IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

OHIO A. PHILIP RANDOLPH INSTITUTE, 

et al.

Plaintiffs, 

v. 

LARRY HOUSEHOLDER, Speaker of the 

Ohio House of Representatives, et al. 

Defendants.

Case No. 1:18-cv-357 

Judge Timothy S. Black 

Judge Karen Nelson Moore 

Judge Michael H. Watson 

Magistrate Judge Karen L. Litkovitz 

 

MOTION FOR LEAVE TO AMEND EXHIBIT LIST 

Plaintiffs Ohio A. Philip Randolph Institute, League of Women Voters of Ohio, the Ohio 

State University College Democrats, Northeast Ohio Young Black Democrats, Hamilton County 

Young Democrats, Linda Goldenhar, Douglas Burks, Sarah Inskeep, Cynthia Libster, Kathryn 

Deitsch, Luann Boothe, Mark John Griffiths, Lawrence Nadler, Chitra Walker, Tristan Rader, 

Ria Megnin, Andrew Harris, Aaron Dagres, Elizabeth Myer, Beth Hutton, Teresa Thobaben, and 

Constance Rubin (“Plaintiffs”) hereby request leave to submit an amended exhibit list and 

introduce exhibits not listed on Appendix L to the Final Pretrial Order (Dkt. No. 234). 

Pursuant to the Court’s directive at the February 11, 2019, Final Pretrial Conference, 

Plaintiffs have cut 195 exhibits from their initial trial exhibit list. On February 15, 2019, the date 

on which they were to provide their revised exhibit list, they provided notice to Defendants and 

Intervenors of their intent to add 18 additional trial exhibits. Fifteen of those documents were 

exhibits in the reopened deposition of Adam Kincaid that took place on January 31, 2019—

nearly two weeks after Plaintiffs submitted their initial trial exhibit list. Substantive and 

foundation testimony was taken regarding each of exhibits at the deposition, which only took 

place after multiple rounds of motions and an appeal to the Sixth Circuit. The other three 

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exhibits constitute stipulations and responses to requests for admission (“RFA”) that were 

marked purely for identification. 

Defendants and Intervenors were provided an opportunity to object to the admissibility of 

these 18 exhibits—and did so on February 21, 2019. Amongst those objections was the 

contention that the exhibits were improperly late disclosed. Plaintiffs provided their responses 

on this point, along with their responses to all of the outstanding objections, on the date set by 

the Court—February 25, 2019. Defendants and Intervenors continue to stand on these objections 

following the parties’ meet and confer. 

Plaintiffs accordingly bring this motion for leave to amend their trial exhibit list for good 

cause, as set forth below. A copy of the proposed Amended Appendix L to the Final Pretrial 

Order accompanies this motion. 

A. Procedural History: the Plaintiffs’ Compliance and the Defendants’ and 

Intervenors’ Noncompliance with the Court’s February 11, 2019, Directive 

Regarding Trial Exhibits and Evidentiary Objections. 

 On February 11, 2019, the Court issued an order directing: (1) Plaintiffs to provide an 

updated exhibit list to Defendants and Intervenors by February 15, 2019; (2) Defendants and 

Intervenors to review Plaintiffs’ revised exhibit list and respond with their objections, “including 

an explanation of the basis for each objection,” by February 21, 2019; (3) Plaintiffs to respond to 

Defendants’ and Intervenors’ objections by February 25, 2019; and (4) the parties to meet and 

confer in a good faith attempt to resolve any outstanding objections immediately thereafter. See

Pretrial Conference Tr. at 82:9-85:7; Notation Order (Feb. 20, 2019). 

 Pursuant to the Court’s order, Plaintiffs provided Defendants and Intervenors with a 

revised exhibit list on February 15, 2019, withdrawing 103 exhibits. In addition, on February 25, 

2019, Plaintiffs withdrew an additional 92 trial exhibits in an effort to further streamline the trial 

of this case. See Declaration of Jeremy Michael P. Goldstein in Support of Plaintiffs' Motion to 

Amend the Trial Exhibit List (“Goldstein Decl.”) ¶ 7. Thus, in total, Plaintiffs cut 195 exhibits 

from the Trial Exhibit List that appears as Appendix L in the Court’s Pretrial Order. 

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 As part of Plaintiffs’ disclosures on February 15, Plaintiffs added 18 exhibits to the 

Plaintiffs’ initial exhibit list. See Goldstein Decl. ¶ 3. Fifteen of those newly-added exhibits 

were exhibits to the January 31, 2019 deposition of Mr. Kincaid—which, due to litigation over 

Mr. Kincaid’s, the Republican National Committee’s (“RNC’s”), and the National Republican 

Congressional Committee’s (“NRCC’s”) invocation of First Amendment privilege, took place 

over a month after the close of discovery and nearly two weeks after Plaintiffs submitted their 

initial exhibit list. See Goldstein Decl. ¶ 4. The remaining three newly-added exhibits were a 

stipulation signed by Defendants in January 2018 and two of Defendants’ responses to Plaintiffs’ 

Requests for Admission, which Plaintiffs added for ease of reference during trial. See Goldstein 

Decl. ¶ 5. 

 Defendants and Intervenors jointly responded to Plaintiffs’ revised exhibit list on 

February 21, 2019, and provided bases for their authentication and foundation objections. 

However, contrary to the Court’s order to specify the nature and basis for each of Defendants’ 

and Intervenors’ remaining objections, they provided no basis for any of the 138 hearsay 

objections that remained. Notation Order, Feb. 20, 2019 (directing Defendants and Intervenors 

to “respond with their objections[—]including an explanation of the basis for each objection”) 

(emphasis added); Pretrial Conference Tr. at 78:4-7 (“I need you to get to work on your specific 

objections to the specific exhibits, not ‘I object based on authenticity, foundation and hearsay.’ 

Those objections are not acceptable.”) (emphasis added). On February 22, 2019, Plaintiffs 

requested that Defendants and Intervenors remedy their failure by February 24, 2019. 

Defendants and Intervenors refused, contending that the Court’s order did not require them to 

provide a basis for their 137 hearsay objections. 

 Nonetheless, on February 25, 2019, Plaintiffs provided responses to each of Defendants’ 

and Intervenors’ objections, including the 137 hearsay objections they failed to substantiate.1

 

1

 Plaintiffs contend that Defendants and Intervenors have waived all such hearsay objections. 

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 Thereafter, Plaintiffs and Defendants met, which resulted in the withdrawal of some 

foundation and authentication objections and the resolution of other outstanding issues. A 

substantial number of objections, however, remain at issue, the great bulk of which are hearsay 

objections as to which Defendants and Intervenors have still failed to provide the specific bases 

for their objections, as required by the Court (and even after Plaintiffs provided their own 

detailed responses as to why their hearsay objections are not well taken). 

B. Good Cause Exists For Plaintiffs to Amend Their Exhibit List to Add the 15 

Deposition Exhibits from the Reopened Kincaid Deposition. 

 Good cause exists for Plaintiffs to submit a revised exhibit list to the Court and introduce 

exhibits not listed in Appendix L of the Court’s Final Pretrial Order. 

1. The Kincaid Deposition Exhibits Could Not Be Placed Before the 

Witness Until January 31, 2019. 

 The 15 Kincaid deposition exhibits were not put before a witness until January 31—

weeks after Plaintiffs submitted their initial exhibit list to the Court. They could not have been 

put before Mr. Kincaid at the time of his initial December 4, 2018, deposition, given that they 

were not produced until January 4, 2019. 

 As the Court is well-aware, Adam Kincaid, the RNC, and the NRCC engaged in over six 

months of intense motions practice in their strident efforts to avoid compliance with Plaintiffs’ 

document subpoenas and deposition notices and subpoenas. Those efforts included numerous 

motions, a trip to the Sixth Circuit, and more than a dozen briefs. The Court repeatedly denied 

the relief sought by Kincaid, the RNC, and the NRCC, and the discovery dispute culminated with 

their production of previously withheld documents on January 4, 2019, and Mr. Kincaid sitting 

for a re-opened deposition on January 31, 2019. By the time of Mr. Kincaid’s re-opened 

deposition, Plaintiffs had submitted their initial exhibit list to the Court on January 18. 

 Ironically, in Defendants’ and Intervenors’ view, placing the documents before a witness 

in a deposition is a predicate to their admissibility, given that they have objected no less than 25 

times to the admissibility of various trial exhibits on the grounds that no deposition testimony 

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was taken regarding such exhibits. See Goldstein Decl. ¶ 10. Plaintiffs do not agree, but note 

that Defendants and Intervenors cannot have it both ways. 

2. The Re-Opened Kincaid Deposition Yielded Testimony Pertinent to

the Admissibility and Relevance of the 15 Exhibits. 

 When the exhibits were placed before Mr. Kincaid, Plaintiffs elicited useful testimony 

pertinent to their relevance and admissibility.

• P599 is a spreadsheet with historical election results and PVI scores for sixteen 

Congressional districts. Mr. Kincaid testified that he created P599 as part of his normal 

responsibility as NRCC Redistricting Coordinator. Goldstein Decl. Ex. Q (“Kincaid 

Dep.”) at 460:22-24, 516:2-10. See Goldstein Decl. ¶ 4; Goldstein Decl. Ex. B. 

• P600 is an image depicting the state of Ohio and its sixteen congressional districts. Mr. 

Kincaid testified that he received P600 as an attachment to an email from Heather Mann 

that was then forwarded to Thomas Hofeller and Mike Wild on the same day. Kincaid 

Dep. at 471:4-16, 477:13-20. See Goldstein Decl. ¶ 4; Goldstein Decl. Ex. C. 

• P601 is a screenshot of a Maptitude file that depicts an Ohio congressional district map. 

Mr. Kincaid testified that he received P601 as an attachment to an email from Ms. Mann, 

that was then forwarded to Mr. Hofeller and Mr. Wild on the same day. Kincaid Dep. at 

318:11-319:25, 481:3-7. See Goldstein Decl. ¶ 4; Goldstein Decl. Ex. D. 

• P602 is a spreadsheet with historical election results for a congressional district labelled 

“12 - Tiberi.” Mr. Kincaid testified that he created P602 as part of his normal 

responsibilities as NRCC Redistricting Coordinator. Kincaid Dep. at 527:21-528:13, 

532:11-7. See Goldstein Decl. ¶ 4; Goldstein Decl. Ex. E. 

• P603 is a spreadsheet with historical election results for a congressional district labelled 

“8 - Boehner.” Mr. Kincaid testified that he created P603 as part of his normal 

responsibilities as NRCC Redistricting Coordinator. Kincaid Dep at 533:11-15. See

Goldstein Decl. ¶ 4; Goldstein Decl. Ex. F. 

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• P604 is a spreadsheet with historical election results for congressional district labelled “4 

- Jordan.” Mr. Kincaid testified that he created P604 as part of his normal responsibilities 

as NRCC Redistricting Coordinator. Kincaid Dep. at 537:20-538:5. See Goldstein Decl. 

¶ 4; Goldstein Decl. Ex. G. 

• P605 through P613 are spreadsheets with historical election results for congressional 

districts. Mr. Kincaid testified that he created P605 through P613 as part of his normal 

responsibilities as NRCC Redistricting Coordinator. Kincaid Dep. at 541:17-542:8. Mr. 

Kincaid further testified that all of these documents (along with P602 through P604) were 

kept on the NRCC’s server and would be made available to members of congress if 

requested. See Kincaid Dep. at 536:16-537:9, 538:19-22. See Goldstein Decl. ¶ 4; 

Goldstein Decl. Exs. H-P. 

3. Defendants and Intervenors Will Suffer No Prejudice From the 

Addition of These Exhibits to Plaintiffs’ Exhibit List. 

 Counsel for Defendants and Intervenors attended Mr. Kincaid’s deposition, in person and 

telephonically, and thus had notice of his testimony concerning 15 of the 18 documents. See 

Kincaid Dep. at 251 (listing appearances). Moreover, Defendants and Intervenors already 

reviewed all 18 of the exhibits, provided their objections, and received Plaintiffs’ responses to 

those objections. Accordingly, Defendants and Intervenors are not unduly surprised by the 

inclusion of these documents, nor hampered from objecting to their admissibility at trial. 

C. Defendants’ and Intervenors’ Objection to the Inclusion of their Own 

Stipulations and RFA Responses Marked for Identification is Inexplicable. 

 At the February 26, 2019, meet and confer, Plaintiffs pointed out that Defendants and 

Intervenors had objected to the inclusion of their RFA responses and a stipulation signed by 

Defendants. They were offered a chance to rescind their “late identified” objection by Thursday, 

February 28, 2019. They did not do so. Their position is untenable. In particular, they cannot 

contend that they are prejudiced by the introduction into evidence of their own admissions and/or 

stipulations. 

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CONCLUSION 

For the reasons above, Plaintiffs request the Court grant them leave to amend their 

exhibit list, substituting the attached Amended Appendix L in place of Appendix L to the Final 

Pretrial Order. 

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Dated: March 2, 2019 Respectfully submitted, 

 /s/ Jeremy Goldstein d

Michael Baker 

Perrin Cooke 

Robert Day 

Peter Rechter 

Jacob Canter 

Covington & Burling LLP 

850 Tenth Street, NW 

Washington, DC 20001 

Tel.: (202) 662-6000 

mbaker@cov.com 

pcooke@cov.com 

rday@cov.com 

prechter@cov.com 

jcanter@cov.com 

Jeremy Goldstein 

Robert Fram 

Nitin Subhedar 

Covington & Burling LLP 

One Front Street 

San Francisco, CA 94111 

Tel.: (415) 591-6000 

rfram@cov.com 

nsubhedar@cov.com 

jgoldstein@cov.com 

T. Alora Thomas-Lundborg 

Dale E. Ho 

Theresa J. Lee 

Emily Rong Zhang 

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor 

New York, NY 10004 

Tel.: (212) 549-2500 

athomas@aclu.org 

dho@aclu.org 

tlee@aclu.org 

erzhang@aclu.org 

Freda J. Levenson (0045916) 

Elizabeth Bonham (0093733) 

David Carey (0088787) 

American Civil Liberties Union of Ohio Fdtn. 

4506 Chester Avenue 

Cleveland, OH 44103 

Tel.: (614) 586-1958 

Facsimile: (216) 472-2210 

flevenson@acluohio.org 

ebonham@acluohio.org 

dcarey@acluohio.org 

Paul Moke (0014099) 

Cooperating Attorney for ACLU of Ohio 

Wilmington College* 

1252 Pyle Center 

Wilmington, OH 45177 

Tel.: 937-725-7501 

paul.moke@gmail.com 

* Institutional affiliation for the purpose of 

identification only 

Attorneys for Plaintiffs 

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CERTIFICATE OF SERVICE 

 I hereby certify that on March 2, 2019, a true and correct copy of the foregoing was 

served via ECF to all counsel of record in the above-captioned case. 

/s/ Jeremy Goldstein d

 Jeremy Goldstein 

Attorney for Plaintiffs 

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