`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE SOUTHERN DISTRICT OF OHIO
` EASTERN DIVISION
`
`Libertarian Party of Ohio,
`et al.,
` :
`
`Plaintiffs, :
`
`v. : Case No. 2:13-cv-953
`
`Jon Husted, et al., :
` JUDGE MICHAEL H. WATSON
` Magistrate Judge Kemp
`Defendants. :
`
`
` OPINION AND ORDER
`
`This case, the background of which appears in many other
`orders of the Court and which will not be repeated here, is
`before the Court to resolve a number of pending discovery-related
`motions. The substantive issues raised in those motions are all
`moot; discovery is complete. This order addresses the issue of
`whether any discovery sanctions should be imposed.
`I. Unresolved Requests for Sanctions
`Plaintiffs requested sanctions under Rule 37(a)(5) in their
`motion to compel Gregory Felsoci, the intervenor defendant, to
`produce documents (Doc. 299); in a separate motion for sanctions
`which addresses that and other aspects of discovery (Doc. 300);
`in their second motion to compel Mr. Felsoci’s deposition (Doc.
`316); and in their renewed motion to compel production of
`documents from non-party Matt Borges (Doc. 326). Each motion
`raises the question of whether the party opposing discovery -
`primarily Mr. Felsoci - did so in a way which was substantially
`justified.
`
`A. The Rule 26(e) Issue
`The most comprehensive motion is Doc. 300. It summarizes
`various difficulties with discovery, all of which are addressed
`
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`on their merits in prior court orders, and concludes that Mr.
`Felsoci’s participation in this case was “political espionage”
`designed to thwart legitimate discovery and that his tactics were
`“of the ‘scorched earth’ variety.” Id. at 2-3. Plaintiffs
`detail how difficult it was for them to uncover the fact that
`Terry Casey, a Republican Party operative, was paying Mr.
`Felsoci’s legal fees in this case, and that money to do so was
`supplied directly by the Ohio Republican Party; how hard it was
`to compel Mr. Felsoci to sit for a deposition; how Mr. Felsoci’s
`lawyers refused to supplement discovery responses to show that
`Mr. Casey or the Ohio Republican Party had made additional
`payments toward Mr. Felsoci’s legal fees; and how Mr. Felsoci’s
`lawyers did not fulfill their professional obligations to Mr.
`Felsoci when they did not inform him of their joint
`representation of himself and Mr. Casey and the agreement Mr.
`Casey made to pay Mr. Felsoci’s legal fees - a failure which
`allowed Mr. Felsoci to deny any knowledge of who was paying his
`legal fees. The motion concludes by arguing that there was never
`any justification for Mr. Felsoci’s failure voluntarily to
`produce documents showing that the Ohio Republican Party had made
`additional payments in 2015 toward Mr. Felsoci’s legal fees -
`those documents are the subject of the motion to compel which is
`Doc. 299 - and it asks for sanctions including a default judgment
`against Mr. Felsoci on Count Seven of the complaint.
`In his opposing memorandum (which also opposes the request
`for sanctions made in Doc. 299), Mr. Felsoci points out that he
`did supply Plaintiffs with the supplemental documentation about
`payments of legal fees which are the subject of Doc. 299, and did
`so promptly after receiving a supplemental document request,
`something the Court suggested to Plaintiffs’ counsel during a
`telephone conference held with respect to that motion. He argues
`that he had no obligation to do so prior to that, even though the
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`invoices were requested by Plaintiffs earlier in the case,
`because when that request was made, these particular invoices did
`not exist. He contends that there is a split of authority about
`whether later-created documents must be produced in response to a
`document request when the earlier production was complete when
`made. The 20-page reply memorandum (Doc. 306), which reads like
`a treatise on the duty to supplement found in Rule 26(e),
`disputes that such a split of authority exists and contends that
`Mr. Felsoci’s argument about the materiality of the documents is
`so clearly incorrect that sanctions are appropriate.
`As Mr. Felsoci portrays it, the cases are split on the
`question of whether a party must supplement a prior document
`production with documents which are responsive to the request but
`which did not exist at the time the original production was made.
`He relies on, among other cases, Judge Litkovitz’ decision in
`Rhein v. Smyth Automotive, Inc., 2012 WL 3150953 (S.D. Ohio Aug.
`2, 2012), as supporting that thesis. There, one of the document
`requests asked for sales reports from January 1, 2005 to the
`present. Defendants produced all such reports through the date
`of their initial response but did not supplement that production
`as additional reports were created. The Court ordered only a
`portion of these new reports to be produced, reasoning that given
`“the strong policy favoring liberal discovery” and given that
`defendants themselves were relying on such reports which post-
`dated the original document production, the plaintiff was
`entitled to the supplemental documents to the extent they were
`relevant. The Court also held, however, that an open-ended
`document request could not force a responding party to produce
`wholly irrelevant documents, even if they were responsive,
`because such documents could not render an earlier response
`incomplete or incorrect when made, which is the trigger for the
`duty to supplement as set out in Rule 26(e). Mr. Felsoci also
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`cites to a case relied on in Rhein, MSC Software Corp. v. Altair
`Engineering, Inc., 2012 WL 1340445, *2 (E.D. Mich. Apr. 18,
`2012), which stated, although not in its direct holding, that
`“Rule 26(e) does not place a continuing burden on a party
`responding to a discovery request to supplement with new
`information.” Also, there is a statement in a less recent case,
`Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP,
`2006 WL 1295409, *2 (S.D.N.Y. May 10, 2006), that
`“[s]urprisingly, with the exception of an unpublished and
`uncitable decision of the United States Court of Appeals for the
`Sixth Circuit, I have been unable to find any precedents
`addressing whether documents created after the service of a Rule
`34 response need be produced in response thereto.” That court
`concluded that “[s]ubsequently created documents do not render a
`previously served document response incomplete as of the date of
`the response” and that even if they did, the rules did not
`specify how frequently responses to document requests had to be
`updated.
`Plaintiffs certainly have the stronger argument that these
`cases, read closely, do not necessarily suggest a different rule
`about the duty to supplement with after-created documents;
`rather, they allow room for parties to debate whether responsive
`but irrelevant documents must be disclosed in a supplemental
`production, or whether open-ended requests for documents may
`ultimately create an undue burden on the producing party which
`would excuse production. But this illustrates that the point is
`arguable. Certainly, the Kingsway decision provides a fair
`amount of support for Mr. Felsoci’s position. Were the Court
`called upon simply to decide the question of whether Mr. Felsoci
`had a duty to supplement where, as here, the after-created
`documents were few in number and directly relevant to Plaintiffs’
`claims, it would probably side with Plaintiffs. Plaintiffs have
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`the documents now, however, and the substantive issue is moot.
`Can the Court also say that Mr. Felsoci’s position lacked
`substantial justification in a way that merits sanctions? That
`is a close call, but there is just enough justification for his
`argument that it falls on the non-sanctionable side. Perhaps
`with more development of the case law, his position will become
`untenable and sanctionable, but the Court cannot make that
`determination here, even though Mr. Felsoci would have been
`better-advised to produce the documents either voluntarily or in
`response to Plaintiffs’ express request to supplement his earlier
`production. However, that spirit of cooperation has been absent
`in this case from the outset.
`B. The Second Felsoci Deposition
`The second motion to compel a deposition of Mr. Felsoci also
`contains a request for sanctions. By way of brief background,
`Mr. Felsoci was deposed once in this case, pursuant to a court
`order issued after he objected to being deposed at all, so when
`Plaintiffs requested a second deposition, leave of court was
`required under Fed.R.Civ.P. 30(a). The basis for the request was
`the production of documents showing that the Ohio Republican
`Party was paying Mr. Felsoci’s legal bills. Plaintiffs assert in
`their motion that Mr. Felsoci had no reasonable basis for
`refusing their request. They rely on this Court’s decision in
`Fresenius Medical Care Holdings, Inc. v. Roxane laboratories,
`Inc., 2007 WL 764302 (S.D. Ohio March 9, 2007) for the
`proposition that if important documents surface after the first
`deposition of a witness has been taken, a second deposition is
`routinely permitted. After a conference with the Court, Mr.
`Felsoci agreed to submit to a brief second deposition, but the
`parties were apparently unable to come to agreement as to the
`parameters of that deposition. The Court subsequently issued a
`brief order directing that the deposition go forward (Doc. 322).
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`It reserved ruling on the balance of the issues raised by the
`motion.
`In a lengthy opposing memorandum (Doc. 320), Mr. Felsoci
`offers a number of reasons why Plaintiffs’ request for a second
`deposition should have been denied. He focuses on, among other
`factors, the untimeliness of the request, and on the fact that
`the newly-produced documents came not from Mr. Felsoci but from
`Terry Casey. Mr. Felsoci also points out that it was not very
`likely that he would have much to contribute on the issue since
`he was, for a long time, unaware of who was paying his lawyers,
`and he had no direct knowledge of any arrangements between Terry
`Casey and the Ohio Republican Party to pay his fees. The Court,
`as noted, rejected these rationales and ordered the deposition to
`go forward. Having considered them, however, in the context of
`Plaintiffs’ request for sanctions, and keeping in mind that a
`second deposition of the same witness is presumptively improper,
`the Court finds no basis upon which to order sanctions.
`Conceptually, there is some difficulty with the notion that
`a party can be sanctioned for simply insisting that the opposing
`party comply with a rule of civil procedure. Rule 30(a)(2) sets
`forth four different situations where leave of court to take a
`deposition must be sought if the parties do not stipulate to the
`deposition. They include taking a deposition earlier than
`allowed by Rule 26(d), taking a deposition when ten witnesses
`have already been deposed by that party, taking the deposition of
`a person in prison, and taking a second deposition of the same
`witness. At least one court has held that sanctions cannot be
`imposed under this rule against a party who refuses to stipulate
`to a deposition and forces the requesting party to seek leave of
`court. See Ashby v. McKenna, 331 F.3d 1148, 1150 (10th Cir.
`2003)(holding that the prisoner plaintiff “was within his rights
`under Rule 30(a) in refusing to be deposed without court order.
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`His refusal cannot serve as a basis for sanction”). This Court
`need not go that far in its ruling, however, given that it was
`and is debatable how much Mr. Felsoci would have to add to the
`body of knowledge concerning the Ohio Republican Party’s
`agreement to pay his legal fees, especially once that fact was
`learned from other sources and Plaintiffs obtained copies of the
`documents showing the payments. Whether Mr. Felsoci knew about
`that arrangement from the outset was the subject of his prior
`testimony and deposition (he said he did not), and nothing in the
`documents refutes that assertion. Given the lack of a strong
`showing that this deposition was crucial to Plaintiffs’ claims,
`although the Court concluded, on balance, that a brief second
`deposition was warranted, Mr. Felsoci’s refusal to consent to the
`deposition when asked, thus forcing Plaintiffs to file the motion
`to compel, was not without some justification.
`C. The Matt Borges Subpoena
`The final request for sanctions comes in Plaintiffs’ motion
`to compel a non-party, Matt Borges, to produce documents. In
`their motion (Doc. 326), Plaintiffs argued that Mr. Borges’
`assertion that he had no documents responsive to a subpoena
`issued by Plaintiffs was demonstrably false. The documents which
`had been requested were documents evidencing payments from the
`Ohio Republican Party to the firm of Zeiger, Tigges & Little, who
`represent Mr. Felsoci and Mr. Casey in connection with this
`litigation. Plaintiffs obtained evidence, after Mr. Borges said
`he had no such documents and that any such documents dated before
`March 3, 2015 had been lost or destroyed, that a payment was made
`on March 28, 2015 (although that payment had nothing to do with
`this case). Mr. Borges responded that he did not construe the
`subpoena to cover unrelated payments to the Zeiger firm. He
`supplied the documents as part of his response. In reply,
`Plaintiffs argued that the request was broad enough to cover all
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`payments made by the Ohio Republican Party to the Zeiger firm,
`and that payments even in unrelated matters were relevant to the
`issues in this case.
`The production of the requested documents mooted the
`underlying issue. As to the request for sanctions, it appears to
`the Court that the failure to produce the documents in question
`was initially caused by a good faith disagreement, or
`misunderstanding, as to the scope of the subpoena. The need for
`the motion to have been filed was related, in part, to the time
`pressures of this litigation as opposed to the failure of Mr.
`Borges’ counsel to respond in good faith to Plaintiffs’ request
`for the documents once the additional payment came to light.
`This is not a situation which warrants sanctions.
`D. Additional Matters
`The Court did reserve a ruling on whether sanctions were
`appropriate in connection with its order granting a motion to
`compel Terry Casey to produce documents in response to a
`subpoena. That order (Doc. 334) pointed out a striking lack of
`cooperation, transparency, and good faith efforts to resolve
`discovery disputes which had permeated this litigation from the
`outset, and it warned the parties that further conduct of that
`nature would undoubtedly lead to sanctions. The record does not
`reflect any further discovery disputes - probably because
`discovery was substantially complete by that time - and the Court
`sees little benefit in revisiting the issue of sanctions at this
`stage of the case.
`The Court does add this cautionary note. The overall
`conduct of discovery in this case, especially on the part of Mr.
`Felsoci’s and Mr. Casey’s counsel, demonstrates a pattern of
`technical and begrudging responses and objections to discovery
`requests, which pattern was clearly designed to delay or obstruct
`the Plaintiffs’ ability to learn that the Ohio Republican Party
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`was involved in the effort to keep Libertarian Party candidates
`off the ballot. It would be difficult indeed to characterize
`what went on here as the construction, administration, or
`employment of the Rules of Civil Procedure by the parties “to
`secure the just, speedy, and inexpensive determination of every
`action and proceeding.” See Fed.R.Civ.P. 1. However, the
`addition of the term “parties” to Rule 1 is of recent vintage
`(December 1, 2015). Nevertheless, discovery in this case did not
`proceed consistently with the spirit of the prior version of Rule
`1 even if each of the positions taken by counsel found just
`enough support in the language of the rules or the case law to
`prevent the imposition of sanctions. Looking at the entire “body
`of work” in hindsight, it would probably have benefitted the
`parties and the interests of justice to have been less lenient
`with the parties (or non-parties, for that matter) at an early
`stage of the case simply in order to prevent the case from
`devolving into a series of bitter skirmishes about matters that,
`in the great majority of cases litigated in this Court, do not
`require the type of extensive and expensive motions practice
`which continually characterized this case. Should these
`particular attorneys or parties come before the Court in future
`cases, the history of their conduct here will strongly influence
`the Court’s approach to discovery, including sanctions, in order
`to insure that the goals of Rule 1 are met.
`II. Order
`Based upon the foregoing, all issues relating to any
`discovery motion addressed in this case, including but not
`limited to Docs. 299, 300, 316, and 326, are resolved.
`
`III. Motion to Reconsider
`In light of the age of this case, the Court notifies the
`parties that it is reducing the amount of time for filing a
`motion to reconsider with the District Judge.
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`Any party may, within seven 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. 14-01,
`pt. IV(C)(3)(a). The motion must specifically designate the
`order or part in question and the basis for any objection.
`Responses to objections are due seven 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 even if a motion for
`reconsideration has been filed unless it is stayed by either the
`Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
`
`
`
`
`/s/ Terence P. Kemp
`United States Magistrate Judge
`
`-10-