UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

OHIO A. PHILIP RANDOLPH 

INSTITUTE, et al.,

Plaintiffs,

v.

RYAN SMITH, et al.,

Defendants.

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No. 1:18cv357

ORDER GRANTING 

PLAINTIFFS’ MOTION TO 

COMPEL COMPLIANCE 

WITH SUBPOENAS SERVED 

ON E. MARK BRADEN 

(DOC. 105)

Before: Moore, Circuit Judge; Black and Watson, District Judges.

This case is before the Court on Plaintiffs’ motion to compel compliance with 

subpoenas served on third-party E. Mark Braden (Doc. 105), as well as the parties’ 

responsive memoranda (Docs. 114, 118). For purposes of the instant motion, the issue 

before the Court is whether attachments to nine emails listed on Mr. Braden’s privilege 

log are shielded from discovery by the attorney-client privilege and the work-product 

doctrine. 

I. INTRODUCTION

This case is a challenge to Ohio’s current United States congressional redistricting 

plan (“Map”) and each of its component districts. Plaintiffs allege that the Map—which 

was created in the redistricting that followed the 2010 Census and passed into law in 

2011—was drawn by the Republicans in Ohio, with the support and assistance of the 
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national Republican Party, and that the Map was designed to pack and crack voters 

across each district to establish a 12-4 Republican to Democratic seat ratio for Ohio’s 

U.S. congressional delegation. Plaintiffs allege the Map is an unconstitutional partisan 

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

I of the United States Constitution. 

Under current Ohio law, the state General Assembly has the primary authority for 

drawing Ohio’s U.S. congressional districts, and the Joint Legislative Task Force on 

Redistricting, Reapportionment, and Demographic Research (“Task Force”) is tasked 

with advising the General Assembly. (Doc. 37 at ¶ 42); Ohio Rev. Code § 103.51. 

Mr. Braden is an attorney with the law firm Baker Hostetler in Washington, D.C. 

(Doc. 114-1 at ¶ 3). Mr. Braden has been representing and/or advising government 

entities and other stakeholders on redistricting and reapportionment matters since the late 

1970s. (Id. at ¶ 4). For the 2011 redistricting process in Ohio, Mr. Braden represented 

the Task Force and its members on behalf of the Ohio Attorney General’s office. (Id. at 

¶ 10). 

Plaintiffs served two subpoenas for the production of documents on Mr. Braden. 

(Doc. 114-3). The subpoenas sought documents relating to Mr. Braden’s work during the 

2011 redistricting. (Id.; Doc. 114-2). To date, Mr. Braden has produced 177 documents 

in response to Plaintiffs’ subpoenas. (Doc. 105-2 at ¶ 18; Doc. 119-1). Mr. Braden also 

produced a privilege log listing the documents that he withheld on the grounds that they 

were shielded from discovery by the attorney-client privilege and/or the work-product 

doctrine. Mr. Braden’s revised privilege log includes 186 entries. (Id.)
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The parties conferred on several occasions regarding Mr. Braden’s refusal to 

produce certain documents listed on the privilege log. (Doc. 105-2 at ¶¶ 10-18). On 

December 2, 2018, counsel for Plaintiffs narrowed the scope of their dispute by 

requesting production of what Plaintiffs refer to as “factual documents” attached to nine 

emails listed on the privilege log. (Id. at ¶ 16). The parties could not resolve the issue, 

and Plaintiffs have asked the Court to compel Mr. Braden to produce certain attachments 

to those nine emails on the grounds that they are not subject to the attorney-client 

privilege or the work-product doctrine. 

On December 4, 2018, the Court ordered Mr. Braden to submit the disputed 

documents to the Court for an in camera review. The Court has reviewed the documents 

in camera and finds that they are not covered by the attorney-client privilege or the workproduct doctrine. 

II. STANDARD

A. The Attorney Client Privilege.

The attorney-client privilege is based on two related principles. First, subjecting 

lawyers to routine examinations of their clients’ confidential communications would 

offend the loyalty that forms an intrinsic part of the relationship between a lawyer and 

client. Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (citation omitted). “The second 

principle is that the privilege encourages clients to make full disclosure to their lawyers. 

A fully informed lawyer can more effectively serve his client and promote the 

administration of justice.” Id.
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The Sixth Circuit has set forth the essential elements of the attorney-client 

privilege:

(1) Where legal advice of any kind is sought (2) from a 

professional legal adviser in his capacity as such, (3) the 

communications relating to that purpose, (4) made in 

confidence, (5) by the client, (6) are at his insistence 

permanently protected (7) from disclosure by himself or by 

his legal adviser, (8) unless the protection is waived.

Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992) (citing United States v. Goldfarb, 328 

F.2d 280 (6th Cir. 1964)). 

Importantly, “the privilege extends only to communications and not to facts. A 

fact is one thing and a communication concerning that fact is an entirely different thing.” 

Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981) (emphasis in original) (internal 

quotation mark omitted). 

The burden of establishing the existence of the attorney-client privilege rests with 

the person asserting it. United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999) 

(citation omitted). 

B. The Work-Product Doctrine. 

“The work-product doctrine protects an attorney’s trial preparation materials from 

discovery to preserve the integrity of the adversarial process.” In re Professionals Direct 

Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009) (citing Hickman v. Taylor, 329 U.S. 495, 510-

14, 67 S. Ct. 385, 91 L. Ed. 451(1947)). The work-product doctrine shields from 

discovery (1) documents and tangible things; (2) prepared in anticipation of litigation or 

for trial, (3) by or for another party or its representative. Id. (citing Fed. R. Civ. P. 
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26(b)(3)). 

“To determine whether a document has been prepared ‘in anticipation of 

litigation,’ and is thus protected work product, we ask two questions: (1) whether that 

document was prepared ‘because of’ a party’s subjective anticipation of litigation, as 

contrasted with ordinary business purpose, and (2) whether that subjective anticipation 

was objectively reasonable.” In re Professionals Direct Ins. Co., 578 F.3d at 439 

(quoting United States v. Roxworthy, 457 F.3d 590, 594 (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.” Roxworthy, 457 F.3d at 593 (citing Fed. R. Civ. 

P. 26(b)(3) advisory committee’s notes (1970)). “Thus, a document will not be protected 

if it would have been prepared in substantially the same manner irrespective of the 

anticipated litigation.” Roxworthy, 457 F.3d at 593-94 (citing United States v. Aldman, 

134 F.3d 1194, 1202 (2d Cir. 1998)). 

As with the attorney-client privilege, “[a] party asserting the work product 

privilege bears the burden of establishing that the documents he or she seeks to protect 

were prepared ‘in anticipation of litigation.’” Roxworthy, 457 F.3d at 593 (quoting In re 

Powerhouse Licensing, LLC, 441 F.3d 467, 473 (6th Cir. 2006)). 

III. ANALYSIS

A. The Attorney-Client Privilege.

Plaintiffs argue that Mr. Braden is improperly withholding attachments to emails 

marked as Control Numbers 825, 843, 1370, and 1382 pursuant to the attorney-client 

privilege. (Doc. 105-1 at PID # 970-71). 
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Control Number 825 is an email sent on August 19, 2011 by Chris Ventura (an 

aide to Mike Dovilla, a member of the Ohio House of Representatives and member of the 

House subcommittee on redistricting) to Mr. Braden, as well as to Ray DiRossi and 

Heather Mann (Republican operatives alleged to have been engaged to consult with or 

assist the Republican members of the Task Force), Mark Lenzo (in-house counsel for the 

Ohio House of Representatives), and Clark Bensen (a consultant to Mr. Braden).

Attached to Control Number 825 is a spreadsheet, designated Control Number 826, that 

contains factual information about Ohio counties and congressional districts. 

Similarly, Control Number 843 is an email sent on September, 6, 2011 by Chris

Ventura to the same recipients as in Control Number 825. Attached to Control Number 

843 is a spreadsheet, designated Control Number 844, that contains factual information 

about Ohio counties and congressional districts. 

Control Number 1382 is an email from Mr. Benson to Mr. Braden dated March 

11, 2011. Attached to the email is, inter alia, a document marked as Control Number 

1384, which lists certain demographic data for Ohio’s congressional districts. 

Similarly, Control Number 1370 is an email from Mr. Benson to Mr. Braden dated 

March 15, 2011. Attached to the email is, inter alia, a document marked as Control 

Number 1371, which is a map that purports to show population deviation between Ohio’s 

2002 districts and the 2010 census, and a document marked as Control Number 1375, 

which, like Control Number 1384, lists certain demographic data for Ohio’s 

congressional districts. 
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Mr. Braden argues the documents marked as Control Numbers 826, 844, 1384, 

1371, and 1375 are privileged because Mr. Ventura and Mr. Benson sent these 

attachments to Mr. Braden in order to aid him in rendering legal advice. (Doc. 114 at 

PID # 1323-26; Doc. 114-1 at ¶ 15-16). The Court does not agree.

First, the Court has reviewed the documents in camera and they do not contain, or 

reference, legal advice. They contain only facts, data, and maps that are not protected by 

the attorney client privilege. See Upjohn, 449 U.S. at 395-96. Records stating the 

population of Adams County, Ohio, for example, do not become privileged simply 

because they are attached to an email on which Mr. Braden is a recipient. See Fresenius 

Med. Care Holdings, Inc. v. Roxane Labs., Inc., No. 2:05-cv-0889, 2007 U.S. Dist. 

LEXIS 12018, at * 9 (S.D. Ohio Feb. 16, 2007) (“[T]o the extent that [documents] 

contain strictly factual information rather than legal conclusions or opinions, that factual 

information cannot be immunized from discovery simply by incorporating it into a 

document which is entitled to work-product protection.”). 

Second, Mr. Braden has the burden of showing these documents are privileged, 

and he cannot meet that burden by stating in conclusory fashion that he sent and received 

the documents at issue in order to help him render legal advice. See Freiermuth v. PPG 

Industries, 218 F.R.D. 694, 699 (N.D. Ala. 2003) (“An affidavit containing mere 

conclusory statements that a document was prepared for the purpose of obtaining legal 

advice will not suffice in meeting [respondent’s] burden.”) (citation omitted). 

Third, the documents appear to be preexisting factual records that would not be 

privileged even if, as Mr. Braden contends, they were sent to him for the purpose of 
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obtaining legal advice. See Fisher v. United States, 425 U.S. 391, 403-04 (1976) (“[P]reexisting documents which could have been obtained by court process from the client 

when he was in possession may also be obtained from the attorney by similar process 

following transfer by the client in order to obtain more informed legal advice.”).

Accordingly, the Court finds the documents marked as Control Numbers 826, 844, 

1384, 1371, and 1375 are not shielded from discovery by the attorney-client privilege. 

B. The Work-Product Doctrine. 

Plaintiffs argue Mr. Braden is improperly withholding attachments to emails 

marked as Control Numbers 843, 1370, 1382, 1434, 1439, 1473, 1487, and 1499 on the 

grounds of the work-product doctrine. (Doc. 105-1 at PID # 973-74).

Control Number 1434 is an email sent by Mr. Braden to Tom Hofeller, a data 

expert, on September 6, 2011. (See Doc. 114-1 at ¶ 17). There are four attachments to 

Control Number 1434: (1) a map of Ohio’s congressional districts, marked as Control 

Number 1436; (2) a map of central Ohio, marked as Control Number 1437; (3) a 

spreadsheet of demographic data for Ohio’s congressional districts, marked as Control 

Number 1438; and (4) a file labeled “4-WAY_SPLIT_9-6.zip” that does not have a 

Control Number.1

 

 1 The documents submitted for in camera review contain four .zip file attachments; the other 

three are attached to the documents marked as Control Numbers 1473, 1487, and 1499. The 

Court has not reviewed these files. Mr. Braden informed the Court that these four files consist of 

one .DBF file and three .DCB files that are not readable with normal computer programs and 

cannot be imaged or bates numbered. (Doc. 119-2 at 2). The .DBF and .DCB files can be 

opened in a software tool called Maptitude, which was used to draw the Congressional maps in 

Ohio in 2011. “DBF” is the extension name for a “block assignment file,” which is the base file 

one imports into Maptitute to see which census blocks are assigned to what districts. (Doc. 119-
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Control Number 1439 is an email sent from Mr. Hofeller to Mr. Braden on 

September 6, 2011. There are two attachments to Control Number 1439: (1) a map of 

Franklin County, Ohio, marked as Control Number 1440; and (2) a map of Hamilton 

County, Ohio, marked as Control Number 1441. 

Control Number 1473 is an email sent by Adam Kincaid to Mr. Braden and Tom

Whatman on September 9, 2011. Attached to Control Number 1473 are (1) documents 

marked as Control Numbers 1474-1481 which consist of maps and a spreadsheet showing 

demographic information for Ohio’s congressional districts and (2) a file titled 

“Ohio_Congressional_Map_as_of_9-9.zip.”2

Control Number 1487 is an email sent by Mr. Braden to Tom Hofeller on 

September 9, 2011. Attached to Control Number 1487 are (1) documents marked as 

Control Numbers 1488-1494 and 1497, which consist of maps and a spreadsheet showing 

demographic information for Ohio’s congressional districts, and (2) a file titled 

“Ohio_Congressional_Map_as_of_9-9.zip.”3

Control Number 1499 is an email sent by Mark Braden to Clark Benson on 

September 9, 2011. Attached to Control Number 1499 are (1) documents marked as 

 

9 at 101:23-102:9). “DCB” files are “dictionary files” that “tell Maptitude where to look in the 

data file for the different fields of data.” (Doc. 119-8 at Page 192). 

2 Mr. Braden’s declaration states that documents marked as Control Numbers 1482 and 1483 are 

also attached to Control Number 1473. (Doc. 114-1 at ¶ 19). Control Numbers 1482 and 1483 

were not produced in camera, and appear to relate to the .zip file. 

3 Mr. Braden’s Declaration states that documents marked as Control Numbers 1495 and 1496 are 

also attached to Control Number 1487. (Doc. 114-1 at ¶ 19). Control Numbers 1495 and 1496 

were not produced in camera, and appear to relate to the .zip file. 
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Control Numbers 1500-1506 and 1509 which consist of maps and a spreadsheet showing 

demographic information for Ohio’s congressional districts, and (2) a file titled 

“Ohio_Congressional_Map_as_of_9-9.zip.”4

Plaintiffs argue the documents at issue—Control Numbers 844, 1371, 1375, 1384, 

1436, 1437, 1438, 1440, 1441, 1474-1483, 1488-1497, 1500-1509—are not subject to the 

work-product doctrine because they were not prepared in anticipation of litigation. (Doc. 

105-1 at PID # 973-75). 

Mr. Braden argues redistricting is a complex process that is highly contentious and

claims that each of Ohio’s redistricting efforts since the 1970s has resulted in litigation. 

(Doc. 114-1 at ¶ 5). Mr. Braden gathers data and runs analyses because failing to 

adequately consider certain issues and data can lead to a map being invalidated in 

litigation, and some of the steps that he takes would be unnecessary but for the likelihood 

of litigation. (Id. at ¶¶ 8-9). Mr. Braden argues that, if litigation over Ohio’s 

congressional map were not likely, he would not have sent or received the emails 

described supra. (Id. at ¶¶ 15-19).

The Court finds Mr. Braden has not met his burden of showing that the documents 

at issue were created in anticipation of litigation. Mr. Braden’s assertion that he would 

not have sent or received these documents if litigation over the Map was not likely are 

insufficient because there is no evidence the documents were prepared because of a 

 4 Mr. Braden’s Declaration states that documents marked as Control Numbers 1507 and 1508 are 

also attached to Control Number 1499. (Doc. 114-1 at ¶ 19). Control Numbers 1507 and 1508 

were not produced in camera, and appear to relate to the .zip file. 
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subjective anticipation of litigation. “Because documents are not protected if they were 

created for nonlitigation purposes, regardless of content, ‘[d]etermining the driving force 

behind the preparation of each requested document is therefore required in resolving a 

work product immunity question.’” Roxworthy, 457 F.3d at 595 (quoting Nat’l Union 

Fire Ins. Co. of Pittsburgh v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir.1992)). 

Consequently, the Court must examine “the circumstances surrounding the documents’ 

creation.” Id.

Mr. Braden offers no evidence of the circumstances surrounding the creation of 

any of the documents at issue. There is simply nothing before the Court from which it 

could conclude that these documents—which consist of data and maps—were prepared

“because of” anticipated litigation, as opposed to Mr. Braden’s clients’ statutory duty to 

draft Ohio’s congressional map. Similarly, there is no evidence or argument that these 

documents would have been prepared differently but for the anticipated litigation. 

Accordingly, the Court finds the documents marked as Control Numbers 844, 

1371, 1375, 1384, 1436, 1437, 1438, 1440, 1441, 1474-1483, 1488-1497, and 1500-1509, 

as well as the .zip files attached to the documents marked as Control Numbers 1434,

1473, 1487, and 1499 are not shielded from discovery by the work-product doctrine.5

 5 The fact that the Court was not able to view the .zip files in camera is irrelevant; Mr. Braden 

bears the burden of demonstrating the applicability of the work-product doctrine and did not set 

forth any argument or evidence indicating that the data in these files was created in anticipation 

of litigation. Mr. Braden states he is “not asserting privilege based on viewing the content of 

those data files” but because “the communication to which the files were attached” involved 

“Mr. Braden’s seeking and use of these documents/data sets to advise his clients and prepare for 

anticipated litigation.” This argument is not availing. As explained supra, the work-product 

doctrine only applies to documents prepared in anticipation of litigation, and there is no evidence 

that the information in these data files was prepared in anticipation of litigation.
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IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to compel (Doc. 105) is GRANTED. 

Mr. Braden shall produce documents marked as Control Numbers 844, 1371, 1375, 1384,

1436, 1437, 1438, 1440, 1441, 1474-1483, 1488-1497, and 1500-1509, as well as the .zip 

files attached to the documents marked as Control Numbers 1434, 1473, 1487, and 1499, 

immediately. Mr. Braden shall produce these documents immediately and by a hard 

deadline of 12/16/18 at noon EST, at the latest.

IT IS SO ORDERED.

Date: 12/15/18 /s/ Timothy S. Black

Timothy S. Black

United States District Judge

/s/ Karen Nelson Moore

Karen Nelson Moore

United States Circuit Judge

/s/ Michael H. Watson

Michael H. Watson

United States District Judge