IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

____________________________________

)

OHIO A. PHILIP RANDOLPH )

INSTITUTE, et. al )

)

Plaintiffs, )

)

v. )

)

RYAN SMITH, 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

MEMORANDUM IN OPPOSITION TO THE OHIO ATTORNEY GENERAL’S AND E. 

MARK BRADEN’S MOTION TO STAY THE COURT’S DECEMBER 15, 2018 ORDER 

PENDING APPEAL, OR IN THE ALTERNATIVE A MOTION FOR PROTECTIVE 

ORDER

Though characterized as being (at least in part) a “motion to stay,” Mr. Braden has 

effectively conceded that no stay is in order. He concedes that his deposition can proceed with 

the documents as long as the protective order is modified. In a nutshell, this is a motion seeking 

a modification of the protective order. No such modification is warranted here, as the existing 

(and carefully negotiated) Protective Order fully protects Mr. Braden’s interest in this dispute. 

Plaintiffs’ Opposition to Mr. Braden’s motion can be succinctly stated in six points.

1. Mr. Braden’s Suggestion that He Will Prevail on Appeal is Incorrect.

The Court issued a reasoned opinion on the merits of this dispute and found that neither 

the attorney-client privilege nor the work-product doctrine protect these factual documents from 

production. Mr. Braden continues to insist that the Plaintiffs seek attorney communications or 

mental impressions. But this is not correct, as the Plaintiffs solely request draft maps, data, and 

spreadsheets attached to the communications. See Upjohn Co. v. United States, 449 U.S. 383, 
2

395-96 (1981) (“[T]he privilege only extends to communications and not to facts. A fact is one 

thing and a communication concerning that fact is an entirely different thing”) (emphasis in 

original) (internal quotation mark omitted). Mr. Braden has provided no evidence that these 

factual documents were prepared because of litigation. See United States v. Roxworthy, 457 F.3d 

590, 593 (6th Cir. 2006) (“[D]ocuments prepared in the ordinary course of business . . . or for 

other nonlitigation purposes, are not covered by the work product privilege”).

2. A Stay is Inconsistent with the Case’s Expedited Schedule.

Mr. Braden’s deposition is scheduled for tomorrow, Monday December 17, 2018, at 

10:30 AM. Discovery in this case is set to end two days later, on Wednesday December 19, 

2018. Plaintiffs are prepared to review the factual documents relevant to this dispute this 

afternoon and proceed with the deposition. Further delay regarding the production of these 

documents raises the need of seeking to depose Mr. Braden a second time (and indeed after the 

discovery cut-off).

3. Mr. Braden Effectively Concedes that the Documents Can be Provided to Counsel 

and that the Deposition Can Proceed with Them.

Mr. Braden’s motion requests a modification of the protective order if the Court denies 

the motion to stay. This is an admission that a motion to stay is not necessary, and that the 

deposition can proceed with the documents. As described more fully below, the existing 

protective order is wholly adequate, and no modification is appropriate.

4. The Existing Protective Order is Wholly Adequate.

Plaintiffs do not object to designating the documents under the protective order as 

confidential pending an appeal. But no further designation is required. In fact, the existing 

Protective Order already achieves this level of security for documents. In particular, the 

Protective Order provides that
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All Confidential Information disclosed pursuant to this Stipulation 

and Protective Order shall be used for the sole purpose of 

preparing for or conducting this litigation, including, but not 

limited to, investigation, consultation, discovery, depositions, 

expert reports, trial preparation, motions, trial, appeal, settlement, 

mediation, monitoring (if ordered by the Court), or uses incidental 

to the proceedings in the case.

See Stipulation and Protective Order, ECF No. 57 at 5. The Protective Order was carefully 

negotiated between the parties -- with counsel from the Attorney General’s Office participating -

- to provide sufficient protection for confidential information while also ensuring that both 

parties have adequate means to pursue their respective litigation ends. An eleventh hour 

modification of the Protective Order upends these carefully considered terms and undermines 

Plaintiffs’ means of effectively reviewing Mr. Braden’s factual documents. 

5. The Attorneys’ Eyes Only Restriction is Not Appropriate in this Case.

Mr. Braden’s modifications to the Protective Order include a burdensome provision that 

designates all documents produced relevant to the Court’s motion to compel as “attorneys’ eyes 

only.” Mr. Braden intends this phrase to mean that documents “may only be shared with 

attorneys representing the Parties to this case or consulting or testifying experts, so long as those 

experts agree to be bound by this protective order.” See Motion to Stay, ECF No. 122 at 6

(modification two). This restriction is not appropriate.

The parties already negotiated who can review confidential information under the 

original Protective Order. Notably, the original Protective Order does not include an “attorneys’

eyes only” restriction. Though “attorneys’ eyes only” restriction are common in such orders, the 

parties did not negotiate such a restriction into the Protective Order here.

6. Mr. Braden’s Attempt to Inject a Poison Pill Should be Rejected.

Mr. Braden’s modifications to the Protective Order also include an obligation on the part 

of the Plaintiffs to destroy any work product regarding these documents. See Motion to Stay,
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ECF No. 122 at 6-7 (modifications three and four). This modification is impractical and 

prejudicial. If an appeal moves forward, it may take a substantial amount of time, during which 

Plaintiffs will conduct a significant amount of pretrial and trial work. It is untenable to force 

Plaintiffs to parse and then delete all of the work product created during this time period 

concerning these forty-three factual documents. Even worse, this obligation awards Mr. Braden 

improper over-claim of the attorney-client and work-product protections by imposing an onerous 

burden on Plaintiffs’ counsel merely because they asserted their legal rights to discover these 

materials.1

*********************

For the foregoing reasons, Plaintiffs request that the Court require that Mr. Braden 

produce the forty-three documents described in the Court’s December 15, 2018 order.

Dated December 16, 2018 /s/ Robert Fram

Michael Baker

Perrin Cooke

Robert Day

Peter Rechter

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

Robert Fram

Jeremy Goldstein

Nitin Subhedar

Alexia Romero

Covington & Burling LLP

One Front Street

San Francisco, CA 94111

Tel.: (415) 591-6000

rfram@cov.com

nsubhedar@cov.com

jgoldstein@cov.com

aromero@cov.com

 1 Plaintiffs note that this objection is to the destruction of our work-product only. Plaintiffs will 

return and/or destroy any documents that are determined to be privileged and not discuss them in 

our filings.
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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 Movants
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CERTIFICATE OF SERVICE

I, Jeremy Michael P. Goldstein, hereby do certify that a copy of the foregoing 

Memorandum of Law was served on all counsel of record via the Court’s CM/ECF system.

/s/ Jeremy Goldstein

Jeremy Michael P. Goldstein

Counsel for Movants