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. )

____________________________________)

No. 1:18-cv-00357-TSB-KNM-MHW

Judge Timothy S. Black

Judge Karen Nelson Moore

Judge Michael H. Watson

Magistrate Judge Karen L. Litkovitz

PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR EVIDENTIARY OBJECTIONS

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

ARGUMENT.................................................................................................................................. 1

I. DEFENDANTS’ AND INTERVENORS’ IMPROPER “IMPEACHMENT” 

EVIDENCE AND RELATED QUESTIONING SHOULD BE STRICKEN................ 1

A. Representative Marcia Fudge ......................................................................................... 1

B. Senator Nina Turner........................................................................................................ 3

C. Andre Washington .......................................................................................................... 4

D. Dr. Wendy Tam Cho....................................................................................................... 6

II. DEFENDANTS AND INTERVENORS CANNOT RELY ON HEARSAY TO 

BOLSTER THEIR CLAIM THAT THE CHALLENGED MAP WAS JUSTIFIED

BY BIPARTISANSHIP................................................................................................. 9

A. Kaptur-Kucinich Pairing............................................................................................... 10

B. Configuration of District 11.......................................................................................... 11

C. Configuration of District 3............................................................................................ 12

III. LACK OF FOUNDATION AND MISCHARACTERIZATION OF TESTIMONY

AS TO LACHES. ........................................................................................................ 12

IV. TESTIMONY OF DR. BRUNELL SHOULD BE EXCLUDED. ............................... 14

CONCLUSION............................................................................................................................. 19

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Plaintiffs respectfully submit this brief in support of their objections to Defendants’ and 

Intervenors’ evidence.

INTRODUCTION

“Rules of evidence are designed in the interest of fair trials.” United States v. 

Augenblick, 393 U.S. 348, 352 (1969). Defendants and Intervenors have flouted several 

provisions of the Rules of Evidence, including Federal Rule of Evidence 612 on refreshing 

witness recollection, Federal Rule of Evidence 613 on impeachment, and Federal Rules of 

Evidence 801 and 802 on hearsay testimony. Intervenors also failed to properly disclose expert 

witness testimony as required under Rule 26 of the Federal Rules of Civil Procedure. Allowing 

this evidence would be prejudicial to Plaintiffs, and it should be stricken by the Court. 

ARGUMENT

I. DEFENDANTS’ AND INTERVENORS’ IMPROPER “IMPEACHMENT” 

EVIDENCE AND RELATED QUESTIONING SHOULD BE STRICKEN.

A. Representative Marcia Fudge

Plaintiffs object to Intervenors’ attempts to “impeach” Representative Marcia Fudge’s 

testimony by use of irrelevant, inadmissible evidence for which no foundation was laid, and 

which was offered as an improper attempt to refresh her recollection. See Rush v. Ill. Cent. R.R. 

Co., 399 F.3d 705, 716 (6th Cir. 2005). In Rush, the Sixth Circuit explained that in order to use a 

writing to refresh a witness’s memory under Federal Rule of Evidence 612, the examining 

counsel must establish that: (1) the witness’s recollection is exhausted; and (2) the document 

would be of help in refreshing the witness’s memory. Id. Further, “it would be error for the trial 

court to admit into evidence testimony about a matter included in the writing if the witness had 

no recollection of the matter after viewing the writing.” Id. at 717 (quoting 4 Weinstein’s 

Federal Evidence § 612.03[4][a][iii]).

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Representative Fudge testified on direct examination that she was unaware in advance of 

how her home district, District 11, would be drawn under the new map in 2011. See Fudge, ECF 

No. 239 at 83:7–20. She further testified that she was surprised, and was not pleased at the time, 

by the map drawers’ decision to include portions of Summit County in her district. Id. at 83:21–

84:9. In a bizarre tangent, Intervenors responded by seeking to prove through Representative 

Fudge that George Forbes, a former Cleveland City Council president and Cleveland NAACP 

president, supported the shape of her district. See generally id. at 90:14–25. 

The positions of a different political leader were well outside the scope of Rep. Fudge’s 

testimony on direct. Indeed, Rep. Fudge testified that she was unaware of Mr. Forbes’ position –

and further, that no writing would refresh her recollection on something that she simply never 

knew. Id. at 91:20–92:3. Intervenors improperly offered a news article about Mr. Forbes 

anyway, which counsel advised the Court was being “used solely to refresh recollection,” as it 

was not an exhibit. Id. at 92:4–23. Intervenors subsequently sought to have Rep. Fudge adopt 

the hearsay statements contained in the article, which she had already confirmed that she lacked 

a foundation to do. See id. at 91:20–92:3. Upon review of the article, she confirmed that she had 

not read it, that her recollection was not refreshed by it, and that she was not familiar with the 

truth of the matters that it asserted other than by simply reading the article itself. Id. at 93:3–

94:15. This scenario is precisely what Rush describes as improper. 399 F.3d at 716–17.

A near-identical exchange occurred as to Senator Vernon Sykes, another prominent 

leader of the black community in northeast Ohio, whose purported opinions on District 11 were 

just as irrelevant and outside the scope of direct as were those of Mr. Forbes. See id. at 94:16–

99:12. Again confronted with an article she had not read, which purported to state facts with 

which she had no familiarity, Rep. Fudge confirmed that the article did not refresh her memory 

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and that her only knowledge of the subject came from reading the article during her testimony. 

Id. at 97:13–99:12.

All testimony based on these improper impeachment materials should be stricken for a 

laundry list of reasons. The documents were not listed as trial exhibits, were not authenticated, 

and are inadmissible hearsay – indeed, they are double hearsay to the extent the out-of-court 

statements in the articles repeat out-of-court statements of interviewees. See Fed. R. Evid. 901; 

Fed. R. Evid. 802. They did not contradict any part of Rep. Fudge’s testimony, and so were not 

properly offered for impeachment. No foundation was laid to show that she could discuss them; 

on the contrary, she confirmed that she could not. See supra; see also Fed. R. Evid. 602 (witness 

can only testify on personal knowledge). Nor were Intervenors able to establish that the writings 

could, or did, refresh her recollection. See supra; Rush, 399 F.3d at 716–17. Even had it been 

properly offered, any evidence of unrelated political figures’ opinions about District 11’s design 

is irrelevant and beyond the scope of direct. The entire exchange regarding Mr. Forbes’ and Sen. 

Sykes’ opinions, including Intervenors’ belated attempt to admit Exhibit I-137, should be 

stricken.

B. Senator Nina Turner

In the course of Senator Nina Turner’s testimony, Intervenors similarly attempted to 

introduce inadmissible evidence under the guise of refreshing the witness’s recollection. 

Specifically, Intervenors offered Sen. Turner their Exhibit I-96 to help her recall whether she had 

“received proposals from Democratic map drawers which incorporated recommendations from 

Ohio House and Senate Democrats, the Ohio Legislative Black Caucus and congressional 

Democrats in Ohio,” Turner, ECF No. 240 at 27:17–20. Sen. Turner had testified that “I don’t 

know . . . I mean, that might be possible.” Id. at 27:21–23. 

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Presented with the document, Sen. Turner verified that the email address listed on the 

document matched hers, but repeatedly testified that she did not recall receiving such an email, 

and that the writing did not refresh her recollection. Id. at 28:9–29:11, 30:2–13. Her testimony 

on the matter should therefore be stricken. See Rush, 399 F.3d at 716–17. 

Despite having represented that the document was being offered merely to refresh 

recollection, Intervenors next sought to move it into evidence in order to impeach. Plaintiffs 

objected. Turner, ECF No. 240 at 31:11–15. The document is not proper impeachment material, 

as it does not contradict Sen. Turner’s statement that it “might be possible” that she received 

such a proposal, but simply did not recall. See supra. The document itself is also hearsay. See 

generally Fed. R. Evid. 802. She did not adopt or verify any of the statements in the document

or authenticate it. As Intervenors failed to lay a proper foundation, the document is inadmissible 

and Intervenors’ exchange with Senator Turner about it should be stricken. See Fed. R. 

Evid. 602. 

Moreover, even if Intervenors had properly introduced the document, it would constitute 

extrinsic impeachment evidence on a collateral matter—whether Sen. Turner had received word 

of alternative map proposals that were never adopted—and so would be properly excluded. See, 

e.g., United States v. Quinn, 230 F.3d 862, 867 (6th Cir. 2000).

C. Andre Washington

On direct examination, Mr. Washington testified that the reauthorization of Section 5 of 

the Voting Rights Act was an issue of particular importance to him. See Washington, ECF 

No. 239 at 56:23–57:2. As the Court is surely aware, Section 5 of the Voting Rights Act was 

effectively rendered obsolete by the Supreme Court in 2013. See Shelby Cty. v. Holder, 570 U.S. 

529, 557 (2013) (striking down the coverage formula of Section 4(b) of the Voting Rights Act, 

effectively rendering Section 5 meaningless until “Congress may draft another formula based on 

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current conditions”). Prior to that decision, the Act was last reauthorized in 2006, just prior to its 

scheduled sunset. Id. at 529; see also Territory of Alaska v. Am. Can Co., 358 U.S. 224, 226–27

(1959) (courts may take judicial notice of legislative history); Ohio Coal Ass’n v. Perez, 

No. 2:14-cv-2646, 2017 WL 4900165, at *7 (S.D. Ohio Feb. 27, 2017) (same). Mr. Washington 

went on to testify that his prior congressional representative, Pat Tiberi, did not support the 

movement to “re-establish” Section 5. ECF No. 239 at 58:20–25.

In a deeply confusing exchange with Intervenors’ counsel on cross-examination, Mr. 

Washington was asked several times if he was aware that “every Republican member of 

Congress from Ohio voted to renew the Voting Rights Act[.]” Id. at 73:4–19. In the context of 

Mr. Washington’s prior testimony, counsel’s question conflated the 2006 renewal of the entire 

Voting Rights Act with Mr. Washington’s desire for an effective reestablishment of Section 5

post-Shelby County. Mr. Washington attempted several times to clarify that he was aware of 

votes to reauthorize the Voting Rights Act prior to Shelby County— “[p]rior to them getting rid 

of the Section 5,” id. at 73:15—and that “what I’m concerned about is Section 5, reauthorizing 

Section 5,” id. at 74:2–6. When the timing of the renewal that Intervenors’ counsel was 

referencing became clear, Mr. Washington explicitly indicated that the renewal counsel 

referenced was not what he was talking about and sought clarification. Id. at 73:20-74:6. 

Pushing through Mr. Washington’s attempt to disentangle the matter, counsel continued to 

conflate the two concepts, ultimately representing that “Representative Tiberi voted to renew the 

Voting Rights Act and Section 5 of the Voting Rights Act the last time it was on the floor of the 

House of Representatives[,]” id. at 74:15–17, and asking Mr. Washington to agree that if that 

was true, then “he was representing you with your same – the same position you had,” id. at 

75:13–15. Mr. Washington ultimately agreed to what, in context, he understood to be a counterCase: 1:18-cv-00357-TSB-KNM-MHW Doc #: 255 Filed: 04/02/19 Page: 7 of 23 PAGEID #: 22615
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factual scenario: that if Rep. Tiberi had voted to reauthorize Section 5 post-Shelby County, then 

Mr. Washington would be in agreement with Rep. Tiberi’s hypothetical position. See id. at 

75:7–16. On redirect, Mr. Washington again testified that the reauthorization of Section 5 was 

his concern, not simply the VRA’s renewal. Id. at 76:6–9.

Intervenors’ questions to Mr. Washington “lifted the prior testimony out of context and 

were misleading and confusing.” United States v. Poindexter, 942 F.2d 354, 358 (6th Cir. 1991); 

see also Salters v. Burt, No. 17-2426, 2018 WL 2341746, at *4 (6th Cir. May 23, 2018) 

(confusing questions objectionable at court’s discretion). Such a tactic is an inappropriate 

avenue of impeachment, and Plaintiffs accordingly object. The entire exchange, ECF No. 239 at 

73:7–75:25, should be stricken.

D. Dr. Wendy Tam Cho

At trial, Intervenors sought to admit two documents from a prior case in Pennsylvania as 

impeachment exhibits following their cross-examination of Dr. Cho: an expert report authored 

by Dr. Cho (I-130) and a transcript of her trial testimony (I-131).1

 Cho, ECF No. 243 at 121:12–

122:14. Intervenors cited Federal Rule of Evidence 613(b) as the basis for the admission of 

these documents. Id. at 122:4–7. This Rule states: “Extrinsic evidence of a witness’s prior 

inconsistent statement is admissible only if the witness is given an opportunity to explain or deny 

the statement and an adverse party is given an opportunity to examine the witness about it, or if 

justice so requires.” Fed. R. Evid. 613(b). Critically, this rule applies to a witness’s prior 

inconsistent statement; absent an inconsistency, the rule is inapplicable. The hearsay exception 

 1 Neither document is cited in Defendants’ and Intervenors’ Joint Proposed Findings of Facts. Even if 

they no longer seek to have these documents admitted into evidence, and no longer wish to rely on them, 

these same arguments apply to the trial testimony elicited with respect to both documents. ECF No. 243 

at 27:25-38:7, 41:11-45:25. That trial testimony, and in particular Intervenors’ counsel reading into the 

record of these documents from the Pennsylvania case, should be stricken. In addition to being irrelevant, 

it consists of inadmissible hearsay and impermissible extrinsic evidence of statements that are not 

inconsistent with trial testimony.

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for such statements is similarly limited to a declarant-witness’s prior statement that “is 

inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, 

hearing, or other proceeding or in a deposition.” Fed. R. Evid. 801(d)(1)(A) (emphasis added). 

Again, absent an inconsistency, the exception is inapplicable and the statement is inadmissible 

hearsay.

Neither of the documents Intervenors sought to admit as impeachment evidence against 

Dr. Cho contain statements inconsistent with Dr. Cho’s trial testimony in this case. Her expert 

report from Pennsylvania criticizes an expert in that case, Dr. Pegden, for assuming that the 

partisan effect he calculated going from 2% population deviation to 1% population would mirror 

that of going from 1% to 0%. Dr. Cho, as she stated in her expert report in Pennsylvania and in 

her testimony in this case, found that argument “logically flawed.” Cho, ECF No. 243 at 33:1–5. 

In this case, Dr. Cho relied on a “completely different argument” for why her population 

deviation constraint was reasonable, explaining that “any map that is within 1% on population 

deviation can be brought to population equality at the census block level without compromising 

any of the other traditional redistricting principles.” Trial Ex. P087, Cho Initial Report at 9; see 

also Cho, ECF No. 243 at 33:9–14. Dr. Cho did not extrapolate what would happen from 1% to 

zero based on what happened from 2% to 1% analysis. Rather, she explained that other 

redistricting principles would not need to be additionally compromised when going down to 1%: 

no more counties or cities need be split as one could simply choose to split the ones that are 

already split. ECF No. 242 at 165:18–167:4. And the partisan composition of the 0% deviation 

buddy maps would have a “slim to none” chance of being different from the max 1% deviation 

map: for a maximum deviation of 3500 people to affect the partisan composition, they would all 

have to be eligible voters voting for the same party in a district where the elections are extremely 

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close. Id. at 167:5–168:12. Dr. Cho’s criticism of a “completely different” argument made by 

another expert in prior case is not inconsistent with her testimony in this case. Her expert report 

from that prior case is therefore not admissible as extrinsic evidence of a prior inconsistent 

statement, and indeed is inadmissible hearsay.

The same is true for Dr. Cho’s trial testimony from the Pennsylvania case: none of it on 

Dr. Pegden’s population deviation assumption is inconsistent with her testimony in this case. 

Intervenors’ counsel quoted from the Pennsylvania transcript, noting that Dr. Cho said that Dr. 

Pegden “didn’t preserve equal population at the same level that the current map preserves it at,” 

and then quoting Dr. Cho’s rhetorical question, “do you get some partisan effect from that . . . ?” 

ECF No. 243 at 30:1–17. When asked if that was her testimony in the Pennsylvania case, Dr. 

Cho agreed that it was and noted “if you read the rest of it you’ll see that I was explaining 

exactly what I explained to you just now, his argument was two percent to one percent, it’s the 

same as one percent to zero, and that’s just not true.” Id. at 30:18–22. Again, just as was the 

case with Dr. Cho’s Pennsylvania expert report, her Pennsylvania trial testimony on population 

equality was not inconsistent with Dr. Cho’s testimony in this case, because she was critiquing a 

“logically flawed” argument made by Dr. Pegden in the Pennsylvania case and Dr. Cho made a 

“completely different” argument about population equality in this case.

Intervenors’ counsel also sought to impeach Dr. Cho with her testimony from the 

Pennsylvania case on incumbency protection. See id. at 41:11–45:25. The asserted

inconsistency was that Dr. Cho in her Pennsylvania testimony was “inferring that incumbency 

protection was one of the goals of the Pennsylvania legislature because there was only one 

pairing” of incumbents, id. at 37:8–10, which was the minimum number possible given the loss 

of one seat in redistricting, while Dr. Cho “here refused to make the same inference simply 

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because the state paired three sets of incumbents when only two were required,” id. at 37:20–22. 

As an initial matter, even if this were an accurate characterization of Dr. Cho’s opinions in each 

case, they would not be inconsistent because of the acknowledged difference in facts. As Dr. 

Cho explained, there is no inconsistency because the facts were simply different in the two states 

and in the two cases. This is even clearer when taking into account “the whole picture,” 

including the legislative history statements from Ohio expressly disclaiming incumbency 

protection, as well as the fact that the enacted map in Ohio unnecessarily paired incumbents. Id.

at 37:23–38:7. In Pennsylvania, by contrast, “the plaintiffs asserted that incumbency protection 

was at play” and the legislature enacted a map with “the minimum number of pairings that they 

could possibly have done.” Id. at 45:4–8. 

Simply put, the facts of the two cases are inconsistent, not Dr. Cho’s statements. Dr. 

Cho’s expert report and trial testimony from the prior case are therefore not admissible as 

impeachment evidence. 

II. DEFENDANTS AND INTERVENORS CANNOT RELY ON HEARSAY TO 

BOLSTER THEIR CLAIM THAT THE CHALLENGED MAP WAS 

JUSTIFIED BY BIPARTISANSHIP.

To portray Republicans’ dogged pursuit of maximum partisan advantage as a benign 

bipartisan compromise, Defendants and Intervenors rely on inadmissible hearsay evidence 

throughout their joint trial brief and proposed findings of facts to assert that alterations to 

proposed districts made by Republican map drawers reflected the views and preferences of 

Democrats in Ohio and Congress. But as the Court well knows, Federal Rule of Evidence 802 

prohibits the admission into evidence of out-of-court statements to prove the truth of the matter 

asserted. Fed. R. Evid. 802, 801(c). For this very reason, at trial, counsel for Defendants 

expressly disclaimed his reliance on testimony regarding out-of-court statements by Democratic 

lawmakers about the 2011 redistricting process for their truth. ECF No. 243 at 161:20–24. To 

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the extent it is constructed on inadmissible hearsay, Defendants’ and Intervenors’ post-hoc

rationale for Defendants’ adoption of an unconstitutional partisan gerrymander must be rejected.

A. Kaptur-Kucinich Pairing

Defendants and Intervenors assure the Court that Ohio Democrats chose to pair 

Representatives Marcy Kaptur and Dennis Kucinich in H.B. 319 and later advocated for drawing 

the district to favor Representative Kaptur. See, e.g., Defs.-Ints.’ Post-Trial Brief, ECF No. 252 

(“D/I Br.”) at 8 (“[The shape of congressional district 9] was a choice by Democratic officials to 

favor one incumbent over another.”); id. at 28 (“District 9 was carefully worked at the request of 

Democratic legislators to favor Kaptur over Kucinich in the ensuing and inevitable race between 

incumbents.”). But, as Defendants and Intervenors acknowledge, these assurances are based on 

statements purportedly made by Democrats to the former Chairman of the Ohio Republican 

Party, Bob Bennett, and subsequently communicated to Republican map drawer Ray DiRossi. 

See, e.g., id. at 8–9 (citing DiRossi, ECF No. 243 at 159:3–6, 160:5–19, 159:10–12, 161:15–16, 

162:19–163:13, 162:17–20; Judy, ECF No. at 246 77:24–78:3)). Such statements cannot be 

relied upon to establish that Democrats did in fact support pairing Representatives Kaptur and 

Kucinich and drawing a district to favor Representative Kaptur. 

Moreover, Defendants and Intervenors’ support for these assertions is vague and 

unverifiable. They initially point to trial testimony in which Representative Kaptur merely 

acknowledges that portions of Ohio saw declining population in the 2010 census. See id. at 8 

(citing Kaptur, ECF No. 249 at 78:18–23, 79:4–11). From there, they rely on testimony from 

Mr. DiRossi to posit that unnamed “Democratic members” communicated their preference for 

the pairing to Mr. Bennett. See id.; see also DiRossi, ECF No. 243 at 159:3–12 (testifying over a 

standing hearsay objection that “there was a lot . . . of conversations that were happening, [and] 

it was clear that the Democrats wanted Dennis Kucinich to be the one that was out”). Such 

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conclusory testimony regarding purported out-of-court statements by unnamed Democrats 

cannot be offered as evidence of the actual preferences of Ohio Democrats.

B. Configuration of District 11

Similarly, Defendants and Intervenors rely on inadmissible hearsay to assert that 

Representative Marcia Fudge “herself reviewed and approved” the configuration of the redrawn 

11th Congressional District. D/I Br. at 23. Again, they point to trial testimony from Republican 

map drawers Ray DiRossi and Troy Judy recounting reports of Representative Fudge’s supposed 

preferences regarding the shape of her district, which had been conveyed to Mr. Bennett.2

 Id.

(citing DiRossi, ECF No. 243 at 171:19–172:17, 173:2–10; Judy, ECF No. 246 at 74:3–7, 76:1–

15). But Defendants and Intervenors cannot offer this hearsay-within-hearsay as affirmative 

evidence that Representative Fudge in fact reviewed these proposals and conveyed her preferred 

alternative to the Republican map drawers. Moreover, the vague, out-of-court statements are 

flatly contradicted by Representative Fudge herself, who testified, under oath, that she did not 

review drafts of the proposed map before H.B. 319 was introduced and “[c]ertainly . . . would 

not have chosen [the configuration included in H.B. 319], and . . . was not happy about” the 

shape of the 11th District.3 See Pls.’ Findings of Fact (“Pls.’ PFOF”), ECF No. 251-1 at ¶¶ 301–

02. 

Relatedly, Defendants and Intervenors assert that three prominent Ohio Democrats—

former Congressman Louis Stokes, George Forbes, and Vernon Sykes—all supported the 

configuration of District 11. D/I Br. at 23 (citing Fudge, ECF No. 239 at 91:20–94:15, 95:16–

 2 Defendants and Intervenors separately rely on portions of the deposition of Matt Szollosi in support of 

this assertion. D/I Br. at 23. Curiously, however, the cited testimony addresses neither the composition 

of the 11th District nor Representative Fudge’s purported views on the subject. See Szollosi Dep., ECF 

No. 230-47 at 60:5-9, 61:24-62:15.

3 Indeed, DiRossi acknowledged at trial that he did not know, “as a fact,” that Representative Fudge 

preferred the shape of her district. He testified that he took Mr. Bennett’s “word for it.” DiRossi, ECF 

No. 243 at 172:9-13.

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97:25, and 98:2–7; Judy, ECF No. 246 at 70:12–16, 71:5–11, 72:4–8). But each of these 

contentions are supported solely by newspaper accounts shown to Representative Fudge in 

Intervenors’ failed attempt to refresh her recollection at trial and by purported out-of-court 

conversations with these individuals. See supra. This testimony may not be offered as evidence 

that Messrs. Stokes, Forbes, and Sykes actually supported the configuration of District 11.

C. Configuration of District 3

Defendants and Intervenors also claim that District 3 “was drawn with extensive input 

from Joyce Beatty” and reflected her preferences. D/I Br. at 11, 24; see also Defs.-Ints.’ 

Findings of Fact, ECF No. 253 (“DIFOF”) ¶ 140 (“Congresswoman Beatty also requested that 

certain property of Ohio State University, her former employer, be included in the district.”). 

But this, too, is based on out-of-court statements purportedly made by Representative Beatty to 

Mr. Bennett that cannot be cited as affirmative evidence of Representative Beatty’s preferences. 

See DiRossi, ECF No. 243 at 178:7–12. 

These and other second- and third-hand accounts of the views purportedly expressed by 

Democrats stand as quintessential examples of the sort of unreliable, unsubstantiated evidence 

that the hearsay rule is designed to exclude. As Defendants and Intervenors themselves 

conceded, such hearsay may not be admitted for its truth. ECF No. 243 at 161:20–24. 

Accordingly, the Court should exclude this testimony and disregard Defendants’ and 

Intervenors’ unsupported assertions regarding Democrats’ true preferences in connection with 

the 2011 redistricting process.

III. LACK OF FOUNDATION AND MISCHARACTERIZATION OF 

TESTIMONY AS TO LACHES.

Defendants and Intervenors rely in part upon the trial testimony of Jennifer Miller in 

support of their claim of laches; specifically, they point to Ms. Miller’s testimony as to the 

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ultimate fate of certain documents that other witnesses testified were obtained by the Ohio 

Campaign for Accountable Redistricting, but were not in LWVO’s possession to be produced in 

this litigation. See DIFOF ¶¶ 1507–08. Plaintiffs object to this testimony for lack of foundation, 

speculation, and for mischaracterizing prior testimony.

Defendants’ failure to lay foundation was clear from the outset of their line of 

questioning. Ms. Miller testified that she was unaware of Ann Henkener’s prior testimony as to 

the documents, see Miller, ECF No. 239 at 181:25–182:3, and that aside from reading off the 

page of Ms. Henkener’s testimony as counsel presented it to her, she was unaware of how many 

documents were obtained, what sizes the boxes were, or where the documents were kept. Id. at 

182:15–186:3. She had already testified that she had begun her employment with LWVO on 

May 1, 2018, which explains her lack of personal knowledge of events that occurred years 

earlier. See id. at 132:12–25. Defendants argue that Ms. Miller’s testimony is evidence that 

documents “were shredded as late as the end of 2017,” but this testimony is based on what Ms. 

Miller clarified was a guess. See id. at 183:18 (testifying that LWVO “might have” shredded the 

documents). Indeed, any reliance on Ms. Miller’s testimony on this subject is inappropriate, 

given Defendants’ failure to lay a foundation.

Defendants also rely upon Ms. Miller’s testimony regarding how Ms. Henkener selected 

boxes to retain. See DIFOF ¶¶ 1507–08. Yet this testimony arose from Defendants’ questions 

that both mischaracterized prior deposition testimony and called for speculation, specifically in 

asking Ms. Miller whether it is LWVO’s “authority to decide what is substantive or appropriate 

to produce” in discovery or suggesting that “the other boxes may not have been helpful to your 

case.” Miller, ECF No. 239 at 185:19–187:1. Ms. Henkener, a LWVO volunteer, testified that 

the boxes in question were hardly a treasure trove of unique and irreplaceable information. 

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Many of the documents were “redundant,” such that “[t]here were any number of boxes but not a 

lot of different information. You’d get the same e-mail over and over and over again, and then 

you’d get the response to the e-mail plus the e-mail over and over again. So it was – it was a lot 

of paper to go through with less information than one would have thought that many boxes of 

information could have provided.” Henkener, ECF No. 230-18 at 11:23–12:14.

Jim Slagle, the sole employee of OCAR who later served as a Common Pleas judge, see 

Slagle Dep,, ECF No. 230-45 at 16:2–3, 18:9–18, testified similarly, and clarified that OCAR—a 

nonpartisan organization, despite Defendants’ unfounded insinuations to the contrary—was 

highly transparent about its selection of documents. Judge Slagle personally completed the 

public records requests, reviewed each one of the documents, and wrote OCAR’s report based on 

the most significant and relevant ones. Id. at 22:21–23:8, 25:22–26:15. He further testified that 

OCAR reported the sources of those records in its reports. Id. at 18:19–19:10, 20:8–22:20. 

Moreover, “the whole purpose [of] the report was to accurately document . . . what we had done 

in terms of trying to obtain records, what we had obtained, and to try to discuss some of the more 

significant records to help shine a light on the whole process.” Id. at 22:9–20. Defendants’

questioning of Ms. Miller at trial presupposes that Judge Slagle and Ms. Henkener selected only 

those documents favorable to Plaintiffs’ case; that presumption has no basis in the record.

Accordingly, Ms. Miller’s trial testimony as to OCAR’s documents should be stricken in 

its entirety for lack of foundation and mischaracterization of prior testimony.

IV. TESTIMONY OF DR. BRUNELL SHOULD BE EXCLUDED.

Plaintiffs renew their motion to exclude the testimony of Dr. Brunell as an expert under 

Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), pursuant to which expert testimony must be 

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qualified, reliable, and relevant to be admissible.4

 Plaintiffs further move to strike portions of 

Dr. Brunell’s testimony pursuant to Federal Rules of Civil Procedure 37(c)(1), since it was not 

properly disclosed as required by Federal Rules of Civil Procedure 26(a)(2). 

Expert opinions must be both be disclosed and when disclosed must meet the rigor 

required by Daubert. Federal Rules of Civil Procedure 26(a) govern the rules of disclosure and 

require “a complete statement of all opinions the witness will express and the basis and reasons

for them.” Fed. R. Civ. Pro 26(a)(2)(B)(i); see also R.C. Olmstead, Inc., v. CU Interface, LLC, 

606 F.3d 262, 270 (6th Cir. 2010). The disclosure requirement requires more than cursory 

conclusions of the expert’s findings. Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 

504, 520–21 (6th Cir. 2014) (“As we stated in R.C. Olmstead, ‘[e]xpert reports must include 

‘how’ and ‘why’ the expert reached a particular result, not merely the expert’s conclusory 

opinions.’” (quoting R.C. Olmstead, 606 F.3d at 271)). “[A]n expert opinion must ‘set forth 

facts’ and, in doing so, outline a line of reasoning arising from a logical foundation.” R.C. 

Olmstead, Inc., 606 F.3d at 270–71 (citing Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d 

655, 664 (6th Cir. 2005)). Experts must also disclose the underlying data considered by the 

expert. In re Commercial Money Ctr., Inc., Equip. Lease Litig., 248 F.R.D. 532, 537 (N.D. Ohio 

2008) (“Materials reviewed or generated by an expert must be disclosed, ‘regardless of whether 

the expert[ ] actually rel[ies] on the material as a basis for [his or her] opinions.’”) (citations 

omitted) (alterations in the original). 

 4 Plaintiffs rely on the argument presented in their Daubert motion for why all of Dr. Brunell’s opinions 

should be excluded as unreliable and/or accorded little weight. ECF No. 153. Plaintiffs, therefore, focus 

on why Dr. Brunell’s testimony should also be excluded because he failed to disclose them in his expert 

report.

Plaintiffs also rely on the arguments presented in their Daubert motions seeking to exclude the testimony 

of Dr. Thornton, ECF No. 155, and of Dr. Hood, ECF No. 150, for why their opinions should be excluded 

as unreliable and/or accorded little weight. 

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If a party fails to make sufficient disclosure, Rule 37(c)(1) mandates that “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.” Fed. R. Civ. Pro 37(c)(1); U.S. 

ex rel. Tenn. Valley Auth. v. 1.72 Acres of Land In Tenn., 821 F.3d 742, 752 (6th Cir. 2016) 

(“Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a), that is, 

it ‘mandates that a trial court punish a party for discovery violations in connection with Rule 26 

unless the violation was harmless or is substantially justified.’”); Vance, by & Through 

Hammons v. United States, 182 F.3d 920 (Table), 1999 WL 455435, at *6 (6th Cir. June 25, 

1999) (“After Rule 37(c)(1)’s passage in 1993, the test is very simple: the sanction is mandatory 

unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake 

was harmless.”). “[T]he burden is on the potentially sanctioned party to show harmlessness.” 

U.S. ex rel. Tenn. Valley Auth., 821 F.3d at 752. 

Dr. Brunell’s testimony included many previously undisclosed opinions, which could 

have easily been disclosed prior to his testimony. The majority of his undisclosed opinions 

centered on the Voting Rights Act.5

 On October 5, 2018, Plaintiffs disclosed five experts with 

accompanying expert reports, including Dr. Lisa Handley and Dr. Wendy Tam Cho. As part of 

their reports, they disclosed their prior writing and opinions in this case. Dr. Handley performed 

a racial bloc voting analysis, also known as a district-specific, functional analysis. Dr. Handley 

clearly established that a 45% black voting age population (“BVAP”) district in the vicinity of 

District 11—both before and after redistricting—offers Black voters a realistic opportunity to 

 5 While the omission of Dr. Brunell’s testimony concerning the Voting Rights Act was the most flagrant 

omission of opinions that should have been disclosed pursuant to Rule 26, Dr. Brunell also failed to 

disclose certain opinions and documents related to his critique of Dr. David Niven. As with Dr. Brunell’s 

work as it relates to the Voting Rights Act, Dr. Brunell was asked if he intended to render any other 

opinions of Dr. Niven’s work and gave sworn testimony that he did not. Brunell Dep., ECF No. 153-3

at 184:15–22.

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elect their candidates of choice. Trial Ex. P254. Dr. Cho then used Dr. Handley’s analysis in 

constructing her simulated maps. Dr. Cho disclosed that her analysis was based on Dr. 

Handley’s work and the general location of the black opportunity district both in her report and 

in her deposition. Trial Ex. P87 at 8 (“Consistent with the recommendation from Dr. Lisa 

Handley that a 45% BVAP is sufficient to satisfy the Voting Rights Act in the vicinity of District 

11 in the challenged plan, I have integrated this 45% BVAP requirement in the drawing of my 

maps.”); Ex. A, Cho Dep. at 180:18–186:25 (discussing the fact that her minority opportunity 

district was “in the Cleveland area” and “Cuyahoga County”). Dr. Cho was asked nearly 

identical questions at trial as in her deposition and her testimony was the same in both instances. 

Compare Ex. A, Cho Dep. at 180:18–186:25, with Cho, ECF No. 242 at 158:20–160:3. She 

testified at trial as she had in her deposition that her maps drew a district with at least 45% 

BVAP in the Cleveland area and that Cleveland was in Cuyahoga County. Cho, ECF No. 242 at 

158:20–160:3 (discussing the fact that her minority opportunity district was “in the Cleveland 

area”); Cho, ECF No. 243 at 72:9–75:2 (same). Counsel surely was not surprised by the answers 

it received during cross at trial from Dr. Cho, as her answers had been the same in her 

deposition. It is, therefore, disingenuous to state that her testimony at trial was “new” or “newly 

disclosed.” 

Prior to his testimony, Dr. Brunell disclosed a very limited opinion on the Voting Rights 

Act as it relates to this case. First, he argued that the distribution of Dr. Cho’s BVAP in her 

simulated maps was problematic. Trial Ex. I-60, Brunell Report at 3–4. Second, he noted Dr. 

Handley had recommended a different BVAP in a case involving the school district in the 

Euclid, Ohio. Id. at 18. These two, extremely limited in scope opinions were the sum total of his 

opinions related to Voting Rights Act analysis disclosed in his report. He was deposed on 

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December 14, 2018, after Dr. Cho had submitted her rebuttal report and after the depositions of 

Dr. Cho and Dr. Handley (which occurred on December 7, 2018 and December 12, 2018), and 

he was asked repeatedly if he intended to supplement any of his opinions from his report and he 

gave sworn testimony that he did not. Brunell Dep., ECF No. 153-3 at 26:11–18; 81:21–82:17; 

183:3–185:3.

At trial and for the first time, Dr. Brunell gave new testimony completely outside of the 

scope of his disclosed opinions. After 8:00 p.m. on Monday, March 11, 2019, Plaintiffs received

notice of a new “demonstrative” that Intervenors intended to use with Dr. Brunell and the 

underlying data accompanying the demonstrative.6

 See Ex. B, E-mail from K. McKnight. The 

next day, Dr. Brunell’s second day on the stand, he rendered opinions concerning what may or 

may not have been the opinions of political scientists in 2011 about the requirements of the 

Voting Rights Act concerning the ability to draw a minority opportunity district in Cuyahoga 

County. See generally Brunell, ECF No. 247 at 10:16–35:25. At trial, Intervenors claimed that 

Dr. Brunell’s previously undisclosed opinion was the result of newly disclosed evidence from 

Plaintiffs’ expert Dr. Wendy Tam Cho, see, e.g., id. at 17:18–18:12, however, the record is 

clearly to the contrary. As discussed above, Dr. Cho’s testimony at trial were entirely consistent 

with her expert report and deposition testimony. 

Here, the omission was not harmless and caused prejudice to the Plaintiffs. The lack of 

notice of Dr. Brunell’s opinion, both in his report and at his deposition, rendered it impossible 

for Plaintiffs’ experts to rebut his opinion. Dr. Brunell was the second to last witness in 

 6 The time of the disclosure is noteworthy not only because it postdates all of the disclosure deadlines, 

including for expert witness reports (November 12, 2018), exhibits (January 18, 2019), and 

demonstrative exhibits (February 22, 2018), but also because the Court had instructed Dr. Brunell not to 

talk to counsel on Monday night since he was already sworn witness and was in the middle of his 

testimony. Brunell, ECF No. 246 at 222:20-21 (“As to the witness, you’re not to discuss your testimony 

with anyone during the break.”). 

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Defendants’ and Intervenors’ case. Further, his new opinions were not disclosed prior to his 

taking the stand on Monday, March 11, 2019 and were only disclosed after he had already begun 

testifying at trial. While Plaintiffs were able to have Mr. Cooper return to Ohio to offer rebuttal 

testimony, Plaintiffs were only able to do so because they had notice as of Friday March 8, 2019

of the testimony of Mr. DiRossi. By the time Dr. Brunell offered his new and previously 

undisclosed testimony, it was impossible for Plaintiffs to recall their expert witnesses who could 

most aptly rebut his testimony, Dr. Handley and Dr. Cho. Even more importantly, had Dr. 

Brunell’s Voting Rights Act opinions been properly disclosed as part of his rebuttal expert report 

on November 12, 2018, Dr. Handley could have written a rebuttal report to properly address his 

criticisms of her work and Dr. Cho’s rebuttal report could have addressed his criticisms. Given 

the lack of disclosure of Dr. Brunell’s opinion as required by Rule 26, it should be stricken from 

the record as a Rule 37 sanction. See U.S. ex rel. Tenn. Valley Auth., 821 F.3d at 751 (upholding 

a Rule 37 sanction since the expert report was not “a complete statement of all opinions the 

witness will express and the basis and reasons for them” (quoting Fed. R. Civ. P. 26(a)(2)(B)(i)).

CONCLUSION

For the foregoing reasons, Plaintiffs move that the aforementioned testimony and exhibits

be stricken from the record.

April 2, 2019 Respectfully submitted,

T. Alora Thomas-Lundborg

Theresa J. Lee

Emily Rong Zhang

Dale E. Ho

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor

New York, NY 10004 

Tel.: (212) 549-2500

/s/ Freda J. Levenson, trial attorney

Freda J. Levenson (0045916)

Elizabeth Bonham (0093733)

American Civil Liberties Union of Ohio Fdtn.

4506 Chester Avenue

Cleveland, OH 44103

Tel.: (216) 472-2220

Facsimile: (216) 472-2210

flevenson@acluohio.org

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athomas@aclu.org

tlee@aclu.org

erzhang@aclu.org

dho@aclu.org

Robert Fram

Nitin Subhedar

Jeremy Goldstein

Covington & Burling LLP

One Front Street

San Francisco, CA 94111

Tel.: (415) 591-6000

rfram@cov.com

nsubhedar@cov.com

jgoldstein@cov.com

ebonham@acluohio.org

David Carey (0088787)

American Civil Liberties Union of Ohio Fdtn.

1108 City Park Avenue

Columbus, OH 43206

Tel.: (614) 586-1972

dcarey@acluohio.org

Michael Baker

Perrin Cooke

Peter J. Rechter

Robert S. Day

Jacob Canter

Isaac Wood

Covington & Burling LLP

850 Tenth Street, NW

Washington, DC 20001

Tel.: (202) 662-6000 

mbaker@cov.com

pcooke@cov.com

prechter@cov.com

rday@cov.com

jcanter@cov.com

iwood@cov.com

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CERTIFICATE OF SERVICE

I, Freda J. Levenson, hereby certify that the foregoing document was served upon all 

counsel of record in this case via ECF. 

/s/ Freda J. Levenson

Counsel for Plaintiffs

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