UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

Deborah S. Hunt 

Clerk

100 EAST FIFTH STREET, ROOM 540 

POTTER STEWART U.S. COURTHOUSE 

CINCINNATI, OHIO 45202-3988 

Tel. (513) 564-7000 

www.ca6.uscourts.gov

 Filed: January 18, 2019 

Mr. Phillip Michael Gordon 

Mr. Shawn Toomey Sheehy 

Mr. Jason Brett Torchinsky 

Holtzman Vogel Josefiak Torchinsky 

45 N. Hill Drive, Suite 100 

Warrenton, VA 20186 

Mr. Dale Edwin Ho 

Ms. Theresa J. Lee 

Ms. Tiffany Alora Thomas 

Ms. Emily Rong Zhang 

ACLU, Reproductive Freedom Project 

125 Broad Street, 18th Floor 

New York, NY 10004 

Ms. Nicole Michelle Koppitch 

Office of the Attorney General 

30 E. Broad Street, 16th Floor 

Columbus, OH 43215 

Ms. Freda Levenson 

ACLU of Ohio 

4506 Chester Avenue 

Cleveland, OH 44103 

Mr. Patrick T. Lewis 

Baker & Hostetler 

127 Public Square, Suite 2000 

Cleveland, OH 44114 

Ms. Ann Yackshaw 

Baker & Hostetler 

200 Civic Center Drive, Suite 1200 

Columbus, OH 43215 

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 Re: Case No. 18-4258, Ohio A. Philip Randolph Inst, et al v. John Kasich, et al

Originating Case No. : 1:18-cv-00357 : 1:18-mc-00031 

Dear Counsel, 

 The Court issued the enclosed opinion today in this case. 

 Sincerely yours, 

 

 s/Cathryn Lovely 

Opinions Deputy

cc: Mr. Richard W. Nagel 

Enclosure 

Mandate to issue 

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0030n.06

No. 18-4258

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OHIO A. PHILIP RANDOLPH INSTITUTE, et al.,

Plaintiff-Appellee,

v.

FRANK LAROSE, et al.,

Defendant-Appellee,

v.

REPUBLICAN NATIONAL COMMITTEE, et al.,

Movants-Appellants.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE

SOUTHERN DISTRICT OF 

OHIO

BEFORE: GUY, GIBBONS and NALBANDIAN, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. This appeal of a three-judge district court’s 

order compelling discovery disclosures arises out of a challenge to Ohio’s current United States 

congressional redistricting plan and its component districts. The plaintiffs, five civil rights 

organizations and seventeen individuals in Ohio, allege that the map is an unconstitutional partisan 

gerrymander that violates the First Amendment, Fourteenth Amendment, and Article I of the 

United States Constitution. In preparation for trial, plaintiffs served subpoenas on three thirdparties—the Republican National Committee (“RNC”), the National Republican Congressional 

Committee (“NRCC”), and the NRCC’s redistricting coordinator, Adam Kincaid—for the 

production of documents related to the redistricting plan. The RNC, NRCC and Kincaid refused 

to produce the requested documents, citing First Amendment privilege, attorney-client privilege, 

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and the work-product doctrine. After a full in camera review of all of the disputed documents, the 

district court ordered the RNC, NRCC, and Kincaid to comply with the subpoenas and produce 

the requested documents. The RNC, NRCC, and Kincaid complied. On the same day they 

produced the documents, however, they appealed the district court’s order compelling disclosure 

and subsequently filed a motion to stay the order pending appeal. They contend that the district 

court erred in its application of the First Amendment privilege doctrine. Because we hold that we 

do not have interlocutory appellate jurisdiction to review the discovery order under either the 

collateral order doctrine or through a writ of mandamus, we dismiss the appeal and deny the 

request for a stay.

I.

In May 2018, the Ohio A. Philip Randolph Institute, League of Women Voters in Ohio, 

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

University College Democrats, and seventeen individual Ohio voters, brought a challenge to 

Ohio’s current United States congressional redistricting plan and its sixteen component districts as 

an unconstitutional partisan gerrymander. Plaintiffs allege that the map violates the First 

Amendment, Fourteenth Amendment, and Article I of the United States Constitution. Pursuant to 

28 U.S.C. § 2284,1plaintiffs’ challenge was assigned to a three-judge court in the District Court 

for the District of Columbia and then transferred to the Southern District of Ohio, where the case 

currently resides.

Plaintiffs allege that, in anticipation of the 2010 census, the Republican State Leadership 

Committee (“RSLC”), a national organization that seeks to elect Republicans to state-level offices, 

 

1 Under 28 U.S.C. § 2284(a), “[a] district court of three judges shall be convened when . . . an action is filed 

challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide 

legislative body.”

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formulated a plan to control the redistricting process. The RSLC implemented its plan through the 

REDistricting Majority Project (“REDMAP”). REDMAP aims to control how both state 

legislative and congressional district boundaries are drawn “to solidify conservative policymaking 

at the state level and maintain a Republican stronghold in the U.S. House of Representatives for 

the next decade.” RLSC Redistricting Majority Project, 2012 REDMAP Summary Report, 

http:/www.redistrictingmajorityproject.com/?p=646 (last visited Jan. 17, 2019). Plaintiffs allege 

that the RSLC targeted Ohio under REDMAP, spending nearly $1 million on races for the Ohio 

House of Representatives in advance of the 2010 election. Following the 2010 election, Ohio 

came under single-party control of the Republican party.

Next, plaintiffs allege that, despite that Ohio’s General Assembly has primary authority for 

drawing Ohio’s U.S. congressional districts, see Ohio Rev. Code § 103.51,2the RNC and NCRR 

influenced and managed Ohio’s redistricting efforts through “covert, backroom dealings” designed 

to manufacture a 12-4 Republican advantage across Ohio’s sixteen congressional districts. 

Plaintiffs allege that the map was ultimately drawn by Ray DiRossi and Heather Mann, two 

national Republican operatives, who worked in coordination with Adam Kincaid, the Redistricting 

Coordinator of the NRCC, and Tom Whatman, the Executive Director of Team Boehner. Plaintiffs 

contend that the redistricting meetings, which Ohio Governor John Kasich and his staff attended,

took place in a secretly-rented hotel room at the DoubleTree in Columbus, Ohio, referred to as 

“the bunker,” rather than in the offices of the General Assembly. In September 2011, the Ohio 

 

2 Under Ohio law, the state General Assembly is responsible for redistricting Ohio’s U.S. congressional 

districts. See Ohio Rev. Code § 103.51. The law provides that the General Assembly will be advised by the Joint 

Legislative Task Force on Redistricting, Reapportionment, and Demographic Research, a six-person bipartisan 

committee where three members are appointed by the Speaker of the Ohio House of Representatives and three by the 

president of the Ohio State Senate. Id.

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House approved the congressional redistricting map by a 56-36 vote. Governor Kasich signed the 

bill into law on September 26, 2011.

In the summer of 2018, while conducting discovery, plaintiffs served the RNC, NRCC, and 

Kincaid with subpoenas to produce documents related to proving whether Ohio legislators drew 

the congressional districts with partisan intent. The RNC, NRCC, and Kincaid, citing First 

Amendment privilege, attorney-client privilege, and work-product doctrine, refused to comply. 

Plaintiffs filed a motion to compel production. 

On December 2, 2018, the three-judge district court issued an order for in camera review 

of the withheld documents. On December 11, 2018, the three-judge court issued a follow-up order, 

noting that “upon further consideration, it appears that not all documents sought by Plaintiffs—

and withheld by Respondents on the grounds of First Amendment privilege—are listed on the 

Respondents’ privilege log.” DE 116, Order, Page ID 1361. Accordingly, the district court 

ordered the RNC, NRCC, and Kincaid to produce the remainder of the withheld documents for in 

camera review. 

The three-judge court then reviewed in camera all the documents at issue, with the 

exception of 11 files that could only be accessed on mapdrawing software unavailable to the court. 

After reviewing the documents and considering their relevance to the case, the court balanced the 

plaintiffs’ need for the withheld information with regard to their unconstitutional gerrymandering 

claims against the RNC, NRCC, and Kincaid’s First Amendment privilege, attorney-client 

privilege, and the work-product doctrine. On December 21, the three-judge court granted 

plaintiffs’ motion to compel in its entirety and directed the RNC, NRCC, and Kincaid to comply 

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immediately with the subpoenas. In its order, the district court wrote that the produced documents 

would be designated “Attorneys’ Eyes Only” until a reviewing court affirmed the order.

The RNC, NCRR, and Kincaid filed an emergency motion to stay the district court’s order. 

The district court denied the stay and directed the RNC, NCRR, and Kincaid to produce the 

subpoenaed documents by January 4, 2019—five days after the RNC, NCRR, and Kincaid 

indicated they would seek emergency treatment of the stay in the Sixth Circuit. Rather than filing 

a motion to stay production, however, they complied with the district court’s order and produced 

446 responsive documents on January 4.

On the same day they produced the documents, however, the RNC, NCRR, and Kincaid 

appealed the discovery order. Seven days later, on January 11, 2019, they filed a motion to stay 

the district court’s order pending appeal. In their motion to stay the district court’s order 

compelling document production, they also requested to stay the deposition of Kincaid, scheduled 

for January 17.

II.

Before considering the merits of the appeal, we must consider whether we have 

interlocutory jurisdiction to review the district court’s discovery order.

Under 28 U.S.C. § 1291, Congress has afforded our court jurisdiction to review only “final 

decisions” of district courts. 28 U.S.C. § 1291. A decision is final when it “ends the litigation on 

the merits and leaves nothing for the court to do but execute the judgment.” Firestone Tire & 

Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981). This court has explained that “[t]he final 

judgment rule prevents ‘piecemeal appeals’ . . . which can undermine the independence of the 

district judge, obstruct the resolution of just claims by means of harassment and cost, or generally 

prevent efficient judicial administration.” U.S. ex rel. Pogue v. Diabetes Treatment Centers of 

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Am., Inc., 444 F.3d 462, 470 (6th Cir. 2006) (quoting Firestone, 449 U.S. at 374). Generally, 

discovery orders “are not final decisions and cannot be reviewed unless the trial court enters a final 

judgment disposing of all claims.” Id. at 471; see also Holt-Orsted v. City of Dickson, 641 F.3d 

230, 236 (6th Cir. 2011).

Nevertheless, the RNC, NCRR, and Kincaid argue that despite our general prohibition 

against interlocutory appeals of discovery orders, we may exercise jurisdiction. They contend that 

we should consider their appeal either through the collateral order doctrine or by granting a writ 

of mandamus. We disagree.

A.

Under the collateral order doctrine, we may review a “‘small class’ of collateral rulings” 

that do not end the litigation but “are appropriately deemed ‘final.’” Mohawk Industries, Inc. v. 

Carpenter, 558 U.S. 100, 105 (2009) (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 

541, 545–46 (1949). Under the doctrine, an order is appealable if it “(1) conclusively determines 

a disputed issue; (2) resolves an issue separate from the merits of the action that is too important 

to be denied review; and (3) will be effectively unreviewable on appeal from a final judgment.” 

Pogue, 444 F.3d at 472; see Cohen, 337 U.S. at 546. In deciding whether immediate appeal is 

warranted, “we do not engage in an ‘individualized jurisdictional inquiry.’” Mohawk Industries, 

Inc., 558 U.S. at 107 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 473 (1978)). Rather, 

we focus on “the entire category to which a claim belongs.” Digital Equip Corp. v. Desktop Direct, 

Inc., 551 U.S. 863, 868 (1994). If “the class of claims, taken as a whole, can be adequately 

vindicated by other means, the chance that the litigation at hand might be speeded, or a particular 

injustice averted, does not provide a basis for jurisdiction under § 1291.” Mohawk Indutries, Inc., 

558 U.S. at 107 (internal citations omitted)

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This court has “repeatedly held” that “discovery orders are generally not appealable under 

the collateral order doctrine.” Pogue, 444 F.3d at 472; see e.g., Starcher v. Corr. Med. Sys., Inc., 

144 F.3d 418, 424 (6th Cir. 1991); Coleman v. Am. Red Cross, 979 F.2d 1135, 1138 (6th Cir. 

1992); FDIC v. Ernst & Whinney, 921 F.2d 83, 85 (6th Cir. 1990). The RNC, NRCC, and Kincaid

argue, however, that a different rule applies when the discovery order implicates the First 

Amendment associational privilege. But the Supreme Court’s ruling in Mohawk Industries, Inc.

counsels otherwise.

In Mohawk Industries, Inc., the Supreme Court declined jurisdiction to review a discovery 

appeal where parties asserted that discovery was protected by the attorney-client privilege. See 

Mohawk Industries, Inc., 558 U.S. at 112. In doing so, the court noted that “the limited benefits 

of applying the blunt, categorical instrument of § 1291 collateral order appeal to privilege-related 

disclosure orders simply cannot justify the likely institutional costs.” Id. This court and the Tenth 

Circuit have considered whether the same reasoning extends to the First Amendment associational 

privilege. Both have concluded that it does. See In re Motor Fuel Temperature Sales Practice, 

Litig., 641 F.3d 470, 482 (10th Cir. 2011) (holding that “discovery orders adverse to a claimed 

First Amendment privilege are not immediately appealable under the [collateral order] doctrine 

because they are effectively reviewable after final judgment and by other means”); Tesla Motors, 

Inc. v. Johnson, No. 17-2505 (6th Cir. Mar. 5, 2018); Tesla Motors, Inc. v. Johnson, No. 18-1010 

(6th Cir. Mar. 5, 2018).

Application of the Cohen factors further convinces us that this case is not appropriate for 

collateral order review. Most significantly, there are alternative avenues through which the RNC, 

NRCC, and Kincaid may remedy the alleged violation of their First Amendment privilege. See 

Cohen, 337 U.S. at 546. First, they may ask the district court to certify an interlocutory appeal 

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under 28 U.S.C. § 1292(b). See Mohawk Industries, Inc., 558 U.S. at 110. Second, they may—as 

they have already done—seek a writ of mandamus. Id. at 111. Third, a “long-recognized option” 

for nonparties aggrieved by discovery orders is to defy the disclosure orders and incur appealable 

contempt citations. Id. Indeed, this court has noted that the requirement “that an individual 

seeking to appeal a discovery order must first disobey the order and suffer a contempt citation . . . 

remains the general rule today.” Pogue, 444 F.3d at 472. Thus, “the availability of these 

alternatives counsels strongly against permitting immediate collateral order review of all discovery 

orders adverse to a claimed First Amendment privilege.” In re Motor Fuel Temperature Sales 

Practice Litigation, 641 F.3d at 484. Therefore, we decline to exercise interlocutory review under 

the collateral order doctrine.

B.

Alternatively, the RNC, NRCC, and Kincaid contend that we should grant a writ of 

mandamus to review the discovery order. Under the All Writs Act, this court may issue “all writs 

necessary or appropriate in aid of [its] jurisdiction[s] and agreeable to the usages and principles of 

law.” 28 U.S.C. § 1651(a). This encompasses mandamus “as a means of immediate appellate 

review of orders compelling the disclosure of documents and information claimed to be protected 

from disclosure by privilege or other interests in confidentiality.” Pogue, 444 F.3d at 472 (quoting 

In re Perrigo Co., 128 F.3d at 436). But “this is a drastic and extraordinary remedy reserved for 

really extraordinary causes.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). It is 

“usually reserved for questions of unusual importance necessary to the economical and efficient 

administration of justice or important issues of first impression.” In re Lott, 424 F.3d 446, 449 

(6th Cir. 2005). Thus, as “the writ is one of the most potent weapons in the judicial arsenal,” “only 

exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of 

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discretion will justify the invocation of this extraordinary remedy.” Id. (internal citations omitted). 

For the writ to issue, a petitioner must show that his right to issuance is “clear and indisputable.” 

Id. at 381. 

This court has embraced a five-factor balancing test to determine when to issue the writ. It 

considers whether:

(1) the party seeking the writ has no other adequate means, such as direct appeal, 

to attain the relief desired;

(2) the petitioner will be damaged or prejudiced in a way not correctable on appeal 

after a final judgment;

(3) the district court’s order is clearly erroneous as a matter of law;

(4) the district court’s order contains an oft-repeated error, or manifests a persistent 

disregard of the federal rules; and

(5) the district court’s order raises new and important questions, or legal issues of 

first impression.

In re Professionals Direct Ins., 578 F.3d 432, 437 (6th Cir. 2009). For this court to issue a writ, 

“not every factor need apply . . . but together they must present extraordinary circumstances to 

justify issuance.” Id.

Here, the first and second factors disfavor issuance. As noted in our discussion of the 

collateral order doctrine, appellants have alternative adequate means to obtain the desired relief. 

See discussion supra Section 2A. Most significantly, because the RNC, NRCC, and Kincaid are 

nonparties to the action, they can withhold the requested documents and immediately seek review 

of the contempt sanction. See Pogue, 444 F.3d at n. 6 (“Unlike a party, which can only 

immediately appeal an adjudication of criminal contempt, a nonparty can immediately appeal an 

adjudication of either civil or criminal contempt.”) (citing United States Catholic Conference v. 

Abortion Rights Mobilization, Inc., 487 U.S. 72 (1988), United States v. Johnson, 736 F.2d 358 

(6th Cir. 1984), and In re Manufacturers Trading Corp., 194 F.2d 948 (6th Cir. 1952)); In re 

Professionals Direct Ins., 578 F.3d at 438. The contempt route “ensures that the aggrieved party 

will first take a careful second look at the issue in question to determine whether it truly warrants 

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inviting a contempt citation” whereas issuing a writ “encourages appeal of every unpalatable 

discovery ruling.” Pogue, 444 F.3d at 474 (quoting MDK, Inc. v. Mike’s Train House, Inc., 27 

F.3d 116, 121–22 (4th Cir. 1994)). Thus, the RNC, NRCC, and Kincaid have an alternative means 

of obtaining immediate appellate review and protecting themselves from the compelled disclosure 

and are not “damaged or prejudiced in a way not correctable on appeal.”3 In re Professionals 

Direct Ins., 578 F.3d at 437; see Perry v. Schwarzenegger, 602 F.3d 976, 980 (9th Cir. 2010).

The fourth factor—the district court’s oft-repeated error or persistent disregard of the 

federal rules—similarly counsels against issuance. In re Professionals Direct Ins., 578 F.3d at 

437. The RNC, NRCC, and Kincaid do not contend that the district court’s order contains a 

frequent error. Nor do they argue that the order manifests a persistent disregard of the federal 

rules. We similarly do not find these elements to be present.

The third factor—clearly erroneous law—also militates against issuance. In re 

Professionals Direct Ins., 578 F.3d at 437. As the Tenth Circuit explained, “although a simple 

showing of error may suffice to obtain reversal on direct appeal, a greater showing must be made 

to obtain a writ of mandamus. Indeed, there must be more than what we would typically consider 

to be an abuse of discretion in order for the writ to issue.” In re Motor Fuel Temperature Sales 

Practices Litigation, 641 F.3d at 487 (emphasis added). For the writ to issue, then, the district 

court’s error must be egregious.

Here, the RNC, NRCC, and Kincaid contend that the district court erred in two ways: 

(1) “the district court never shifted the burden” to plaintiffs to show that their interest in the 

information sought outweighed the arguable First Amendment infringement, and (2) “the district 

 

3 The disputed documents are designated as for “Attorneys’ Eyes Only” until this court disposes of the appeal. 

Once the documents no longer have this designation, and if the appellants still perceive a harm from public disclosure, 

they can move to seal the documents from the public by demonstrating a compelling need for the documents to remain 

under seal. See, e.g., Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 220 (6th Cir. 2016).

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court used the incorrect standard by requiring only that [a]ppellants’ documents are ‘relevant’ 

[rather than highly relevant or crucial] to [p]laintiffs’ claims.” CA6 R. 12, Appellant Br., at 45. 

Neither argument compels us to find egregious error. As a threshold matter, the main cases upon 

which the RNC, NRCC, and Kincaid rely, Tree of Life Christian Sch. v. City of Upper Arlington, 

Case No. 2:11-cv-00009, 2012 U.S. Dist. LEXIS 32205) (S.D. Ohio Mar. 12, 2012) and Black 

Panther Party v. Smith, 661 F.2d 1243 (D.C. Cir. 1981) (cert granted, judgment vacated as moot

by Smith v. Black Panther Party, 458 U.S. 1118 (1982)), had limited precedential value in the 

district court. It is improbable that the district court committed egregious error if the cases to 

which the appellants point did not confine the court in the first place.

But even assuming that the district court was bound by previous cases within the same 

district,4 we do not find that the district court erred in its application of the law. The RNC, NRCC, 

and Kincaid’s assertion that the district court failed to shift the burden to the plaintiffs 

mischaracterizes the district court’s order. The district court explicitly applied the burden-shifting 

framework articulated in Tree of Life Christian Schools. DE 128, Order, Page ID 3471, 3473 (“If 

 

4 The Southern District of Ohio, adopting language from a 1927 case in the Southern District of New York, 

has said that “[i]n the absence of supervening case authority from the Supreme Court or the Court of Appeals, [the 

district court] is bound, under the doctrine of stare decisis, to follow decisions of its own judges.” Kerr v. Hurd, 694 

F. Supp. 2d 817, 843 (S.D. Ohio 2010); see also Rutledge v. Claypool Elec., Inc., No. 2:12-CV-0159, 2013 WL 

435058, at *3 (S.D. Ohio Feb. 5, 2013) (quoting Kerr, 694 F. Supp. 2d at 843).

But typically district court judges are not bound by previous decisions of other judges within the same district. 

See Camreta v. Greene, 536 U.S. 692, 730, n.7 (2011) (“A decision of a federal district court judge is not binding 

precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different 

case.”) (internal citations omitted); McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir. 2004) (“The general rule is 

that a district judge’s decision neither binds another district judge nor binds him, although a judge ought to give great 

weight to his own prior decisions.”); NASD Dispute Resolution, Inc. v. Judicial Council of State of Cal., 488 F.3d 

1065, 1069 (9th Cir. 2007) (“[O]utside of future litigation involving the same parties and their privies . . . a district 

court opinion does not have binding precedential effect.”); Algoma Steel Corp, Ltd. v. United States, 865 F.2d 240, 

243 (Fed. Cir. 1989) (“[A]mong trial courts it is unusual for one judge to be bound by the decisions of another[.]”).

Thus, given the general rule that district court judges are not bound by other judges within the district, it is 

dubious that a lone district judge can single-handedly proclaim that all precedent within the district is horizontally 

binding. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 469, n.10 (1996) (noting that “if there is a federal 

district court standard, it must from the Court of Appeals, not from the [many] district court judges in [each district], 

each of whom sits alone and renders decisions not binding on the others.”). 

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the party asserting the privilege makes an initial showing of First Amendment infringement, the 

burden shifts to the party seeking discovery to demonstrate an interest in obtaining the information 

it seeks that is sufficient to justify the deterrent effect on the constitutionally protected free exercise 

of association. . . . Having found a prima facie showing of First Amendment infringement, the 

[c]ourt next balances the [r]espondents’ burden of disclosure against [p]laintiff’s interest in the 

information.”) (citing Tree of Life Christian Sch. v. City of Upper Arlington, Case No. 2:11-cv00009, 2012 U.S. Dist. LEXIS 32205, at *5) (S.D. Ohio Mar. 12, 2012) (quoting NAACP v. 

Alabama, 357 U.S. 449, 460 (1958)). Applying the burden-shifting framework, the district court 

found that the “plaintiffs’ interest in obtaining these documents . . . support[ed] a crucial element 

of their partisan gerrymandering claim.” DE 128, Order, Page ID 3476. That the RNC, NRCC, 

and Kincaid do not like the way the district court balanced the competing interests does not 

persuade us that the district court committed an egregious error by failing to shift the burden at all.

Second, we do not find that the district court “more than” abused its discretion when it 

concluded that “the plaintiffs’ interest in obtaining these documents to support a crucial element 

of their partisan gerrymandering claim simply outweighs [r]espondents’ sweeping and conclusory 

claims of privilege.” DE 128, Order, Page ID 3476; In re Motor Fuel Temperature Sales Practices 

Litigation, 641 F.3d at 487. The RNC, NCRR, and Kincaid argue that the district court erred by 

applying the wrong legal standard to the balancing inquiry in two ways—the district court needed 

to find that the requested documents were “crucial” or “highly relevant” rather than just “relevant,” 

and this relevance should have been with respect to a claim, rather than an element of a claim, in 

the litigation. But the district court articulated the exact legal standard which the appellants argue 

was required. In balancing the respondents’ First Amendment privilege with the plaintiffs’ interest 

in the information sought, the district court noted that “the party seeking the discovery must show 

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that the information sought is highly relevant to the claims or defenses in the litigation—a more 

demanding standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1).” DE 

128, Order, Page ID 3472 (quoting Perry, 591 F.3d at 1161) (emphasis added). We have no reason 

to think that the district court did not apply the legal standard that it articulated.5 Thus, we can 

discern no error of law, let alone a particularly egregious error, that weighs in favor of mandamus.

The last factor—a new and important problem or issue of first impression—is the only 

factor that potentially favors issuing a writ. In re Professionals Direct Ins., 578 F.3d at 437. The 

Sixth Circuit has not considered how the First Amendment associational privilege intersects with 

compelled disclosures in a partisan gerrymandering case. But the RNC, NCRR, and Kincaid offer 

no more support for this factor than that “the precise dimensions of the First Amendment privilege 

appears to be a question of first impression for this court.” CA6 R. 12, Appellant Br., at 31. 

Without a more specific articulation of what the novel question is, we are reluctant to issue the 

writ.

On balance, mandamus jurisdiction is not appropriate under the five factor balancing test. 

Although there is a potential issue of first impression, all of the other factors disfavor issuance of 

the writ. Most significantly, the RNC, NCRR, and Kincaid have not demonstrated that the district 

court’s order was clearly erroneous as a matter of law nor that they have no other adequate means 

of obtaining the relief desired. Accordingly, we do not find that this is an “exceptional 

circumstance[] amounting to a judicial usurpation of power” sufficient to “justify the invocation 

 

5 The RNC, NCRR, and Kincaid spend much time laboring over the district court’s phrasing to support their 

argument, that although the court articulated the proper standard, it actually applied something different. But the 

semantic differences to which the appellants point are tautological. When the district court concluded that it found 

the “plaintiffs’ interest in obtaining these documents to support a crucial element of their partisan gerrymandering 

claim,” DE 128, Order, Page ID 3476, it found that the information went “to the heart of the matter”—that is, that the 

446 documents were central to proving partisan intent in the redistricting of Ohio’s congressional map. Black Panther 

Party, 661 F.3d at 1268; see also Davis v. Bandemer, 478 U.S. 109, 127 (1986). The district court therefore applied 

the legal standard articulated in Perry I and adopted by the Southern District of Ohio in Tree of Life Christian Schools.

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of this extraordinary remedy.” Kerr v. U.S. Dist. Court for Northern Dist. of California, 426 U.S. 

394, 402 (1976). We therefore deny the petition for issuance of a writ of mandamus.

III.

On January 11, 2019, the RNC, NCRR and Kincaid filed an emergency motion for a stay 

of the district court’s order compelling document production pending this appeal. They also 

requested a stay of Kincaid’s January 17 deposition. In determining whether to grant a motion for 

a stay pending appeal, we consider “(1) the likelihood that the party seeking the stay will prevail 

on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed 

absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the 

public interest in granting the stay.” Mich. Coal of Radioactive Material Users, Inc. v. 

Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).

First, because the RNC, NRCC, and Kincaid failed to seek a protective order barring 

Kincaid’s deposition in the district court, there is no reviewable order for this court to consider 

with respect to the stay of Kincaid’s deposition. See Fed. R. Civ. P. 26(c)(1); see also Serrano v. 

Cintas Corp., 699 F.3d 884, 899 (6th Cir. 2012) (noting that we review a district court’s decision

regarding protective order for deposition for abuse of discretion). Second, because we have 

concluded that we do not have appellate jurisdiction to issue a writ of mandamus, appellants have 

no chance of prevailing on the merits of their appeal. Therefore, in conjunction with our denial of 

their petition for issuance of a writ of mandamus, we deny their motion for a stay of the district 

court’s order compelling document production.

IV.

For the reasons stated, we dismiss the appeal and deny the motion for a stay pending appeal.

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NALBANDIAN, Circuit Judge, concurring. I agree that we lack jurisdiction over this 

appeal. I write separately to express my skepticism that the district court correctly analyzed the 

First Amendment privilege issues presented by the third-party appellants here. 

The district court provides almost no explanation as to why the documents at issue here 

meet the “highly relevant” standard necessary to overcome the First Amendment privilege. See 

Perry v. Schwarzenegger, 591 F.3d 1147, 1161 (9th Cir. 2010). That’s particularly troublesome in 

the context of this case, where the substantive contours of a partisan gerrymandering claim have 

yet to be fleshed out to a significant degree. See, e.g., Gill v. Whitford, 138 S. Ct. 1916, 1926–27 

(2018) (explaining that the Supreme Court’s attempts at answering “what judicially enforceable 

limits, if any, the Constitution sets on gerrymandering of voters along partisan lines . . . have left 

few clear landmarks for addressing the question”). It seems that liability in this case will turn on 

the intent of the Ohio legislature, not these third parties. While I have no doubt the contested 

documents are relevant to that issue, are they crucial to the plaintiffs’ claim, such that the plaintiffs 

could not prevail without them? The district court’s decision leaves much to be desired in 

answering that question. 

If the First Amendment privilege is to have any teeth—and it is an open question in this 

circuit whether it will—it must require something more than the conclusory assertion that the 

documents are crucial. On that front, I have serious misgivings about the adequacy of the opinion 

below. And so I do not join the majority opinion to the extent it suggests otherwise.

Yet, despite these reservations, I agree that under our circuit precedent we lack the ability 

to review the order here.

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