6.) In the Second Incarcerated Report, by contrast, Dr. Salling now reaches the conclusion that denial of voting opportunity for inmates is likely to have a disparate impact on African American voters. (Exh. D, page 4, footnote omitted.) 2

5 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 5 of 11 PAGEID # 701 The Original Incarcerated Report attempts to estimate the statewide number of individuals who were in jails and could not vote during the weekend prior to the 2012 election based on a simple extrapolation using the relative portion of the state s 2010 adult population. (Exh. A, pages 2, 6, respectively.) The Second Incarcerated Report offers a completely new method of estimating the statewide total of individuals incarcerated during the weekend prior to the November 2012 Election. (Exh. D, page 1.) The Original Proximity Report purports only to depict certain jails and hospitals in the state of Ohio and calculates the average distance between the jails and the hospitals. The Second Proximity Report, by contrast, claims to address the relative burden on boards of elections to travel to jails and to hospitals in order to acquire election ballots[.] (Exh. E, pages 4-5.) The Second Proximity Report also provides a new map and three new graphical depictions of data related to this relative burden. Moreover, Dr. Salling testified that part of the motivation in offering new opinions was to respond to the report of Defendants rebuttal expert, Dr. Mockabee. At his deposition, Dr. Salling stated that because Dr. Mockabee had questioned the use of population numbers in the Original Incarceration Report, Dr. Salling came up with a new approach. So subsequently with the [Mockabee] report questioning that method of using the population numbers, this thought about returning to that issue and that question about a different methodology, and decided to try it and came up with the results that we did that I did. (Exh. F, Transcript Excerpt, Dr. Salling Depo., page 253.) Certainly, these new reports do not supplement the original reports they supplant the original reports with new and modified opinions. 3

6 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 6 of 11 PAGEID # 702 B. Plaintiffs violation of this Court s Preliminary Pretrial Order and the Federal Rules of Civil Procedure requires sanctions. Plaintiffs disclosure of Dr. Salling s new reports under the circumstances presented here constitutes a blatant violation of this Court s Preliminary Pretrial Order and the Rules of Civil Procedure. Under this Court s scheduling order (doc. 62), Plaintiffs expert disclosure deadline was October 30, 2013, at which time Plaintiffs were required to disclose the identity of any expert witness and a written report containing a complete statement of all opinions the witness will express and the basis and reasons for them[.] Fed.R.Civ.P. 26(a)(2)(B)(i). On October 30, 2013, Plaintiffs disclosed Dr. Salling s original reports. (Exh. G, Oct. 30, from Ngozi Ndulue.) Those reports were accompanied by cover letters stating that the reports contained a complete statement of all opinions and the basis and reasons for them[.] (Exhs. A and B, cover letter to each report.) Over four months later on February 20, the afternoon preceding Dr. Salling s rescheduled deposition Plaintiffs counsel ed to Defendants counsel the two new reports. (Exh. C, Feb. 20, from Ngozi Ndulue.) Plaintiffs presented these new reports without conferring with Defendants or providing any notice that new reports would be forthcoming. Nor did Plaintiffs seek leave of the Court to produce these untimely reports. Nothing in the Court s Preliminary Pretrial Order permits Plaintiffs untimely disclosure. Moreover, Plaintiffs new expert opinions fail to comply with Federal Civil Procedure Rule 26(a)(2)(B), a failure that demands sanctions under Rule 37(c)(1) If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. The burden to prove harmlessness is on the potentially sanctioned party. Roberts ex rel. Johnson v. Glen of 4

7 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 7 of 11 PAGEID # 703 Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (quoting Vance v. United States, 182 F.3d 920, No (6th Cir. 1999) (unpublished) (internal quotation marks omitted)). To establish harmlessness, that party must show both honest mistake and sufficient knowledge on the part of the other party. Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003) (quoting Vance, 182 F.3d at *5) (citing Fed.R.Civ.P. 37(c)(1) advisory committee note)). Plaintiffs can establish neither honest mistake nor knowledge on the part of the Defendants and, as a result, the new reports must be excluded. First, Plaintiffs should have been well aware of the deadline for expert disclosure, as evidenced by the Court s clear order and their multiple requests for extension of the deadline. 1 Plaintiffs should have been equally aware of their obligation to disclose a complete statement of all opinions being offered by Dr. Salling in the original report, as reflected by the express representation that Dr. Salling provided in the cover letters attached to the original reports. (See Exhs. A and B, cover letter to each report.) Significantly, Dr. Salling admitted that he had almost all of the information on which his new reports depended as early as the summer of 2013, and certainly by mid-september 2013, well before he disclosed his original reports. (Exh. F, Dr. Salling Depo., page 254.) But, as he testified, they ran out of time and [weren t] able to take it any further. (Id.) In addition, Dr. Salling testified that he did not rely on any new data to form his new opinion 1 Plaintiffs original expert disclosure deadline was June 1, (Doc. 49, Preliminary Pretrial Order.) The Court s order specifically designated the disclosure deadline to include providing the disclosed expert s report. Plaintiffs moved to modify the Preliminary Pretrial Order, and this Court granted that motion, extending Plaintiffs expert disclosure deadline to September 30, (Doc. 60.) Plaintiffs moved again to extend the expert disclosure deadline, and this Court granted that motion, extending Plaintiffs expert disclosure deadline to October 30, (Doc. 62.) 5

8 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 8 of 11 PAGEID # 704 regarding disparate impact. Rather, he relied on information he had at the time of forming his original opinions. (Exh. F, Dr. Salling Depo., pages ) This confession falls particularly short of excusing delay here, where Plaintiffs have had more than a year in which to conduct discovery and prepare their reports. Nonetheless, Plaintiffs waited until four months after the deadline for submitting their reports to offer new and fundamentally different reports at approximately 330 p.m. on the afternoon before Dr. Salling s rescheduled Friday, February 21, 2014 deposition (and one business day before Defendants expert s deposition). This timing cannot be accidental. Dr. Salling admitted that he had intended to have these new reports completed prior to his original deposition date, February 5, When that deposition was postponed due to weather, however, he further delayed completing the reports at Plaintiffs counsel s direction. (Exh. F, Dr. Salling Depo., pages ) No honest mistake occurred; by Dr. Salling s own admission, the timing was deliberate. Second, Defendants had no prior knowledge that a second round of new opinions was going to be produced. Despite the fact that no later than January 2014 Plaintiffs counsel and Dr. Salling discussed the preparation of new analyses and reports, Plaintiffs never informed Defendants that any new analyses would be forthcoming. Nor did they provide any information regarding the nature or substance of the new opinions that were produced. Defendants had no reason to suspect that new opinions might be produced, even when Plaintiffs provided updated responses from their ongoing subpoena requests to certain Ohio jails and boards of elections. On January 10, 2014, Plaintiffs counsel sent Defendants counsel data from Euclid City Jails. (Exh. H, Jan. 10, from Ngozi Ndulue.) 6

9 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 9 of 11 PAGEID # 705 Notably, that did not include any indication that, at that time, Dr. Salling was formulating new opinions. Defendants retained a rebuttal expert who evaluated and responded to Dr. Salling s original conclusions, and Defendants timely produced the rebuttal expert report on January 13, (Exh. I, Jan. 13, to Plaintiffs counsel with expert report of Dr. Stephen T. Mockabee attached.) Counsel for Defendants engaged in scheduling discussions with Plaintiffs counsel, and by February 6, 2014, the parties had reached agreement on the dates of deposition Dr. Salling on February 21, 2014, and Dr. Mockabee on February 24, (Exh. J, Feb. 6, to Plaintiffs counsel, attached.) All scheduling discussions contemplated that the depositions would focus on the conclusions offered by the respective experts in their original reports. No indication was given that new conclusions would be offered by Dr. Salling, and therefore no preparations were made by Defendants counsel to probe any new conclusions at Dr. Salling s deposition, or to offer rebuttal testimony by either Dr. Mockabee or another expert. C. Delaying the Case Schedule is not a proper remedy for a Rule 26 violation. Finally, that Defendants are prejudiced by the untimely disclosure of Plaintiffs expert s new opinions is beyond dispute. Because Plaintiffs counsel neglected to disclose the new reports until after Defendants had produced their rebuttal report, Defendants have had no opportunity to provide rebuttal expert reports on the new opinions. Because Plaintiffs did not disclose the new report until hours before Dr. Salling s deposition, Defendants were deprived of the benefit of carefully evaluating and fully deposing Dr. Salling regarding the new opinions. And because Plaintiffs did not produce their report until approximately a week 7

10 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 10 of 11 PAGEID # 706 prior to the close of all discovery, their untimely disclosure threatens to disrupt the entire case schedule and further delay resolution of this matter. If the Court permits Plaintiffs to go forward with these new reports, Defendants must be permitted to engage in another full round of expert review. More time will be necessary to ensure that Defendants can retain an expert 2 to review and consider the new opinions; depose Dr. Salling on the new reports; and present their expert for deposition. The current case schedule cannot accommodate additional expert discovery, as the fact discovery period ends February 28, 2014, and the dispositive motion deadline is just two weeks later, on March 17, 2014, with briefing complete by April 21. Defendants strongly oppose any modification of the current trial date July 21, 2014 as the State of Ohio must prepare for a statewide election in November 2014, and the issues presented in this litigation should be resolved well before that election takes place. Defendants have a reasonable concern about the effect of these new reports on the current case schedule. A state s interest in ensuring a smooth election cautions against the disruption that extending the case schedule would cause. As this Court has noted, the planning and implementation of election procedures including any changes to the already heavy work at the board of elections level occurs many months in advance of any election day. (Order, Doc. 30, pages 11, ) Moving the trial date any closer to the November 2014 election increases the risk of disorder and uncertainty. 2 Defendants are not certain that its current expert, Dr. Stephen T. Mockabee, will be able to opine on the new reports. First, Dr. Mockabee will have to review and consider the opinions before reaching that determination. If not, the State will have to find a new expert, which will require even more time. 8

11 Case 112-cv SJD Doc # 69 Filed 02/28/14 Page 11 of 11 PAGEID # 707 III. CONCLUSION For the foregoing reasons, Defendants Secretary of State Jon Husted and Attorney General Mike DeWine respectfully request an order from this Court excluding the untimely disclosed reports of Plaintiffs expert, Dr. Mark Salling. Respectfully submitted, MICHAEL DEWINE Ohio Attorney General /s/ Holly W. Wallinger HOLLY W. WALLINGER ( ) RYAN L. RICHARDSON ( ) SARAH E. PIERCE ( ) ERIN BUTCHER-LYDEN ( ) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio Tel (614) Fax (614) holly.wallinger@ohioattorneygeneral.gov ryan.richardson@ohioattorneygeneral.gov sarah.pierce@ohioattorneygeneral.gov erin.butcher-lyden@ohioattorneygeneral.gov Counsel for Defendants Secretary of State Jon Husted and Attorney General Mike DeWine CERTIFICATE OF SERVICE I certify that a copy of the foregoing Emergency Motion to Exclude of Defendants Ohio Secretary of State Jon Husted and Ohio Attorney General Mike DeWine and Memorandum in Support was filed electronically on February 28, Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. /s/ Holly W. Wallinger HOLLY W. WALLINGER ( ) 9