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 THE REPUBLICAN 

NATIONAL COMMITTEE, 

THE NATIONAL 

REPUBLICAN 

CONGRESSIONAL 

COMMITTEE, AND ADAM 

KINCAID

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

This case is before the Court on Plaintiffs’ motion (“Motion”) to compel 

compliance with subpoenas served on third-parties the Republican National Committee 

(“RNC”), National Republican Congressional Committee (“NRCC”) and Adam Kincaid 

(collectively, “Respondents”), as well as the parties’ responsive memoranda.1

 

 1 The Motion was initially filed in a miscellaneous civil action in the United States District Court 

for the District of Columbia. The action was transferred to this Court, opened as 1:18-mc-31, 

and consolidated with this case. The Motion, Respondents’ Memorandum in Opposition 

(“Memo. in Opp”) and Plaintiffs’ Reply are filed in Case No. 1:18-mc-31 as Docs. 1, 11, and 14, 

respectively. The parties filed additional, supplemental memoranda in this case at Docs. 96, 97, 

112, and 126. 

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I. INTRODUCTION

A. Background. 

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

plan (“Map”) and each of its component districts. 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. 

Plaintiffs allege that, in anticipation of the 2010 Census, the Republican State 

Leadership Committee (“RSLC”), a national organization designed to elect Republicans 

to state-level offices, formulated a strategy to solidify and increase Republican control of 

state legislatures in states where the congressional redistricting process would be 

controlled by those legislative bodies. (Second Amended Complaint at ¶ 44). To 

implement this strategy, the RSLC organized and implemented the REDistricting 

Majority Project (“REDMAP”). (Id. at ¶ 45). REDMAP aimed to control the 

redistricting process in certain states to have the greatest impact on determining how both 

state legislative and congressional district boundaries would be drawn, to solidify 

conservative policymaking at the state level, and to maintain a Republican stronghold in 

the U.S. House of Representatives for the next decade. (Id. at ¶ 45). 

Plaintiffs allege Ohio was one of the states targeted by the RSLC under REDMAP 

and that the RSLC spent nearly $1 million on races for the Ohio House of 

Representatives in advance of the 2010 election. (Second Amended Complaint at ¶ 46). 

In 2010, the Republican Party “captured” the Ohio House of Representatives, bringing 

Ohio under single-party control of the Republican Party. (Id.) 

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After the November 2010 elections, Plaintiffs allege, the Republican Party shifted 

its focus to help state map drawers in their efforts to capture more seats through 

redistricting. They did this in part by utilizing the single-party control of the Ohio 

General Assembly to dictate the drawing of Ohio’s U.S. congressional map. (Id. at ¶ 47). 

Ohio’s General Assembly has the primary authority for drawing Ohio’s U.S. 

congressional districts. (Second Amended Complaint at ¶ 42); Ohio Rev. Code § 103.51. 

However, Plaintiffs allege the Map was actually drawn by Ohio Republican operatives 

Ray DiRossi and Heather Mann, who were provided with the RNC’s redistricting training 

materials and who worked in coordination with national Republican operatives including 

Adam Kincaid and Tom Whatman. (Id. at ¶¶ 52-55). Mr. Kincaid is the Redistricting 

Coordinator of the NRCC. (Id. at ¶ 55). Mr. Whatman was the executive director of 

“Team Boehner”—named after then-Speaker of the House John Boehner—which was 

created to work in concert with the RNC and NRCC to expand the Republican majority 

in the U.S. House of Representatives. (Id.)

Plaintiffs allege Ohio’s congressional map was designed to pack Democrats into 

four districts, and crack Democratic voters across the remaining 12 districts, to ensure 

Republicans would maintain a 12-4 advantage in Ohio’s congressional seats. (Second 

Amended Complaint at ¶¶ 59-61). Plaintiffs argue that the Map burdens their rights 

under the First and Fourteenth Amendments and exceeds the state’s power under Article I 

of the U.S. Constitution because it is a product of partisan gerrymandering. 

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B. Plaintiffs’ subpoenas and the Respondents’ responses. 

Plaintiffs served subpoenas on Mr. Kincaid, the RNC, and the NRCC on June 28, 

2018, July 2, 2018, and July 2, 2018 respectively. (Declaration of Theresa Lee (“Lee 

Dec.”) at ¶ 2).2

Respondents ran search terms provided by Plaintiffs and retrieved 23,687 

documents. (Declaration of Shawn Sheehy (“Sheehy Dec.”) at ¶ 5).3

 Of those 

documents, 22,915 were non-responsive to Plaintiffs’ subpoenas. (Id.) Respondents 

withheld 236 documents pursuant to various privileges and produced the remaining 75 

documents. (Id. at 5). 

There are three privileges at issue. First, Respondents contend some of the 

documents at issue are shielded from discovery by the First Amendment privilege. In 

support of this claim, Respondents submitted the declarations of Chris Winkelman 

(general counsel of the NRCC), Dalton Oldham (national redistricting counsel for the 

RNC), and Mr. Kincaid. All three affidavits state the documents they are withholding 

pursuant to the First Amendment privilege were intended to assist Republican candidates 

in winning elections, and disclosure of those documents would “drastically and adversely 

affect” how they communicated in the future. (Declaration of Dalton Oldham (“Oldham 

 2 Theresa Lee’s Declaration is filed in Case No. 1:18-mc-31 at Doc. 1-2, PID # 31. 

3 Shawn Sheehy’s Declaration is filed in Case No. 1:18-mc-31 at Doc. 11-1. 

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Dec.”) at ¶¶ 7-11; Declaration of Chris Winkleman (“Winkleman Dec.”) at ¶¶ 9-14; 

Declaration of Adam Kincaid (“Kincaid Dec.”) at ¶¶ 14-19).4

Second, the RNC argues that documents identified on its privilege log are shielded 

from discovery by the attorney-client privilege and the work-product doctrine. (Doc. 1-3 

at PID # 165). 

To evaluate Respondents’ privilege claims, the Court ordered Respondents to 

produce the contested documents for in camera review. (Docs. 101, 116). The Court has 

reviewed all of the documents at issue, with the exception of several documents that can 

only be viewed on mapdrawing software the Court does not have, and rules as follows.

II. STANDARD

Pursuant to the Federal Rules of Civil Procedure, parties may “obtain discovery 

regarding any nonprivileged matter that is relevant to any party’s claim or defense and 

proportional to the needs of the case, considering the importance of the issues at stake in 

the action, the amount in controversy, the parties’ relative access to relevant information, 

the party’s resources, the importance of the discovery in resolving the issues, and whether 

the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. 

Civ. P. 26(b)(1) (emphasis supplied). 

 4 Dalton Oldham’s Declaration is filed in Case No. 1:18-mc-31 at Doc. 1-3, PID # 158

Adam Kincaid’s Declaration is filed in Case No. 1:18-mc-31 at Doc. 1-3, PID # 191. 

Chris Winkleman’s Declaration is filed in Case No. 1:18-mc-31 at Doc. 1-3, PID # 173. 

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The sole question before the Court is whether the documents withheld by 

Respondents fall outside the scope of Rule 26 because they are protected by the First 

Amendment privilege, the attorney-client privilege, and/or the work-product doctrine. 

III. ANALYSIS

A. The First Amendment Privilege.

Respondents argue that some documents in their possession, and responsive to 

Plaintiffs’ subpoenas, are shielded from discovery by the First Amendment privilege 

because disclosure would result in a chilling effect on Respondents’ protected speech. 

(Memo. in Opp. at PID # 407-34). Plaintiffs argue the First Amendment privilege does 

not apply, and even if it does, Plaintiffs’ interest in the information sought outweighs the 

potential for a chilling effect. (Motion at PID # 10-25).

“Effective advocacy of both public and private points of view, particularly 

controversial ones, is undeniably enhanced by group association.” NAACP v. Alabama, 

357 U.S. 449, 460, 78 S. Ct. 1163, 2 L.Ed. 2d 1488 (1958). The “freedom to associate 

with others for the common advancement of political beliefs and ideas is . . . protected by 

the First and Fourteenth Amendments.” Perry v. Schwarzenegger, 591 F.3d 1147, 1159 

(9th Cir. 2010) (citation omitted) (internal quotation marks omitted). “Given the right to 

freedom of association, disclosure of information may be inappropriate when such 

disclosure will adversely affect an organization’s ability ‘to pursue [] collective efforts to 

foster beliefs’ and may ‘induce members to withdraw’ or ‘dissuade others from joining . . 

. .’” Tree of Life Christian Sch. v. City of Upper Arlington, Case No. 2:11-cv-00009, 

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2012 U.S. Dist. LEXIS 32205, at * 5 (S.D. Ohio Mar. 12, 2012) (quoting NAACP, 357 

U.S. at 462-63).

Assessing a claim of First Amendment privilege is a two-step process. First, the 

party asserting the privilege must make an initial showing of an “arguable first 

amendment infringement.” Tree of Life, 2012 U.S. Dist. LEXIS 32205 at ** 6-7 (citing 

Perry, 591 F.3d at 1160) (internal quotation marks omitted). A party meets this prima 

facia burden by demonstrating “an objectively reasonable probability that disclosure will 

chill associational rights.” Id. (citation omitted) (internal quotation mark omitted). “The 

existence of a prima facie case turns not on the type of information sought, but on 

whether disclosure of the information will have a deterrent effect on the exercise of 

protected activities.” Perry, 591 F.3d at 1162.

If 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. See Tree of Life, 2012 U.S. Dist. 

LEXIS 32205 at * 8. The Court is required to “balance the burdens imposed on 

individuals and associations against the significance of the . . . interest in disclosure.” Id. 

(citing Perry, 591 F.3d at 1161) (internal quotation marks omitted). In balancing the 

parties’ competing interests, courts will look to a variety of factors, including the 

importance of the litigation, the relevance of the evidence, whether the information is 

available from less intrusive sources, and the substantiality of the First Amendment rights 

at stake. See Perry, 591 F. 3d at 1161; Tree of Life, 2012 U.S. Dist. LEXIS 32205 at * 8. 

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“Importantly, the party seeking the discovery must show that the information sought is 

highly relevant to the claims or defense in the litigation—a more demanding standard of 

relevance than that under Federal Rule of Civil Procedure 26(b)(1).” Perry, 591 F.3d at 

1161. 

1. Respondents have made a prima facie showing of First Amendment 

infringement.

 

Respondents describe the documents they withheld pursuant to the First 

Amendment privilege as: (1) internal communications and meeting minutes updating 

party staff, members, and members’ staff about the redistricting progress and redistricting 

process nationwide both before and after the Ohio map was passed, and internal analysis 

concerning the political ramifications of redistricting nationwide; (2) internal talking 

points used to prepare members for interviews regarding redistricting nationwide; and (3) 

internal analysis of the contours and composition of Ohio’s enacted Congressional 

districts and draft maps. (Memo. in Opp. at PID # 405). 

Respondents argue these documents were withheld because they contained mental 

impressions and analysis and were intended to develop strategies to assist Republican 

House Members win their elections. (Id.) Respondents contend that the primary 

purpose of Republican national political organizations is to assist Republicans in winning 

their elections, and to do so, they must know the contours and composition of districts. 

(Id.) Respondents claim compelled disclosure would drastically and adversely affect how 

the RNC, NRCC, and Mr. Kincaid communicate their analysis and mental impressions in 

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the future and would frustrate the ability of the RNC and NRCC to formulate effective 

advocacy strategies. (Id. at PID # 405-06).

The Court finds Respondents have met their prima facie burden, that is, that 

Respondents have shown an “arguable First Amendment infringement.” See Tree of Life, 

2012 U.S. Dist. LEXIS 32205 at ** 6-7. Disclosure of the types of internal documents at 

issue here may have a deterrent effect on the free flow of information within campaigns. 

See Perry, 591 F.3d 1147. Because the right to exchange ideas and formulate strategy in 

private is implicit in the right to associate with others to advance shared political beliefs, 

these types of documents are protected by the First Amendment. Id.

2. Plaintiffs’ interest in the information sought outweighs the deterrent 

effect of disclosure. 

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

next balances the Respondents’ burden of disclosure against Plaintiffs’ interest in the 

information. The Court finds Plaintiffs have shown that their interest in the information 

sought justifies the potential deterrent effect of disclosure. 

First, this lawsuit, which alleges Ohio’s U.S. congressional map is a partisan 

gerrymander, is important. The Supreme Court has expressly stated partisan 

gerrymanders “are incompatible with democratic principles.” Ariz. State Legis. v. Ariz. 

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658, 192 L.Ed. 2d 704 (2015) (citing 

Vieth v. Jubelirer, 541 U.S. 267, 292, 124 S. Ct. 1769, 158 L.Ed. 2d 546 (2004) (internal 

brackets omitted)). 

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Second, Plaintiffs seek the documents at issue for the purpose of proving political 

intent, which is an essential element of their claim. See Davis v. Bandemer, 478 U.S. 

109, 127 (1986) (requiring proof of discriminatory intent in partisan gerrymandering 

cases); see also League of Women, Voters of Michigan v. Johnson, Case No. 17-14148, 

2018 U.S. Dist. LEXIS 86398, at ** 9-10 (E.D. Mich. May 23, 2018) (“Intent is an 

element of Plaintiffs’ [redistricting related] First Amendment and Equal Protection 

claims.”). The documents sought by Plaintiffs are relevant to their claim that the Map 

was drawn, not by the Ohio legislature, but by state and national Republican operatives 

acting with an intent to lock in a Republican majority in Ohio’s U.S. congressional seats. 

(Second Amended Complaint at ¶¶ 52-55). 

Respondents argue they should not have to produce the documents at issue 

because the Supreme Court stated in Bandemer, 478 U.S. at 129, that “[a]s long as 

redistricting is done by a legislature, it should not be very difficult to prove that the likely 

political consequences of the reapportionment were intended.” (Memo. in Opp. at PID 

# 402). This argument is not availing. Analyzing intent “demands a sensitive inquiry 

into such circumstantial and direct evidence of intent as may be available.” Village of 

Arlington Heights v. Metro Housing Dev. Corp., 429 U.S. 252, 266 (1977). Documents 

in the possession of the entities and individuals alleged to have participated in or 

influenced the Map drawing process are circumstantial evidence of the validity (or 

invalidity) of Plaintiffs’ claims. 

As the Court explained in a prior Order, documents that are not related to Ohio’s

redistricting (or fundraising for the same) are not relevant or proportional to the needs of 

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this lawsuit. (Doc. 102 at 18). Along those lines, Plaintiffs have not demonstrated a need 

for documents pertaining exclusively to states other than Ohio that is sufficient to justify 

the potential infringement of Respondents’ First Amendment rights. To the extent any of 

the documents withheld by Respondents pursuant to the First Amendment privilege 

pertain only to states other than Ohio, Respondents need not produce them. 

Third, Plaintiffs cannot obtain these documents elsewhere. Plaintiffs have 

engaged in an extensive effort to obtain relevant documents from other sources. 

Plaintiffs have, inter alia: (1) served Rule 34 discovery requests on three Defendants and 

seven Intervenors; (2) served Rule 45 subpoenas on 37 people and organizations, 

including Ohio legislators, Ohio staff members, the RSLC, and State Government 

Leadership Foundation, and other national republicans; and (3) submitted public records 

requests to the offices of members of the Ohio General Assembly who played an 

identifiable role in Ohio’s 2011 redistricting. (Lee Dec. at ¶¶ 21-22). Despite these 

efforts, Plaintiffs have not obtained the documents Respondents are withholding pursuant 

to privilege. (Id. at ¶ 25).5

 

Fourth, in balancing the parties’ respective First Amendment interests, the Court 

notes that while Respondents have shown the existence of interests protected by the First 

Amendment, they have not shown that those interests are particularly strong. That is, 

 5 The fact that public records requests have not resulted in production of the documents 

evidencing a discriminatory intent is not surprising in light of the fact that “officials seldom, if 

ever, announce on the record that they are pursuing a particular course of action because of their 

desire to discriminate” against a particular group. See League of Women, 2018 U.S. Dist. LEXIS 

86398, at * 12 (internal quotation mark omitted) (quoting Bethune-Hill, 114 F. Supp. 3d at 341). 

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Respondents have not convincingly shown that disclosure of the documents at issue in 

this case is likely to have a significant chilling effect on protected speech. 

Initially, while disclosure of internal political documents like those withheld by 

Respondents can have a chilling effect on the exercise of protected activities, that threat 

is “far less compelling than the evidence presented in cases involving groups whose 

members had been subjected to violence, economic reprisals, and police or private 

harassment[.]” AFL-CIO v. FEC, 333 F.3d 168, 177 (D.C. Cir. 2003).

Most importantly, however, Respondents have not set forth any argument 

explaining why disclosure of any one of the numerous documents withheld pursuant to 

First Amendment privilege would require them to change the way they communicate, nor 

have they attempted to explain how that change would frustrate their organizations’ 

advocacy goals. Instead, Respondents attempt to shield five bankers’ boxes of 

documents from discovery by stating in boilerplate fashion that disclosure would 

adversely affect the way they communicate. The Court finds Plaintiffs’ interest in 

obtaining these documents to support a crucial element of their partisan gerrymandering 

claim simply outweighs Respondents’ sweeping and conclusory claims of privilege. 

B. The Attorney-Client Privilege. 

Respondents argue that the documents listed on the RNC’s privilege log are 

shielded from discovery by the attorney-client privilege. (Memo. in Opp. at PID # 434-

36). Plaintiffs argue Respondents have not established the applicability of the privilege. 

(Motion at PID # 26-27). 

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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.

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)). 

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). 

The Court finds Respondents have not met that burden. First, the Court has 

reviewed the documents listed on the RNC’s privilege log in camera. The Court cannot 

conclude, from the face of the documents, that they are confidential communications 

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between client and attorney pertaining to legal advice. Some of the documents do not 

even appear to be communications between clients and attorneys.

6

Second, and similarly, Respondents have not set forth any evidence that any

particular document on the privilege log is a confidential communication, pertaining to 

legal advice, between client and attorney. Neither of the declarations submitted by Mr. 

Oldham—an attorney for the RNC—explains how any document on the RNC’s privilege 

log is protected by the attorney-client privilege.7

 

C. The Work-Product Doctrine.

Respondents argue the documents listed on the RNC’s privilege log are shielded 

from discovery by the work-product doctrine. (Memo. in Opp. at PID # 436-439). 

Plaintiffs argue Respondents have not demonstrated that these documents were prepared 

because of an anticipation of litigation. (Motion at PID # 27-28). 

“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-

 6 For example, REV_00023175 is a communication between Kevin DeWine and Tom Hofeller, 

who Respondents contend is a “redistricting expect” (Memo. in Opp. at PID # 409). There is no 

evidence that Mr. DeWine or Mr. Hofeller are attorneys, nor is there any evidence that they were 

in an attorney-client relationship. Similarly, REV_00023166 is a communication between Mike 

Wild, Robert Bennett, and Mr. Hofeller. Again, there is no evidence that any of these people are 

attorneys, much less that they were in an attorney client relationship. Respondents do not even 

offer any argument as to how these particular documents are privileged. 

7 Mr. Oldham submitted a second declaration (“Second Oldham Dec.”) that attempts to advocate 

for the applicability of the work-product doctrine (Doc. 96-1), but that declaration does not state 

that any document listed on the RNC’s privilege log was a confidential communication between 

client and attorney pertaining to legal advice. 

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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. 

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)). “Where an ‘undisputed 

affidavit . . . is specific and detailed to indicate that the documents were prepared in 

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anticipation of litigation or trial,’ then the party claiming work product protection has met 

its burden.” Id. at 597 (quoting Toledo Edison Co. v. G.A. Techs., Inc., 847 F.2d 335 341 

(6th Cir. 1988)). “However, application of the privilege will be rejected where the ‘only 

basis’ for the claim is an affidavit containing ‘conclusory statement[s].’” Id. (quoting 

Guardsmark, Inc. v. Blue Cross & Blue Shield of Tenn., 206 F.R.D. 202, 209 (W.D. 

Tenn. 2002)).

“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.

Here, Respondents have not adequately shown that the documents on the RNC’s 

privilege log are shielded from discovery by the work-product doctrine. First, the Court 

has reviewed the documents in camera. The Court cannot conclude, from the face of the 

documents, that they were prepared in anticipation of litigation. 

Second, Respondents have not submitted evidence sufficient to establish that any 

particular document was prepared in anticipation of litigation. Mr. Oldham declares that 

he believes “[e]very communication he reviewed marked ‘work-product’ on the privilege 

log” to have been created in anticipation of partisan gerrymandering (or other) litigation. 

(Second Oldham Dec. at ¶ 12). This conclusory, sweeping statement pertaining to every 

document marked “work-product” is not the kind of “specific and detailed” evidence 

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required to invoke the privilege.8 Roxworthy, 457 F.3d at 597. Respondents have simply 

failed to establish that “the driving force” behind any particular document was the 

anticipation of litigation as opposed to the ordinary course of business. 

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to compel compliance with 

subpoenas served on the Republican National Committee, National Republican 

Congressional Committee, and Adam Kincaid is GRANTED. Respondents shall 

produce, immediately, the following documents:

1. Entries REV_00023166 through REV_00023195, and entries 

REV_00023200 through REV_00023257 on the RNC’s privilege log (filed 

in Case No. 1:18-mc-31 at Doc. 1-3, Ex. G); 

2. The documents listed in Paragraph 7(a)-(d), (f)-(g) of Dalton Oldman’s 

Declaration dated September 30, 2018 (filed in Case No. 1:18-mc-31 at 

Doc. 1-3, Ex. F); 

3. The documents listed in Paragraphs 9(a), (e), (g)-(i), and (l)-(n) of Chris 

Winkleman’s Declaration dated September 28, 2018 (filed in Case No. 

1:18-mc-31 at Doc. 1-3, Ex. I); and

 8 The breadth of Mr. Oldham’s conclusory assertion that all documents marked “work product” 

(i.e., every single document on the RCN privilege log) were prepared in anticipation of litigation 

is troubling. For example, REV_00023166 is an email between Mr. Wild, Mr. Bennett, and Mr. 

Hofeller. There is no indication that any of these people are attorneys or that they were acting on 

behalf of an attorney, there is no explanation as to what role these individuals played, if any, in 

preparing the RNC for litigation, and there is no indication that potential litigation was the 

driving force behind this communication. That Respondents withheld this document pursuant to 

the work-product doctrine, but failed to set forth any argument at all as to why the doctrine 

would apply, gives the Court reason to question the veracity of Mr. Oldham’s broad, conclusory 

claim. 

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4. The documents listed in Paragraph 14 of Adam Kincaid’s Declaration dated 

September 28, 2018 (filed in Case No. 1:18-mc-31 at Doc. 1-3, Ex. M),

to the extent such documents are relevant to Ohio’s redistricting (or fundraising 

for the same). 

Documents and files produced in response to this Order temporarily shall be 

designated “Attorneys’ Eyes Only.” Documents so designated may be shared only with 

attorneys representing the Parties in this case or those attorneys’ consulting or testifying 

experts who agree to be bound by the protective order. If this Order is reversed on 

appeal, the Parties’ attorneys will immediately destroy or return to Respondents’ counsel 

all copies of the documents and files, as well as any work product that resulted in whole 

or in part from the Attorneys-Eyes-Only documents, and will direct any consulting or 

testifying expert who has received a copy of the documents or files to destroy those 

documents or files and work product resulting therefrom. During the pendency of any 

review by an appellate court of this Order, if a Party seeks to file an Attorneys-Eyes-Only 

document with this Court, or use it as an exhibit at trial, the Party will seek leave of this 

Court before doing so. If a reviewing court affirms this Order, then any document or file 

produced pursuant to this Order will no longer be designated “Attorneys’ Eyes Only” or 

fall under any other provisions of the protective order. Moreover, if Respondents fail to 

appeal this Order within SEVEN DAYS, the Panel will vacate this Order and the 

documents and files produced in response to this Order will no longer be designated 

“Attorneys’ Eyes Only.” 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 128 Filed: 12/21/18 Page: 18 of 19 PAGEID #: 3482
19

IT IS SO ORDERED.

Date: 12/21/18 /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 

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 128 Filed: 12/21/18 Page: 19 of 19 PAGEID #: 3483